In what might have seemed like a good idea after she downed her third scotch-and-soda, Tanya Blackwell, a foreclosure defense attorney, got a job at GMAC’s Ally Financial and, according to allegations by Ally, proceeded to grab all the confidential information of Ally’s she could lay her hands on and shoot it out the door to third parties, presumably to aid the employee’s law firm and others in fighting residential loan foreclosures commenced by Ally against delinquent borrowers. Those activities not only got her fired, they got her sued. Last Friday afternoon, Ally and the defendant stipulated to a preliminary injunction pursuant to which “Blackwell is forbidden from ‘using, disclosing, disseminating or transmitting’ any of Ally’s proprietary information or destroying any information that would apply to this case,” and “she must also within 48 hours return any proprietary information to Ally and give her former employer all of her email passwords for accounts that contain information related to Ally.”
I may be wrong, but I don’t think this will turn out well for Ms. Blackwell. Her sanctions may not end with an adverse judgment or settlement in the civil litigation filed by Ally. I wouldn’t be surprised to see further repercussions.
As for Ally Financial, I guess it doesn’t use a social media review procedure as part of its pre-hiring due diligence process. I understand that some employment law attorneys have advised their clients not to review social media sites like Facebook, Twitter or MySpace for fear that the employer will uncover such impermissible information as race, age, or sex and be sued if it decides not to hire the prospective employee. I respectfully disagree with that approach, and believe that those risks can be managed. In fact, I think the weightier argument is that the employer may be deemed negligent if it doesn’t review social media sites.
Look at the case of Ms. Blackwell and Ally. Ms. Blackwell’s Facebook page makes it very clear that she’s all about representing the borrower against the lender. Is that someone a mortgage lender would think is a perfect fit for its in-house legal staff?
There have been a number of articles recently that profile social media “scouring” and the third party vendors who provide this service. As one employment law attorney opines, you’re probably better off using a professional who can filter out the impermissible information and only pass along the squeaky clean stuff to you.
“It’s probably safer to work with a company to do the checks because that is what they are in the business of doing,” Potter said. “They understand the rules.”
Whether you hire a third party or "roll your own," to me, there’s more risk in not doing a social media check that there is in doing one.