By Kurt Olson
Most people would tell you they value their privacy. However, these days we all rush to publish the most intimate details of our private lives on Facebook, Twitter, and other social media outlets. Whether desiring to ascend a bigger stage, make more friends without the burden of face-to-face contact, or reach a bigger audience for their viewpoints, most remain blissfully ignorant of the potentially devastating consequences of thoughtless posts.
Unfortunately, these consequences can include criminal prosecution and
litigation catastrophes in civil suits. One such catastrophe is
highlighted in one of those cases that robs you of sleep because of what might
have been. I recently had a client (let's call her Annie) who seemed to
have a pretty good claim against an employer for constructive wrongful
termination; Annie had to resign because of abusive practices in the work
place. Various laws protect workers from having to endure such
environments, and these laws include worker's compensation statutes.
The abusive practices in this case became so severe that Annie's mental health
was at risk, and perhaps her mental health (or lack thereof) helps explain her
later behavior. The abusive practices included the employer severely
criticizing Annie for failing to appropriately discipline employees under her
control; repeatedly calling her at home when she was taking legitimate sick
days to tell her that she needed to stop being a slacker; and writing scathing
performance reviews which sharply conflicted with others' reviews of Annie's
actual performance. Because of these practices, Annie brought a claim
against the company claiming that it had caused generalized anxiety disorder,
post-traumatic Stress, and depression.
Annie filed her claim with the Worker's Compensation Board. After each
side filed various documents with the board, a hearing was scheduled. Annie was a convincing witness, and she had two witnesses who either had
suffered some of the same abusive practices or could testify about Annie's good
performance and the employer's questionable practices. After our
presentation, I was confident we'd established a strong case that the employer
should have to compensate Annie.
The lawyer for the employer began by calling Annie as his first witness. His
goals were to discredit her testimony, to show that the company had not caused
her injuries, and to show that her injuries were not as severe as she
claimed. He succeeded in tilting the hearing officer's scales in the
company's favor because Annie had forgotten to tell me about some rather
After some preliminary questions, the company's lawyer pulled out a Facebook
posting in which Annie had regaled her "Friends" with her weekend frolic at a
Caribbean resort with one of our two witnesses. The tale recounted how
the two had attended a wine tasting, cavorted on the beach with some bronzed
Adonises, and generally had a swell time -- all while Annie was suffering from
generalized anxiety disorder, post traumatic stress syndrome, and
depression. I felt like I'd been kicked in the gut; even though I had a
chance to ask Annie whether her therapist had recommended such a trip to help
her deal with her anxiety (he had done so), the damage had been done.
More damage ensued. Annie had alleged that she could never return to work
at company headquarters, but she would accept reassignment elsewhere. Upon further questioning by the company's lawyer, Annie repeated what she had
said in her complaint. Then, the company's lawyer pulled out another document:
an email from Annie to a manager in which she suggested that she would accept
an assignment at some other location or at headquarters under a
different supervisor. After bending double from the kick to the gut, I
now felt the sting of a rising uppercut to my chin, sending me reeling into the
corner of the hearing room.
When it was over, the hearing officer informed us that she would send out her
opinion within 30 days. Over dinner, I gave Annie the bad news: I had
seen the hearing officer express a frown only twice during the process: once
when she heard about the Facebook posting and the other when she heard about
the e-mail. I told Annie the likelihood of a ruling in our favor was not
good, but I didn't have the heart to tell her that she should have told me she
was a social media chatterbox and liked to share her thoughts in unencrypted
A word to the wise to all your clients is in order: Before posting, texting, or e-mailing, resist the urge. The bigger stage you seek is made of cracked, splintered floorboards.
ABOUT THE AUTHOR
Kurt Olson is an Associate Professor at the Massachusetts School of Law in
Andover, MA. He teaches Writing, Research, & Trial Advocacy, Legal
Ethics, Internet and the Law, Law Office Technology, and Environmental Law.