Taking a Therapeutic Approach to Trial Law: Concerns Over Unethical Business Practices Lead to a Career Providing a Voice for the... Is the Sky Falling Yet? 2019 Law Firms in Transition Survey: The results of the 2019 Altman Weil annual Law Firms in Transition survey are receiving... Going In-House: What Law Firm Partners Need to Understand: General counsel roles are often looked at as the "holy grail" in a lawyer's career. These... HOW AND WHY Employers Use Recruiters: When Companies Use Recruiters - For in-house legal positions, companies use recruiters... 23 Secrets THAT BUILD CLIENT LOYALTY: Loyalty is built on the value/price equation, which says: A client will stay loyal to you... What Does It Mean to Develop Your Personal Brand?: Yesterday, I had the pleasure of participating in the inaugural New York City event for... Why the Legal Industry Can Handle the Next Recession: The last recession caught a robust and in-demand legal industry unprepared, and the... 5 Keys to an Effective Law Firm Divorce. Being Smart When the Thrill Is Gone: “A discord of personalities” sometimes describes the genesis for marital divorce. It... Business Lawyers for Business People.: Dunn DeSantis Walt & Kendrick Gather Momentum and Carve a Unique Path Forward. -... Network Now for Success Later: Today, the art of conversation has changed with the use of technology and our ability to...
Executive Presentations-468x60-1

Snap! And You Miss It

Snapchat and other photo-sharing apps have redefined how users and employees share information. Due to the ephemeral nature of Snapchat photos and videos, employers may face hurdles in identifying and investigating workplace misconduct. This article examines how employers can navigate employee issues in an era of “disappearing” social media.

It is almost hard to imagine that barely two decades ago, we used cameras with physical reels to record our memories. Today, photo reels, and to some extent, even standalone cameras are remnants of a bygone era. In their place are a multitude of online photo-sharing platforms, like Snapchat, Instagram and Facebook. Printed photos have turned into “live feeds.” Scrapbooking has given way to Facebook timelines. And photo albums have morphed into 24-hour Snapchat “stories.”

Photo-sharing has increasingly become ephemeral, and fleeting, which is not always a positive from an employer’s perspective. As with other forms of social media, platforms like Snapchat can be a prime tool for inappropriate conduct, like harassment and bullying. More worryingly, the disappearing nature of photos on such platforms means it may be more difficult to detect, address, and rectify such improper conduct, and indeed use such evidence in court.

The Curious Case of the Disappearing Photo: The Advent of Snapchat

Snapchat has gone from being a relatively unknown app in 2011 to now exploding on the internet. Like its social media counterparts Instagram, Facebook and Twitter, the app has commanded worldwide attention. It now boasts over 187 million users. A 2018 Pew research poll makes clear that a majority (63%) of Snapchat users visit the platform on a daily basis.

Part of what makes Snapchat so appealing to its users is the “disappearing” nature of its photos. The app allows users to post messages that last for only 10 seconds before they disappear. The app also erases pictures and videos users upload within 24 hours. Moreover, the messages “auto-destruct,” meaning that unless one takes a screenshot, the content disappears in a matter of seconds.

Disappearing images are by no means limited to Snapchat. Facebook and Instagram have launched their own version of “stories,” which also allow users to post 24-hour photos and videos that disappear.

Snapchat as a Source of Evidence

Given the ever-presence of apps like Snapchat, we can expect that harassment and inappropriate conduct, which may have previously extended as far as email and text messages, can now occur “off-the-clock” virtually anywhere, and may be limited to 10-second intervals. What’s more, employers may see claims attempting to hold them liable for the conduct of their employees on social media.

Troublingly for employers, the fleeting nature of Snapchat photos can make such behavior hard to detect. When employees post harassing or bullying social media posts on Facebook, that data can be saved. On Snapchat, it may not. As a further complication, when an employee saves a Snapchat photo or “story” by screenshotting the evidence, the app directly notifies the photo poster. This can be particularly difficult for litigating and addressing alleged workplace harassment when the Snapchat photos are the only source of evidence.

Breaking Through the Filters: Using Snapchat Evidence

Does this mean there is no hope of using Snapchat evidence in investigations and in court? Not entirely. To the contrary, Snapchat has proved to be a compelling source of evidence for juries in certain instances. In July 2016, a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat. Jurors viewed screenshots of the Snapchat video during the trial.

Employers can similarly utilize Snapchat evidence to their advantage. For example, a Snapchat photo or “snap” can be a useful defense tool for an employer whose employees have been accused of harassment. A snap may show the timing of the alleged harassment and establish a consensual relationship between the alleged perpetrator and victim. Snapchat’s “Geofilter,” which marks the user’s specific location, may also be used to trace the exact location of alleged illegal conduct, which can prove an important piece of evidence in litigation.

While several courts have been receptive to Snapchat evidence, some courts have refused to admit Snapchat evidence unless the individual taking the photo is willing to testify as to its authenticity. Other litigants have reached out to Snap, Inc. itself to gain user information, but per their guide, Snapchat refuses to participate in any lawsuit, save for certain exceptions (such as imminent danger.) Given the potential hurdles in obtaining and admitting such evidence in court, employers should consider all potential sources of evidence in investigating workplace misconduct.

Best Practices for the Future Employer

The use of photo-sharing apps is ever-present and unlikely to decrease. In this era of constantly uploaded and disappearing content, employers should consider revisiting their social media policies.

  • If you are conducting a workplace investigation, consider using other forms of corroborating evidence, like witness interviews. If you cannot recapture the snap, you might ask witnesses for a detailed description of the contents, time and date of the alleged snap. Also consider taking interviews of people who directly witnessed the conduct, on Snapchat or otherwise.
  • Train employees and managers on handling investiga­tions when complaints involving social media do arise.
  • Include examples of inappropriate workplace conduct when updating your social media handbook policies.

Howard Wexler and Minal Haymond

Howard Wexler and Minal Haymond of Seyfarth Shaw LLP. Howard M. Wexler is a partner in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state agencies. Minal Haymond is an associate in the Labor & Employment Department. She represents employers in a diverse range of matters, including defending businesses in wage and hour litigation, contractual disputes, class action suits, and single plaintiff suits involving breach of contract, discrimination, meal and rest period violations and wrongful termination in state and federal court. Learn more by visiting www.seyfarth.com.

More Posts

Digg This
Reddit This
Stumble Now!
Buzz This
Vote on DZone
Share on Facebook
Bookmark this on Delicious
Kick It on DotNetKicks.com
Shout it
Share on LinkedIn
Bookmark this on Technorati
Post on Twitter
Google Buzz (aka. Google Reader)
www.pdf24.org    Send article as PDF   

Filed Under: Featured StoriesPractice Management

About the Author: Howard Wexler and Minal Haymond of Seyfarth Shaw LLP. Howard M. Wexler is a partner in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state agencies. Minal Haymond is an associate in the Labor & Employment Department. She represents employers in a diverse range of matters, including defending businesses in wage and hour litigation, contractual disputes, class action suits, and single plaintiff suits involving breach of contract, discrimination, meal and rest period violations and wrongful termination in state and federal court. Learn more by visiting www.seyfarth.com.

RSSComments (0)

Trackback URL

Leave a Reply

  • Polls