Employer Law Report

Tag Archives: social media

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 …

Court Rules Employer Cannot Force a Former Employee to Update LinkedIn Profile

In today’s world of social media, we know that employees live online. With LinkedIn, this includes having a living resume for anyone with a LinkedIn account to see. The up-to-date part, or rather how up-to-date someone’s LinkedIn profile (or resume) is, has become somewhat of a concern.  The recent case of Jefferson Audio Video Sys. Inc. v. Light (W.D. Ky. May 8, 2013) demonstrates how the updating of a LinkedIn profile can become a concern for employers, particularly as it pertains to an employer’s former employees. 

Here is the situation: An employee leaves a company for whatever reason yet fails to update …

Facebook Account Deactivation Leads To “Spoliation Instruction”

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 …

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

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, …

Social Media Privacy Makes Its Way to Capitol Hill

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

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

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 …

One Day You’re In, the Next You’re Out: A Policy-by-Policy Analysis of the Fallout for Employer Policies in the Wake of the NLRB’s Decisions in Costco and EchoStar

Following closely after the NLRB’s first social media decision in Costco Wholesale Corporation (NLRB Case No. 34-CA-012421) just weeks ago, an ALJ for the Board has issued a mammoth 43 page decision in EchoStar Technologies (NLRB Case No. 27-CA-066726) striking down numerous employer policies that in his opinion unlawfully chilled employees’ rights to engage in protected concerted activity.

This post takes a look at the policies challenged in the EchoStar decision and summarizes where employers stand now.

To understand the NLRB’s recent decision in EchoStar, it is important to first understand where the NLRB is coming from. When reviewing …

First NLRB Decision on Employer Social Media Policies

Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what …

NLRB General Counsel Issues Another Social Media Memo

On May 30, 2012, the NLRB’s General Counsel’s Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board’s regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers’ confusion on what they can and cannot include in their social media policies — even though the GC took the unusual step of appending to the …

NLRB Continues to Tackle Social Media Issues

The last six weeks or so have brought us a flood of NLRB General Counsel Advice Memoranda addressing whether an employee’s social media activity is protected concerted activity for which he or she may not be disciplined. In his excellent Ohio Employers Law Blog, John Hyman discusses four of them and suggests that the NLRB may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases. In three of those cases, the General Counsel’s Office recommended dismissal because the employee at issue was merely venting an individual gripe and was not …

Who Owns Your Employees’ Twitter Accounts?

It seems like everyone is tweeting these days, including employees and often as a part of their jobs. For employers whose employees are using Twitter, Facebook, blogs, or other social media as a part of their jobs, they may want to examine who owns the accounts.

A mobile phone review website, PhoneDog, is suing a former employee over his Twitter account. While employed at PhoneDog Noah Kravitz created a Twitter account, which he named "@Phonedog_Noah" and from which he tweeted on a variety of professional and personal topics. According to media reports, Kravitz apparently was not hired to do tweeting …

NLRB General Counsel’s Advice Memorandum in Schulte Offers a New Twist on the Old Facebook Firing Theme

Just when I started to think that I might have the answers regarding the NLRB’s obsession with social media, the NLRB starts changing the questions. Not that that is always a bad thing. Just ask Schulte, Roth & Zabel.

In Schulte, the charging party alleged that he was terminated for his role in employee discussions about the employer’s allegedly unlawful overtime policy. Schulte, however, contended that it had terminated the charging party for referring to his job title as "fucktard" in response to a LinkedIn invitation from a supervisor in the firm’s IT department in violation of the firm’s …

NLRB’s Acting General Counsel Issues Report on Social Media Cases

As you have probably noticed, the interaction between social media and federal labor law has been one of this blog’s favorite topics, which we have addressed on multiple occasions. On August 18, 2011, the National Labor Relations Board’s Acting General Counsel ("AGC") issued a report that summarizes the General Counsel’s Office’s view on a variety of cases in which Regional Directors sought advice on social media issues and therefore provides excellent guidance to employers. With one exception, the topics addressed in the Report fall into two broad categories:

  1. First, the Report addresses when an employee’s social media activity is protected

An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement

Several days ago, I read the New York Times article reporting that the NLRB’s Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter. At the time, I flagged the article because I wanted to use it to highlight my — emphasis on the word, MY — views on the NLRB’s recent assault on social media policies: When it comes to social media, it is time for cooler heads to prevail, both at the NLRB and within the employer community.

So, what happened at Thomson-Reuters? According to the …

Recent Terminations Highlight Need For Health Care Employers To Focus On Employee Education Regarding Social Media

We are starting to see an increase in the number of news articles reporting on health care facilities terminating employees for violating patient privacy on their facebook pages or other social media. 

Last December, one such incident made a fair number of headlines when a Mississippi hospital worker responded to a tweet from the Governor of Mississippi, Haley Barbour, regarding the state’s “dire fiscal situation” and soliciting ideas to trim expenses.  The employee responded with a tweet that said the Governor should “schedule regular medical exams like everyone else instead of paying UMC employees over time to do it when …

Court Upholds Jury Verdict in Pietrylo v. Hillstone Restaurant Group

 

In a case that has been widely followed by employment lawyers in the hope of gaining some clarity as to employees’ privacy rights on personal social media sites, the federal district court in New Jersey recently upheld the jury’s verdict finding Hillstone Restaurant Group liable for violations of the Stored Communications Act and New Jersey’s parallel electronic surveillance statute.

In Pietrylo v. Hillstone Restaurant Group, two employees created a MySpace page that they used to air their grievances against their employer in a password protected environment and invited other employees — but not managers — to join. At …

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