The no-fault nature of the Vermont workers’ compensation system means that almost any worker injured on the job will receive benefits. That system relies on an assumption of truthfulness from the injured worker as to the circumstances, extent and nature of the injury. When an injured worker is found to have misrepresented their injury, it’s possible the employer will be able to defend against the claim or discontinue ongoing benefits.
This past spring the Vermont Legislature passed legislation addressing employees’ social media account privacy and prohibitions. The law goes into effect on Jan. 1, 2018. The restrictions established on what an employer can and cannot do in the context of social media should be adhered to, even in the context of workers’ compensation claim investigation.
First among those restrictions, an employer cannot request, require or coerce an employee to access their social media in the presence of the employer; divulge or present to the employer content from their account; change the account or privacy settings to increase access and visibility to its contents; or disclose their username and password or turn over an unlocked personal device for the purpose of accessing the employee’s social media account.
One of the most important restrictions in the law, and what even before the passage of this legislation was simply smart advice, is that an employer cannot require or coerce an employee to add anyone, including the employer, to their contacts. Going even further than that, we typically advise employers not to send a friend request — or follow, or like — an injured worker or the worker’s friends and family. Doing so might allow you to see additional content not visible to the general public, but you run the risk that at trial or formal hearing the opposing party may try to keep out of evidence whatever information is obtained through these means. However, if the injured employee reaches out and friends someone in management at their employer, it is fine for that employee to accept the friend request.
What, then, can an employer do to investigate possible fraud in workers’ compensation claims?
Start by seeing what information on social media accounts has been made public. Although many injured workers are instructed in tightening up their privacy settings by their attorneys, not all receive or heed this advice. Additionally, you can expand your search beyond the injured employee’s profile to that of relatives and friends. Searching for these people may yield photos or posts in which the injured employee is tagged and with the friend’s or relative’s more lenient privacy settings they may be visible to the general public. Another option is to search for the pages or accounts of organizations, teams, gyms, and the like where you know the injured worker is involved. Often these businesses or organizations will post photos of events, especially sporting events like Crossfit competitions and the many running events that take place each year, from fun runs to marathons.
When you do find information you think may contradict the injured worker’s claimed disability, it is important to preserve the information. You should not assume that the content is going to remain publicly available for you to go back and review at a later date. Copy the URL of the webpage you are viewing, if on a computer, and save it to your file. You should also screenshot or print the screen to save the content in either printed or electronic format for your file.
Employers should refrain from asking another employee who is connected to the injured employee through social media to review the injured worker’s accounts and report back to them about its content. However, if you are approached by another employee who wants to report something they saw or read on the injured employee’s account, it is acceptable for you have this knowledge and save whatever documents or emails you receive for possible further investigation of fraud. If you have any question about what you are doing, consult with an attorney.
Glenn S. Morgan is an attorney with Ryan Smith & Carbine in Rutland, where he is the supervising partner of the firm’s workers’ compensation group. Associate attorney Stephanie P. Romeo, Esq. contributed to this column.