Facebook Pictures’ Use Evolving in Workers’ Compensation Cases

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

We routinely advise our clients to be aware of the possible discovery of Facebook and other social media sites. First step – check your privacy settings. If you do not control your privacy settings, your employer or the insurance carrier may easily access your posts. Also, do not post comments about your case, your employer, or your injury online.

In the past, I have warned about the possible pitfalls of social media on a workers’ compensation claim.

However, the Nebraska Workers’ Compensation Court has never really ruled on Facebook in the context of discovery matters in a work comp claim, meaning how much access can your employer have to your Facebook account if you file a workers’ compensation claim? 

Recently, however, the Nebraska Workers’ Compensation Court (at least one judge) has taken the position that in order for your employer to gain access to photographs from your Facebook profile, it must “make a showing of the necessary factual predicate underlying [the] broad request for access.” In other words, your employer must have a decent reason to suspect that a certain photograph or something from your Facebook account has the potential to be relevant to the work comp case before the court will simply grant full access to your Facebook account to your employer.

Therefore, depending on your situation, your Facebook may be safe from your employer to some degree. However, this is a cautionary tale to remind you that even though your employer cannot simply have blanket access to all of your Facebook photos – at least according to one Nebraska judge – it does not mean that your Facebook photos or posts are necessarily safe from your employer gaining access to them at some point during your work comp case. I think the judge in this case takes a step in right direction, but you still must be aware that anything you put on Facebook may be subject to discovery (i.e., your employer may still possibly get access to it) at some point in the future.

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