snapchat1I recently gave a presentation on social media to a local non-profit and had the opportunity to review some of the latest statistics when it comes to the use of social media.

Frankly, I knew that there has been a shift away from Facebook for some younger people but even I was surprised by the trendlines.   It’s happening much quicker and in bigger numbers than you might think.

And even more surprising, the big winner is: Snapchat.

Yep, the little app that I talked about in 2013.  (Think about how quickly and rapidly the technology has changed in less than four years.) Put another way, the disappearing social media sites that were just getting started are now big.

How huge? According to a new study of what social media sites college students use first, fifty-eight percent of college students said they open Snapchat first, compared with 27 percent who chose Instagram, 13 percent who said Facebook and the 2 percent who opt for LinkedIn.

Another recent survey by Pew Internet found that 56 percent of smartphone users between 18-29 years old use auto-delete apps like Snapchat. That is more than four times the share of users between 30-49 years told.

(Teen usage is even higher with Facebook as the fourth most popular app, behind Snapchat, Instagram & Twitter, according to a Piper Jaffray Fall 2016 study.)

Let’s not, however, write off Facebook just yet.  A whopping 79 percent of online users are still on Facebook.  But these overall statistics show that Facebook has lost it’s exclusive hold on younger online users.

From an employment law context, this continues to cause all sorts of headaches.

With disappearing snaps, for example, it can be difficult for employers to track down and monitor harassment in the workplace. (The fact that some Silicon Valley companies are under scrutiny is perhaps not that surprising, if still disappointing.)

And when it comes to document retention, in the case of a lawsuit, apps like Snapchat are a challenge as an employer tries to preserve relevant information.

For employers, I think it’s important to recognize that we’re in the next generation of social media apps.  If you’ve just caught up to Facebook, you’re already behind the curve.

What may be next? That’s hard to predict.  Some teens I know are using apps like Musical.ly to share content.    (Never heard of it? Well, over 100M users are on it.)

Other types of live broadcasting apps, building off of Facebook Live, continue to grow as well.

Employers would be wise to expand their horizons. A broad social media use policy defining proper use when it comes to the workplace is still a key component.  While you may be on Facebook, the generation entering your workplace just isn’t on Facebook as much anymore.

Today, I spoke at my firm’s semi-annual Labor & Employment seminar on seemingly everyone’s favorite topic lately: social media. We had a huge crowd today and had a lot of audience participation.  I know I speak for my whole department in thanking those who attended.

One of the topics that several people spoke to me afterwards about was the notion of these new “disappearing” social media sites.  I touched on this a bit earlier this month with Snapchat — an app that allows people to send or receive pictures or videos that “self-destruct” after a few seconds.

But that’s only the tip of the proverbial iceberg.

Now, we’re starting to see social media sites that allow you to send “disappearing” messages and updates.

Take, for instance, an app called Ansa, which promises that you can “communicate off the record, so no trace of your conversation is left behind.”

Or a new app called Skim which “erases your messages as you read them… then they’re gone forever. With Skim, you can text your friends, knowing that it’s just like a conversation. No record, no regrets, no worry.”

(Strangely, both sites feature sample messages from an “Ashley” — might this be a clue that people named Ashley have a propensity to use these sites?)

As the founder of Skim stated in a recent article on Techcrunch: “Disappearing content is a growing trend, yet nobody seems to do textual messages very well. At Skim, we have a design-first mentality. Simplicity and beauty is incredibly important, but even more so is security,” said co-founder Jordan Singer. (h/t Ryan McKeen)

For employers, however, all of these new sites — from Snapchat to Skim — should give employers a big headache.  How will you deal with document retention obligations in lawsuits? How do you keep track of these? What if these sites are used for cyberharassment of other co-workers?

In today’s seminar, I discussed how there aren’t a lot of great solutions. The days of simply putting up a firewall at work at over.

Instead, employers need to survey their vulnerable areas, develop a policy, educate employees about the parameters of the policy and monitor how the policy is working.

