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Employer Law Report

Tag Archives: Facebook

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

Posted in EEO, Other Articles, Social Media

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, …


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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

Posted in Labor Relations, Social Media

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 …


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

Posted in Social Media

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 …


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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

Posted in Social Media, Wage & Hour

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 …


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

Posted in Social Media

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 …


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NLRB Issues Third Facebook Firing Decision (Employers 1, Employees 2). Would Bettie Page Roll Over In Her Grave?

Posted in Labor Relations

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging in what the Board deemed protected concerted activity after the employees posted messages on Facebook complaining about their working conditions. The Board also held the store violated the NLRA by maintaining a “Wage and Salary Disclosure” rule in its handbook prohibiting employees from disclosing information …


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Facebook Account Deactivation Leads To “Spoliation Instruction”

Posted in Traps for the Unwary, Workforce Strategies, Workplace Privacy

Our colleagues over at Technology Law Source advise today of an interesting case in which a New Jersey federal court held that a plaintiff in a personal injury lawsuit failed to preserve relevant evidence when he deactivated his Facebook account and failed to reactivate it within fourteen (14) days – which according to Facebook’s terms and conditions renders the account’s contents irretrievable. As a result, the court found that the defendant was entitled to a jury instruction that permits the jury to infer that “the fact that a document was not produced or destroyed is ‘evidence that the party that …


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Facebook Posts Not “Solicitation” Under Former Employee’s Restrictive Covenant Agreement

Posted in Business Competition, Workplace Privacy

Describing it as a “rather novel issue,” a federal court recently held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer. [See Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, Doc. 31 (Jan. 22, 2013), Report and Recommendation affirmed and adopted, Doc. 32 (Feb. 12, 2013)] The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, …


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Social Media Privacy Makes Its Way to Capitol Hill

Posted in Workplace Privacy

Editors’ Note: Colleen Marshall, a Senior Attorney in Porter Wright’s Litigation Department, is also a widely-recognized, award-winning news anchor for Columbus’ NBC-affiliate, WCMH – 4. In a detailed interview with Porter Wright’s Sara Jodka last week, Colleen reports on the use of social media by employers: "You Can’t Delete Your Way Out Of Social Media."

As noted in a recent blog and in the news report mentioned above, 21 states have social media privacy legislation pending. But, social media privacy could soon be governed by an act of Congress.

Representative Elliot Engel (D-N.Y.) just introduced H. R. 537, the "Social Networking


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Why You Can’t Delete Your Way Out of Your Social Media Mess

Posted in Traps for the Unwary, Workforce Strategies, Workplace Privacy

Naked pictures? Drunken celebrations? Sexist comments? A click of a button and all evidence of your "Weekend at Bernie’s" can disappear. Job seekers know to scrub clean their Facebook pages before they connect with potential employers, to remove all trace of their off-color on-line life. But here in Ohio you can’t delete your way out of the mess you created through social media. Employers can legally ask employees and recruits to surrender their social media passwords, and thanks to Facebook’s newly expanded access program, the result is a stunningly deep portal into private messages, deleted posts, photographs and everything you …


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Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

Posted in Leave Administration, Workforce Strategies, Workplace Privacy

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to …


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NLRB Upholds Facebook Firing but Finds Employer Policies Overbroad

Posted in Labor Relations

Last week, another ALJ for the National Labor Relations Board issued a decision on a case involving an employee claim that he was unlawfully fired for comments made on a personal Facebook page. Though the ALJ upheld the employee’s termination, he also concluded that multiple employer policies were impermissibly over broad.

In Knauz BMW the charging party, a salesman at a BMW dealership, posted two comments regarding his employer on the same day. The first post expressed concerns he had expressed at work regarding the inadequacy of food being served to customers at a sales event and included photos …


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NLRB General Counsel Recommends Dismissal of Three Charges Contesting Discipline for Facebook Comments, Finding No Concerted Activity

Posted in Labor Relations, Workforce Strategies, Workplace Privacy

On July 7 and 19, 2011, the NLRB’s Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB’s General Counsel’s Office concluded that there was insufficient evidence that the employee engaged in concerted activity.…


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NLRB Issues Complaint In Facebook Firing Case

Posted in Labor Relations, Traps for the Unwary, Workforce Strategies, Workplace Privacy

On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.

As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute …


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Maintaining Perspective is Important in Evaluating Employee Social Media Posts

Posted in Workforce Strategies

Late last month, we reported on some employment terminations in the health care industry that were prompted by some ill-advised Facebook postings.  Earlier this week, Dan Schwartz of the Connecticut Employment Law Blog noted another interesting situation brewing in his home state in the education field – where a school superintendent faces potential termination of employment for postings to his Facebook page, which only his “friends” could access.  

In other words, the discussion was not open to be seen on Facebook by the general public.  Apparently, the superintendent engaged in an exchange with his “friends” about his first day on the …


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Facebook Announces New Privacy Controls

Posted in Workplace Privacy

Facebook has announced that it is implementing new privacy controls beginning today that will give its more than 350 million users more control over the privacy of what they post to their Facebook pages. As reported, Facebook will now give its users the ability to set up lists that, for instance, can place their "friends" into separate groups such as family, high school buddies, and work friends and to choose who to share content with each time they post something. As a result, people easily should be able to choose to share family photos with only family and close friends …


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Facebook Photos Prompt Termination of Long Term Disability Benefits

Posted in Employee Benefits/ERISA, Leave Administration, Workers' Compensation, Workplace Privacy

CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the …


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