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How to use Social Media In Workplace Investigations

Posted on the 02 October, 2011 at 10:40 pm Written by in Social Media

Summary Many employers overlook social networking sites in conducting workplace investigations. These sites provide fertile ground for the discovery of evidence in disciplinary and other matters. I often tell clients that having a case is one thing, but proving it is another. Social Media can certainly provide a company with an advantage in this regard. This post surveys how. Introduction I was again alerted to the benefits of social media in conducting investigations, while watching one of the first rugby World Cup games being broadcast. The camera fell on a SA Rugby Supporter who in big bold letters displayed a banner to the world reading – “my wife thinks I’m in Paarl! “ I cant but wonder if the poor fool has managed to find himself a good divorce attorney. You have the right to post what you please. But anything you say and do could be held against you. Before the surge of social media as a communication tool, it was relatively easy to keep the divide between ones work life and private life separate. Social media has had the effect of shrinking that divide. Nowadays people share details about their work, their bosses, their colleagues and their social activities freely and openly on social networks. Very little in today’s digital world is private. This “sharing” is also not an activity limited to a few sociable individuals either. If you have viewed recent membership statistics for Facebook, You Tube, Twitter and Linked-In, you will begin to appreciate the global move to connect and share! Even those who are not social butterflies by nature find social media alluring. The illusion (or is it delusion) of anonymity cyber space makes it an easy and seemingly safe place for the social and antisocial to hang out. Social Networking Sites – fertile source of evidence This illusion of anonymity and invisibility makes Social Media sites fertile ground for investigations, including workplace investigations. Employees often forget what they have posted on their social network sites or forget that their friends friends friends etc maybe able see their posts or believe (mistakenly) that no-one in the office will find out. Unfortunately networking by its very nature makes the chances of being caught out high! If that’s the case why have we not had more cases, arising from social media, appear before the CCMA or our courts you may ask. Two reasons I think. Firstly, social media sites are generally overlooked for investigative purposes and secondly those responsible for conducting investigations probably do not have access to social media sites in the workplace let alone having the know-how to reap the benefits it can provide in this area. Application of Social Networking Sites in Workplace Investigations A great benefit of evidence garnered from social sites is that it is recorded in writing or in a photograph! Having written or documentary evidence in support of any case is always hugely beneficial. Also, disputing the reliability and authenticity of this evidence will be extremely difficult for an employee who appears to have authored the material. For this defense to succeed, the employee would have to show that the post/s were not theirs as their social network account was hacked. Furthermore, social sites can be a valuable source of information to verify an employee’s explanation or to tarnish the credibility of the explanation given by an employee in their defence to some form of wrongdoing. An employee who claims to have been unable to notify the office of their absence because they had no airtime would find it difficult to explain a tweet advising their followers of the best shoe sale they have been to at shop ABC. Social media can successfully be used to establishing a timeline of events in conducting a workplace investigation. A timeline can be critical to discovering loopholes or inconsistencies in an employee’s case. For example, an employee may claim to have attended a customer site inspection from 11h00am to 13h00. At 11h05 he checks-in at a News Café using Four Squared (a geo-location social networking site) which is nowhere near the customer’s site. In some reported U.S cases, employees who have called in ill have been silly enough to then post pictures of themselves and their mates at a party, while others have exchanged posts about their incredible golf game. Social networking sites can also be invaluable in gathering evidence that an employee has breached a restraint of trade agreement or is planning to commit such breach. Are restraints even enforceable I hear you ask? In short – yes. Reasonable restraints are binding and enforceable in law. In some cases in the U.S.A, employees have used social sites to entice customers to follow them to a new workplace or created fan pages for a company they have opened in direct competition with their old employer. A “depressing” ending The insert below is a beautiful example of how social media can assist employers in collecting evidence of offences. In summary, an employee Nathalie Blanchard was medically boarded, following a diagnosis of severe depression. In terms of South African Law, severe depression once diagnosed may constitute a disability. Despite her severe depression Nathalie saw fit to post photos on her facebook wall showing her smiling while at a birthday party in a strip club and on a vacation on the beach. The insurer got site of these photographs and immediately launched a fraud investigation. Dear Nathalie argued that she went on holiday to make her feel better and that the photographs show only momentary happiness. You decide. Please let me know if you have used evidence obtained from social media sites to take disciplinary action against employees or discredit an employee’s version of events.

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