U.S. prosecutors have charged eleven people for their connections with an expensive fraud scheme involving hundreds of railroad workers filing fraudulent disability claims. The scam allegedly cost the Railroad Retirement Board over $1 billion. The charges are coinciding with heavy criticism that is aimed at public workers’ unions for negotiating pension obligations that led many government agencies to slash services and lay off police offers, teachers, and other public servants.

The Railroad Retirement board is a government agency that administers retirement benefits to railroad workers across the country. Retirees who qualify for disability receive a boost to their benefits because their pension is topped off with additional disability payments. The allegations here are that former Long Island Railroad workers, doctors, and at least one federal railroad agency employee were involved in the scheme. The workers allegedly filed disability claims just before retirement in order to obtain additional benefits. According to the prosecution, many of the employees claimed injuries so severe they could not sit, stand, walk, or climb steps, yet managed to retire to lives of regular golf, tennis, biking, and aerobics. For example, one of the defendants received $105,000 in annual pension and disability benefits after establishing an inability to grip, bend or crouch. He then played golf 140 days over the course of nine months.

The investigation began after the New York Times issued several reports in 2008 about Long Island Railroad workers, including their reports that those workers had a 90% disability rating, approximately four times that of the average railroad. The reports tipped off federal investigators about the systematic abuses of Railroad Retirement Board pensions by workers.

The workers are accused of paying up to $1,200 to hire one of several disability doctors. According to the prosecution, those doctors conducted unnecessary tests and fabricated medical issues that allowed the workers to qualify for disability. Each defendant (doctors, workers, agency employee) faces a maximum of twenty years in prison, if convicted.

Because of the heavy labor involved with railroad employment, it is often difficult to dispute a meritless claim for disability or workers’ compensation benefits without a thorough investigation. The Long Island Railroad case is an unfortunate example of how expensive misappropriation of benefits can become. If you employ railroad workers or analyze these claims, Peterson, Logren & Kilbury highly recommends you seek the advice of an attorney knowledgeable in defending such claims. Such advice can help you efficiently resolve questionable claims and allow you to focus your resources on the bona fide ones.

(Via NYTimes.)

(This is part of a 4-post series. Start from the beginning here.)

Based on the previously posted cases and statute, you might be able to obtain and review information shared by an individual through social media sites or programs. While the law continues to develop in this area, the two most common trends in current law are as follows:

• There is generally no recognized right to privacy in social media postings.
• An individual given permission to view someone else’s online postings can, in turn, extend that permission to other persons.

Using this knowledge, a party can learn more information about its opponent and strengthen its case even further. Our firm can work with you to utilize this method while investigating claims. In doing so, we will help you observe a claimant’s online presence and assist you in determining which information, communicated by a claimant, you own and can review.

For assistance in structuring human resources policies relating to online communication, please contact Peterson, Logren & Kilbury, P.A.

(This is part of a 4-post series. Start from the beginning here.)

The Stored Communications Act prohibits access of stored information owned by another without the owner’s authorization. The Act has an important exception, however:  any person or people who subscribes to those communications or to whom the communication is made can authorize access. If we were to assume an individual “owns” what she posts on a website, the law would affect that website content as follows:

X has a blog that she adds posts to regularly. Readers must log in to the blog with a password given by X. No one without the password can access the blog. X has become very good friends with her supervisor, Y, and has given Y a password to read the blog. Months later, X discloses information on her blog that is adverse to a lawsuit she is filing against her employer. While the employer might not be able to access the information on its own, Y as a subscriber, can authorize the employer’s access to the information.

How This Affects Access to Information

Based on this law, permission to access and use information posted online can be granted by some person(s) other than the author or poster. Like the case law in Social Media as Evidence II: Case Law, this law follows the theory that the more you share, the weaker your privacy claims become.

Next post: Social Media as Evidence IV: Recommendations

(This is part of a 4-post series. Read the first post here.)

Right to Privacy in Social Media:  Is There Any?

So far, case law generally says No. The reasoning behind this is that social media, by nature, involves the sharing and disclosure of information. Courts take that into consideration and also note that if you had a reasonable expectation of privacy in that information, you would not be sharing it in a public forum like the internet.

In Romano v. Steelcase, Inc., 2010 WL 3703242, the New York Supreme Court broadly held that there was no right to privacy in social media content. The court ordered a party to turn over MySpace and Facebook consent to its opponent. This content included photographs, posts and anything recently deleted. The court stated when a person chooses to disclose information, her ability to claim that information is protected by privacy becomes much weaker. By actively sharing the information, a person cannot reasonably believe it will remain private.

In EEOC v. Simply Storage Mgmt, (S.D. Ind. 2010), two employees filed claims involving distress, depression and psychiatric disorders stemming from sexual harassment. The employer sought photos, comments and private messages from the plaintiffs’ Facebook and MySpace accounts on the basis that a change in the plaintiffs’ psychological behavior, if any, would likely be seen through a review of their activity on those sites. The court held that because the information was already shared with a number of people on those sites, it was not protected by privacy.

No Privacy When You Share

This sampling of case law follows the typical theory of confidentiality. If you share information with a third party, you have given up your right to claim the information is privileged, confidential, private, etc. For example: certain information a client shares with his attorney is confidential and cannot be admitted in court. However, if the client chooses to share this information with his attorney while they are in a crowded auditorium, and does so in a very loud voice, it is not reasonable to believe that information is private. A court would hold that, for that reason, the information is no longer confidential. Similarly, if an individual posts personal information on a forum as public as the internet, where any number of “friends,” “followers,” or others can see it, it is not reasonable to think that information is private.

Next post: Social Media as Evidence III: The Stored Communications Act

Social media use has exploded in the last few years. A substantial amount of people in the United States access social media websites daily. Facebook alone has over 500 million active users. The evolution of these sites now allows users to publish information about their every day lives by posting comments, pictures, links, writing messages, instant messaging, and more.

Because these sites are now a regular part of many people’s daily lives, it is important to consider whether or not such online activity or communication can be submitted as evidence in ongoing litigation. In addition, employers should consider social media activity when structuring its human resource policies.

Relevancy & Privacy

While the law is not yet clearly defined regarding the admissibility of social media evidence, judges’ discussions tend to revolve around two points, relevancy and privacy considerations. The requirement of relevancy is a longstanding rule followed by the courts, but privacy falls into a grayer area.

This is the first post of a four-post series on the admissibility of social media as evidence.  The posts will discuss current relevant law, relevant issues and recommendations for employers regarding this source of evidence.

Next post: Social Media as Evidence II: Case Law