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 they do not believe the employee deserved. A recent Facebook mistake by the daughter of a plaintiff who settled a lawsuit with his former employer highlights the need for well drafted confidentiality clauses. In a story making news beyond just the human resources and legal circles, Dana Snay’s Facebook post cost her father his $80,000 settlement.
Continue Reading Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements

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, especially when those comments concern workplace issues, and even more so when they make allegations of workplace misconduct. Debord v. Mercy Health System of Kansas, Inc., Nos. 12-3072 and 12-3109 (10th Cir. Nov. 26, 2013) is a case that demonstrates just how an employee may feel 10 feet tall and bulletproof sitting at a computer keyboard, but whose tone changes when the repercussions from a social media post become all too real.
Continue Reading When an Employee’s 10-Foot-Tall and Bulletproof Attitude on Social Media Becomes a Workplace Reality (and Nightmare)

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 under the First Amendment. (Remember of course, that public employees, unlike the employees of private businesses, have limited First Amendment rights to speak out on matters of public concern.)
Continue Reading 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

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

Following up on my recent post on the case, I had the chance to speak with Colin O’Keefe of LXBN regarding the New Jersey case in which the court ruled an employer could fire an employee for a Facebook update reported to them by the employee’s coworker and Facebook Friend. In the interview, I explain the basics of the case and what we can learn from it.
Continue Reading Video Interview: Discussing the “Frenemy” Facebook Firing Case with LXBN TV

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

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

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

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

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 "