Original Post: Employment Law Implications of Location Based Social Media, by Mark J. Chumley
So you just got comfortable with your blog, LinkedIn, and Twitter. What about location based social media? Part game and part micro blog, these websites allow you to check in throughout your day with your location and related comments while earning various online honors and prizes. Thus far, it seems that the two market leaders are Foursquare and Gowalla and they are fighting for market dominance. According to FastCompany.com:
The companies both launched eight months earlier at the South by South West interactive festival. Their products pioneered the then-uncharted territory of location-based social networking. On Foursquare, a user “checks in” to locations (as pinpointed via satellite) to invite along friends, leaves tips glued to GPS coordinates (like ordering advice at restaurants), and competes for digital rewards in the form of badges, or titles like “mayor” (for the user who checks in the most at a venue). Similarly, Gowalla asks users to check in places in order to collect digital goodies, akin to virtual geocaching.
In addition to Foursquare and Gowalla, there are many other location based social media sites. If your employees are not already using one, they soon will be.
What are the legal implications of these sites? Initially, critics pointed out the fairly obvious fact that telling people where you are throughout the day also lets them know where you are not, e.g. your house. This lead to the satiric site pleaserobme.com, which purports to demonstrate the danger of location revealing social media sites.
Of course, there are also employment law implications. If you tell the world where you are (e.g. a sports bar) and what you are doing (e.g. drinking beer and watching NCAA basketball), it also reveals where you are not (e.g. your office) and what you are not doing (e.g. working). Speaking as a management side attorney, that is information I can make use of in litigation.
This kind of evidence could also play a significant role in wage and hour litigation, where plaintiffs often claim to have worked impossibly long hours. It is difficult to prove a negative, e.g. that the plaintiff was not working 12 hour days, but a separate record created via a social media site could help. Conversely, posts by employees stuck at work late in the evening may have negative implications depending on the circumstances. Frankly, I could spend the whole day thinking of scenarios in which location based social media plays a role in employment litigation. For example:
- Former employee with a non-compete creates a record of visiting certain customers or spending a significant amount of time in certain territories;
- Plaintiff claims emotional distress and diminished enjoyment of life but social media tells another story;
- Hiring manager tracks applicant’s locations on social media and inadvertently becomes aware of the neighborhood where applicant lives, creating potential claims of discrimination;
- Employee on FMLA leave makes a record of activities that undercut need for leave.
The bottom line is that location based social media is a) another indication of the need for employers to adopt effective social media policies; and b) a potentially rich source of evidence in employment litigation.