Use of Social Media to Deny a Claim

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We often suggest to our clients that they carefully limit their exposure on social media. It is simple for insurance companies to track a claimant’s whereabouts if they are regularly posting on Facebook, and not making it private, uploading pictures on Instagram, or other people are tagging them in photos or discussing their whereabouts. An example of the use of social media to deny a claim occurred recently in Goros v. Sun Life Assurance Co., No. 2:16-cv-233-FtM-38CM, 2017 U.S. Dist. LEXIS 137446 (M.D. Fla. Aug. 28, 2017).  Mr. Goros claimed that while he had a motorcycle he was sorrowfully unable to use it due to his back and arthritic conditions. However, social media of his girlfriend reported their long trips and motorcycle rides. The Court took this into account when challenging his credibility and as establishing his ability to perform occasional travel which was one of his job duties.

People that are disabled do not have to stay indoors, they can continue to perform their daily activities and readjust to live a full life with their impairment. However, if they demonstrate through their non-work activities that they can perform physical or mental requirements which are similar to those of the workplace, or if they are more social than they claim to be, this creates potentially legitimate concerns by the disability insurance company of the veracity of the claim and the depth and breadth of the impairment.

It is notable that many states, including New Jersey have passed laws regulating an employer’s access to the personal account social media website of an employee.

Effective December 1, 2013, New Jersey joined an expanding list of states that prohibit employers from requesting employees and job applicants to provide access to their private social media accounts.

C.34:6B-6  Prohibited actions by employers.

  1. No employer shall require or request a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.

C.34:6B-7  Waiver, limitation of protection prohibited.

  1. No employer shall require an individual to waive or limit any protection granted under this act as a condition of applying for or receiving an offer of employment. An agreement to waive any right or protection under this act is against the public policy of this State and is void and unenforceable.

Keep in mind that the law further provides that employers may access any information available in the public domain about current or prospective employees. Thus, it prohibits the online equivalent of an employer eavesdropping on private social media communications, while still allowing companies to use information the employee chooses to make public

Regarding our clients seeking disability benefits or on claim, we  recommend they do not sign broadly worded authorizations sent to them by the insurers.  Although it is reasonable to expect that insurers will need to obtain medical records and employment data, many authorizations presented to our disabled clients seek permission to obtain access to their IRS file, bank and financial records and to share this information with others.  Once the information is released, it is no longer protected under law from re-disclosure.  This type of unfettered access by the insurance industry to information irrelevant to the disability claim an unreasonable invasion of privacy.  This type of broad authorization may also be used to gain access to a personal social media account.

Our final word of caution;  Courts have granted Defendants access to claimants’ private website addresses in litigation. Therefore, just by making your Facebook “private,” doesn’t mean you should continue to post because there is a chance that down the road, a court may order that you provide an insurance company complete and unfettered access to your social media.

Our firm continues its services to the disabled, representing them from the inception of their claim as their voice to the insurance industry and remaining by their side as their advocate.  Contact us at Bonny G. Rafel LLC for more information as to how we can assist you with your claim.

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