On September 21, 2021, the NJ Supreme Court ruled on an issue that arose from an attorney’s use of Facebook in its early days. In 2007, Defendant’s attorney’s paralegal sent a Facebook “friend” request to the plaintiff to access his private Facebook posts in a personal injury case. The paralegal’s Facebook profile did not indicate that she worked for a law firm or the name of that law firm, giving the plaintiff no idea that she worked for the “other side.” The NJ Supreme Court ruled that the attorney had violated the NJ Rules of Professional Conduct in instructing his paralegal to send a Facebook friend request to an opposing litigant, violating RPC 4.2 which prohibits an attorney from communicating directly with another attorney’s client.
While the initial fact pattern may have taken place in 2007 and it is unlikely, especially following this ruling, that an attorney may try to gain access, surreptitiously, to your social media accounts, you are still exposed. Beware of connecting with co-workers and supervisors on your purely personal social media accounts (Facebook, Instagram, etc.) Once you are separated from your job or bring a case against your employer, your personal information, your travels, your posts may all become relevant and exposed during discovery. Also, be aware that in litigation, employers can and do ask for access to your social media accounts under the guise of assessing your credibility, mitigation of damages, disclosure of proprietary and confidential information, or to ascertain what you had said about the employer to your network (i.e. defamation).
While you have an expectation of privacy in a closed, password-protected social media account, protecting your privacy is only as good as the people you let into the inner circle. Mixing work friends with your personal social media networks blurs the lines and leaves you vulnerable to exposure to your employer. Once connected to your social media, and from your posts, employers now know that you are on vacation, or at the gym, or eating out, etc. when you claim to be homesick or to be working from home.
While LinkedIn is a professional forum, you want to be extremely careful about your posts and comments, and profile changes in this venue as well. Employers take great efforts to protect their brand and reputation. So, if you, posting as an employee of Company A, say something about the company, the industry, a competitor, or individuals working at the company, you are likely to be running afoul of your internal social media policy and could be subject to discipline and even termination. Be especially careful of political speech as well since a private employer is not prohibited from terminating you if they deem your speech to be offensive, inappropriate, contrary to their personnel policies, or out of line with their values.
The Bottomline: Be very careful (completely avoid) connecting with work colleagues and supervisors on your personal social media accounts. As you draft your social media posts, ask yourself if you are okay with seeing this as Exhibit A being presented to a court.