But it’s not just open posts to X or other social media platforms that companies use that are a concern. So are the private-messaging parts of social media platforms like Facebook’s Messenger and Instagram’s Direct Message services, as well as the instant-messaging services cell phone users can access. Supervisors routinely respond to messages from employees about missing a specific shift due to illness or injury and about assignments and the like. Communication that used to take place over landlines or at a press conference now takes place over a long list of social media services.
What happens in the case of a lawsuit? You know that if sued, employers must preserve the evidence for potential use in litigation. That’s when the authenticity of these posts comes into question. Did the post originate from whom it purports to have derived? Can litigants gain access to the record showing when and who made the post? And most importantly, what happens if your organization destroyed the social media accounts or posts on those accounts?
Spoliation. Spoliation happens when an organization knows there’s a legal claim and its records may be relevant. If a worker was fired for breaking a call-off rule, he may claim he did communicate his anticipated absence by messaging his supervisor. If the employer can’t produce that evidence for the court because someone deleted it after the company knew there was a claim, that may be a case of spoliation. Essentially, it is destroying the evidence, and the court will generally instruct the jury that they can make a negative inference against the party that deleted the information. In this case, that might mean inferring that the employer’s stated reason that it fired the worker for not calling off was a pretext for discrimination.
Due diligence. To avoid spoliation, know how to preserve all forms of electronic communication, including that accomplished through social media platforms. Here’s how:
Tell managers or supervisors not to use their personal devices to communicate with employees. You don’t have control over whether they can delete information.
