When an Employee Tweets

 Another day. Another TWITTER event. This time it involves the National Football League. Last week, star running back Arian Foster sent a copy of a MRI image showing his severely injured hamstring to all of his followers by TWITTER. His “tweet” included an explanation of where his hamstring was specifically damaged.  

The problem is that NFL teams fight hard to keep this type of information private. Foster is one of the top running backs in the league and his availability for the first week of the season, which starts next weekend, was in question. NFL teams often guard this information zealously. They do not want the opposition to find out how injured their players are. Even if a player is not going to play, NFL teams want their opponents to have to prepare as if Foster or another star player would be available.

There is also the gambling angle. The league administration has strong and very specific rules about the disclosure of injury information. Teams must be accurate in the disclosure of their information so that other teams aren’t prejudiced. This, of course, is used by the gambling industry to make sure that the betting lines are accurate. One can only image how quickly the betting line moved before the Houston Texas operator after Foster sent his MRI to the world. Once can also imagine that his MRI was viewed by the team physicians for the other 31 other teams in the league, including the Texans first opponent, just to determine the likelihood that Foster was going to be able to play. On the way to work this morning I was listening to sport talk radio show, were one of the commentators,  an ex-NFL player said that Foster’s MRI showed his opposition exactly where they needed to hit him to do the most damage. 

On the same show, they interviewed Brian Kelly, the head coach of the Notre Dame Fighting Irish football team, about his players’ use of TWITTER. During his interview, he made a great point. He said that TWITTER and Facebook and other forms of social media are here to stay. You cannot tell players, even college ones, that they can’t use it. So, instead, he teaches them how to manage it. 

Employers should use the same approach. Don’t try to prohibit outright use of TWITTER by your employees. Social media is here to stay. I recently read an article that predicted  that — in three to five years — e-mail accounts run by social media sites will be used for 80% of the business e-mail in the world. This is stunning. One can only imagine the implications.

Social media isn’t going any where and TWITTER, much to the chagrin of many, isn’t going anywhere either. Employers should assume that their employees will use TWITTER an outright prohibition on TWITTER and social media is doomed to fail.

Players must also adopt a specific policy. This policy must specifically identify the company that should not be disclosed by employees by either via TWITTER or other forms of social media. The policy is important because it gives fair notice to employees that their conduct may result in termination. 

If you ever tried a case in front of a jury, you quickly realize the jurors are not interested in applying the technicalities of the law. Juries are interested in fairness. After they issue a verdict and they walk out of the courtroom, they want to feel like they spent their time dispensing justice, not legal technicalities. 

This is why a policy is so important. It is inherently fair to fire an employee for using TWITTER after they have been advised in writing that doing so could result in their termination. Fair notice is an essential element of the fairness that juries look for when they are deciding cases. This is why a policy is so important. 

Like Coach Kelly, employers should train their employees on the right way to use TWITTER and other forms of social media. Just like with email, employees must assume that every “tweet” will end up on the front page of The New York Times. As everyone knows, “tweets” are potentially discoverable. “Tweets” could be saved for several months or even longer on Blackberries, iPhones and iPads. During this training, employees must also be told that they need to avoid the impulse to TWITTER right away about a work event. You can’t take a tweet back; there is no “pullback” button. Once a tweets is on the internet, its there forever. Employees should be encouraged to be very judicious in their work-related “tweets”, to the extent they are even authorized to do them. And before pushing the send button, employees should to think about the way a potential “tweet” could be used against them or use of other competition.

To protect their confidential information, employers should also monitor the use of TWITTER and other forms of social media. To protect confidential information in the courts, employers must prove that they took reasonable efforts to protect the secrecy of that information. For certain types of employers who know that their employees essentially engage in social  media and are authorized to do it for some business purposes, these employers should actively monitor the internet to make sure that their confidential information and trade secrets are not being disclosed by their employees to the rest of the world.

In the same vein, employers must be very careful to limit access to the most secret information to a small group of employees. As Mark Zuckerberg, Facebook’s founder and CEO stated, privacy in the world is essentially dead. Keeping this in mind, employers should work their IT departments to make sure that their most confidential information is protected by limiting internal and external access; by setting up the data so that it cannot be transferred, copied, and/or printed; and by using software that easily tracks who accesses the document, when and what has been done with it.

So, once again, though the world of TWITTER can provide valuable insight for employers. The NFL literally spends millions of dollars trying to protect information regarding players injuries. Players are often told not even to tell their family about their injuries because teams will fear that this information will be divulged. Now, because of an iPhone and TWITTER, the world can see a very clear picture of Arian Foster’s MRI showing a significant injury to his hamstring.  And there is no way for him to pull it back. This is the kind of story that keeps most employers up at night, and it’s an important lesson for us all.

About The Author

Dave Walton is an experienced litigator with a detailed, hands-on understanding of technology and e-discovery issues. He is vice chair of Cozen O’Connor’s Labor & Employment Department, managing director of the firm’s Electronic Discovery Practice and Advisory Services (ePAS), and co-chair of the firm’s E-Discovery Task Force. Dave brings a unique combination of skills to his practice – in addition to substantial trial experience, he offers a demonstrated understanding of technology and its impact on litigation outcomes.

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