Most of all, employers need to understand the scope of the issue we are dealing with today.  After all, college kids aren’t all on Facebook anymore — and neither are your employees.

 

 

 

Last month, I suggested that there was not necessarily a "crisis" in personnel file litigation in Connecticut, because the rules for personnel files had long been established.  Given that this blog has been discussing document management policies this week, it would be fair to say, however, that many employers could do a better job managing and keeping track of personnel files.

In fact, a recent example in Illinois shows that preserving and protecting personnel files is a national concern.   

So, what is meant by a "personnel file"?  It may conjure up images of rows of file cabinets, but Connecticut has a specific law on the subject.  Connecticut defines a personnel file to include all documents and reports which:

are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action . . . including those relating to such employee’s character, credit and work habits.

In other words, “personnel file” includes any documents that are used to make decisions about the employee’s employment. Could this include e-mails which discuss the above? It very well might.  Could it include a supervisor’s "desk" file? Sure. 

With me so far? Then it also important to also understand what is NOT included in a personnel file in Connecticut.  Specifically, personnel files do not include:

  • stock option or management bonus plan records
  • medical records,
  • letters of reference or recommendations from third parties including former employers,
  • materials which are used by the employer to plan for future operations,
  • information contained in separately maintained “security files”,
  • test information where disclosure of the information would invalidate the test, or
  • documents that are being developed or prepared for use in civil, criminal or grievance procedures.

The most important part of these requirements to think about now in this day of electronic data is to make sure that electronic data that may be considered part of a personnel file is protected and preserved.  Many performance reviews are now done online; what efforts is the company making to preserve the integrity of these documents?

Without moving to a more modern view of a "personnel file" where electronic data is stored and treated the same as various paper documents, a company runs risks later for its failure to produce an entire personnel file. 

You’re an employer in Connecticut. You’ve just been sued.   Besides contacting a lawyer (and you ARE contacting a lawyer, right?), what else are you doing about the new case? 

A new case in Connecticut suggests that preserving electronic data should be a top priority.  Why? Because under new court rules, failure to do so could lead to sanctions or inferences that a party destroyed evidence that would’ve been harmful to its case.  Indeed, the case suggests, in fact, that the duty to preserve evidence may arise even before the lawsuit is filed. 

In, Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn., July 2007), the court granted a motion for sanctions against a party who had failed to preserve electronic evidence.

Under the new safe harbor provision of Federal Rule of Civil Procedure 37(f), data management must be maintained through a routine system; moreover, the company must take some affirmative action (such as a letter to key potential witnesses and IT consultants within the company) to prevent that everyday system from destroying or altering information once the party becomes aware of the case.

In this case, the party (Norwalk Community College) did not do so.  It did not preserve the hard drives of key witnesses. Indeed, and even more damaging, those hard drives had been cleaned of data.  Indeed, the expert for the other side — who inspected the  computers, concluded that there were inconsistencies in the PST or Outlook e-mail files. 

Because the company did not suspend the routine document destruction policy and "put a litigation hold in place," the court rejected any safe harbor arguments under Rule 37(f). Instead, the court granted the plaintiff request for sanctions and imposed an adverse inference jury instruction regarding the destroyed evidence (along with attorneys fees, costs and expert fees).

So, does this mean that an employer can wait to be sued before preserving evidence?  This decision clearly says no.  It found that the obligation to preserve evidence arises even before the lawsuit is filed.  Following other precedent, the court held that the duty to preserve electronic data arises at the time when litigation is "reasonably anticipated". 

While some employers and companies prefer to handle pre-litigation matters by themselves, the case serves a reminder that little actions (or inactions) at the start of a case can have much larger consequences down the road.  Issuing litigation holds and suspending routine document retention policies upon notice of a complaint may be one way to avoid these larger consequences down the road.

(Hat tip: Delaware Corporate and Commercial Litigation Blog)