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Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postings

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit …

No “friending” allowed – final resolution on Gawkers notice of class action participants via social media

We have reported on a federal court’s rulings related to plaintiff’s efforts in Mark v. Gawker Media LLC (S.D.N.Y.) to use social media to notify potential class action members here and here. On April 10 the court held that the class plaintiffs, former interns for the website Gawker, can use social media to notify potential members of their class, with certain restrictions. Plaintiffs are permitted to reach known former Gawker interns via social media with a message that is “substantially similar” to the message contained in traditional forms of notice sent in the case. The court, however, ordered that …

More caution from the NLRB to employers with broad handbook prohibitions

Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints …

Gawker update: class notification via social media limited

In a previous post, we discussed plaintiffs’ attempt in the class action lawsuit Mark v. Gawker Media LLC (S.D.N.Y.) to notify potential members of the class via social media. On March 5, 2015, U.S. District Judge Alison Nathan took a very limited view of what kind of notification would be permitted when using forums like Reddit, Tumblr, Facebook, Twitter, and LinkedIn. Judge Nathan stated the court’s contemplated use of social media was simply an analogue to the typical mailing of notice and agreed upon use of email. Posts on Reddit and Tumblr must specifically target individuals with opt-in rights, …

Why can’t we be friends? Gawker class action raises specter of notification via social media

Attorneys for FLSA class-action defendant Gawker are opposing plaintiffs’ request to expand potential avenues of class notification via social media. Former interns of the blog site Gawker, a website that promotes itself as a “one-stop guide to media and pop culture,” filed a Fair Labor Standards Act class action against the company in June of last year. Mark v. Gawker Media LLC (S.D.N.Y.). The former interns allege that they were not paid for hours of work writing, researching, editing, and lodging stories and multimedia content that “was central to Gawker’s business model as an Internet publisher.” They also allege …

Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run!

There seems to be a news story every day detailing employee misuse of social media. In fact, in a recent survey released by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.

Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.

But now, introducing a new type of corporate social media …

NLRB’s opposition towards broad social media and other employer policies keeps popping up

Does your handbook or social media policy say something like this:

“If you comment about the Company on the Internet, you must say that your views are not those of the Company.”

 “Do not use the Company’s logo or other trademarks on social media.”

 “You may not discuss the Company’s confidential business plans on the internet.”

Do you think these restrictions pass muster under National Labor Relations Board decisions?

Employer efforts to craft social media and other handbook policies to comply with recent NLRB cases and guidance is a little like playing whac-a-mole. No matter how many you smack down, …

Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements

We all understand the importance of including a confidentiality clause in settlement, severance, and separation agreements. While nothing can prevent a departing employee from going on a conspicuous shopping spree or driving around town in a flashy new car with his/her settlement dollars or severance payment, employers want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment and encourages legal challenges by other employees who may have different circumstances than the employee receiving the payment and/or causing discord among current employees who feel cheated by the departing employee receiving a payment …

When an Employee’s 10-Foot-Tall and Bulletproof Attitude on Social Media Becomes a Workplace Reality (and Nightmare)

It’s hard to believe that what someone says on social media may not be the whole truth and nothing but the truth. The truth is, people are more likely to say things on social media sites, like Facebook and Twitter, that they would never say to or about a person directly because the computer gives people a false impression that they can say or do whatever they want without repercussion. But as we have warned time and time again, comments made on social media sites may not be as private as the commenter may believe and can be very damaging, …

Fourth Circuit Holds “Liking” a Facebook Page is Protected Speech in the Public Employment Context. What Does This Mean In the Private Employment Context? Well, It Won’t Stop Those Annoying Farmville or Candy Crush Invitations

Within the last month, courts have taken steps to protect communications made via social media. For example, in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug 20, 2013), which we reported on here, the United States District Court for the District of New Jersey held that private Facebook posts are protected under the Stored Communications Act. On the heels of that decision, the Fourth Circuit Court of Appeals in Bland v. Roberts, 12-1671 (4th Cir. Sept. 18, 2013) overturned a district court decision that had held that public employees’ Facebook “Likes” were not protected speech …

One Facebook Firing Case. Two Terminations. NLRB Finds Only One Unlawful and Notes How It Treats Malicious and Untrue Posts

In another Facebook firing case, involving two separate terminations, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) ruled that a company violated and did not violate the National Labor Relations Act (the Act) after terminating employees for posting comments on Facebook. In Butler Medical Transport LLC and Michael Rice and William Lewis Norvell, Case Nos. 5-CA-97810, 5-CA-94981 and 5-CA-97854 (Sept. 4, 2013), two employees were terminated for posting comments on Facebook. One suggested to a former employee that she contact an attorney or the Labor Board. The other, well he just made up some stupid post about …

Court Finds Non-Public Facebook Posts Are Covered By The Stored Communications Act–But Not Posts Produced By A User’s Frenemy

As long as there has been Facebook, attorneys have been scratching their heads asking whether Facebook posts fall under the purview of the Federal Stored Communications Act (“SCA”). In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WJM) (D.N.J. Aug 20, 2013) the District Court for the State of New Jersey gave us its opinion by holding that non-public Facebook posts, which are configured to be private are indeed covered under the SCA because they are:

  • electronic communications;
  • transmitted via an electronic communication service;
  • in electronic storage; and
  • not accessible to the general public.

Even though the posts were …

When Managers and Social Media Collide: Court Finds That Blog and Drunken Facebook Posts By Coyote Ugly’s Managers Do Not Amount to Adverse Actions or are Enough for Constructive Discharge Claim

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Aug. 8, 2013) serves as a cautionary tale to employers about the disastrous impact that can happen when managers and social media collide. And while this case turned out well for the employer in the end, that end was after a long and expensive two-day bench trial that I am sure the employer would have much rather avoided.

If you are not familiar with the Stewart case, here is the background you need to know. CUS Nashville, LLC owns Coyote Ugly franchises. (Yes, the …

Employees Getting Fired For Photos on Social Media Is Old News as Facebook Introduces Video on Instagram. #InstagramVideo

Recently we told you about Vine, a mobile video application owned by Twitter that allows users to capture and share short looping six-second videos on Twitter. As we explained, the app will no doubt cause employers headaches as employees start recording Vine workplace videos – especially with 13 million users since the app was rolled out five months ago.

Well, last week Facebook followed suit and introduced its own short-video service that is built into Instagram, the photo-sharing app that Facebook acquired last year. (Facebook also rolled out support for hashtags, which were pioneered by and are a staple …

Court Orders Plaintiff-Employee to Produce Social Media Postings on Claimed Emotional Distress, Alternative Potential Stressors and More

Our colleagues at the Technology Law Source Blog advise of a new interesting case concerning the discovery of social media account information in a disability discrimination case. There are two noteworthy pieces to this case. First, the New York federal court judge provides a good roadmap as what information posted on social networking sites is relevant and discoverable in a cases where damages from emotional and physical injury are sought. Second, by ordering plaintiff’s counsel to review the plaintiff’s postings for relevance – not Plaintiff – and produce them, the court offered another option on the always-frustrating issue of how …

When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME … Make my day …"

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social …

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