A Day Two SuperConference session aimed to tackle the myriad social media-related challenges that in-house counsel face. 

Lathrop & Gage Partner David Vogel moderated “Searching for Social Media Evidence,” which featured panelists including Lathrop & Gage Partner David Bernard; Sara Kagay, associate general counsel of labor and employment at Brunswick Corp.; and John Kasher, vice president and chief legal officer at GN Hearing Care Corp. 

To kick things off, Vogel noted that social media-related issues were at the center of 689 cases in 2010 and 2011. And panelists agreed that such litigation isn’t going to die down anytime soon—particularly when it comes to action on the part of the National Labor Relations Board (NLRB), which continues to issue rulings related to social media-driven employer actions. 

The in-house panelists also discussed how they handle social media when it comes to hiring and firing. 

“It’s difficult to control what a hiring manager will look at,” Kasher said. “It doesn’t work to tell our folks, ‘Don’t look at social media.’” 

Kagay said the recruiters at her company frequently peruse candidates’ LinkedIn profiles because they say the social media site is the “wave of the future” when it comes to hiring. 

As for termination tied to social media, panelists urged in-house counsel to proceed with caution. 

“It’s typically been enough to tell employees, ‘It’s been brought to our attention that you have this blog or these postings,’” Kagay said. “They usually take them down or stop after that.” 

Other key points panelists made were: 

  • Courts are taking varying views on admissibility when it comes to using social media in the discovery process in labor litigation
  • The NLRB is continuing to take a tough stance on overly broad social media policies 
  • Companies are struggling to comply with a new Federal Trade Commission rule on digital advertising disclaimers, which also applies to social media pages and postings

For more InsideCounsel coverage on social media, read:

The risks and rewards of social media

Drafting social media policies under pressure

Labor: Does social media change the meaning of “solicitation”?

In-house counsel social media use reaches an all-time high

SEC social media rule reflects growing pressure on regulators

Companies sharing corporate news on social media must inform investors

NLRB sees increase in social media-related cases

Lawyers: Do not “friend” or “tweet” jurors and parties represented by counsel