When Worlds Collide: An Arbitrator's Guide to Social Networking Issues in Labor and Employment Cases

By Arrington, Robert L.; Duffy, Aaron et al. | Dispute Resolution Journal, November-January 2011 | Go to article overview

When Worlds Collide: An Arbitrator's Guide to Social Networking Issues in Labor and Employment Cases


Arrington, Robert L., Duffy, Aaron, Rita, Elizabeth, Dispute Resolution Journal


In the age of social media, users have more options to connect with like-minded people and express their opinions, while companies have more channels to promote and sell products and services. What does this mean to the arbitrator? It could mean a new source of evidence, particularly in labor and employment disputes. This article explores the issues involved in cases that pertain to social networking activities and information derived from social media. The authors'advice to arbitrators: It is inevitable that social networking issues will figure more prominently in arbitrations, so they should prepare themselves now by understanding social networking and how it relates to various laws.

SocIal neTWorkIng SITeSlike Facebook, Twitter, MySpace, and linkedIn have exploded in popularity in the last few years. Facebook alone has more than 800 million active users,1 meaning that if Facebook were a country, it would be the third largest in the world, behind only china and India.2 as social networking grows, the worlds of social networking and arbitration inevitably will collide with everincreasing frequency.

Since social networking is ubiquitous, evidence from social media will undoubtedly find its way into labor and employment cases, but it could be involved in almost any kind of case. For this reason, arbitrators need to become familiar with all kinds of social networking platforms, learn how to deal with this kind of evidence, and understand the applicable statutory and case law. This article presents an overview of social networking, the evidentiary issues they raise, and a short primer on the law that could apply to social networking activity. This discussion is intended to provide some guidance for employers that wish to regulate social networking by employees, as well as introduce arbitrators to the social networking phenomenon, so that they are not "flummoxed" by it, even if, by being so, they may consider themselves in good company.3

Social Networking at a Glance

Social networking involves posting personal information and other content on Web sites like Facebook, and MySpace and sharing some or all of that information with other people. Users of these Web sites typically have some control over the people who may access the content they post. For example, a user may share his or her profile and postings with all other users of the Web sites, or restrict viewing to family, close friends, or only one or two people. The kinds of content typically shared on social networking sites in - clude vacation photographs, comments about the user's day, and lists of the user's favorite bands, movies, and authors, among other things. How - ever, postings on social networking site are not limited to such items.

People who put content on Facebook and similar sites rarely consider the legal consequences of their postings, although they should. Say, for example, that the user posted a gleeful tweet4 about catching the "Yankees cremating the Red Sox" on a day when she called in sick to work. The user ends up being called as a witness in an arbitration arising out of injuries sustained during a Red Sox-Yankees fan altercation, where she testifies that she was sick all day and did not observe relevant events. The tech-savvy lawyer for the adversary mines all social networking sites, finds this posting, and introduces it as evidence. The witness never envisioned her post being used in a dispute resolution forum. This example demonstrates that social networking activity can play a role in all types of disputes, from those involving personal injury5 and divorce6, to labor and employment claims.7

Arbitral Discovery and Social Media

Suppose one party to an arbitration wants to view the other party's Facebook page, which is restricted to "friends," and the other party refuses, citing privacy concerns. What should the arbitrator do? The arbitrator has discretion to allow discovery under most arbitration rules, unless the parties have otherwise agreed. …

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