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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 …

Court Decides LinkedIn Ownership Case and Finds for Plaintiff But Refuses to Show Her the Money

The infamous LinkedIn ownership case, Eagle v. Edcomm, is over, and for the plaintiff, Dr. Linda Eagle, it was a win and a loss. We told you about this case in the post: "In the Social Media Battle Over Who Owns a LinkedIn Account, the Greatest Threat is State Law Claims – How Employers Can Protect Themselves in Light of Eagle v. Morgan as 11 State Law Claims Proceed to Trial." The case did go to trial, and the Eastern District of Pennsylvania decided that while Dr. Eagle proved three claims against her former employer, Edcomm, she was …

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 …

SHOCKING NEWS!! We Are Spending Too Much Time Surfing The Web For Personal Reasons at Work. What To Do About These Cyberloafers??

According to a news release issued by the university, a Kansas State University study to be published in the journal Computers in Human Behavior concludes that between 60 and 80% of the time spent by people on the internet at work has "nothing to do with work." The study, which was profiled this morning on The Today Show, suggests that "cyberloafers" come in all ages. According to one of the researchers, "Older people are doing things like managing their finances, while young people found it much more acceptable to spend time on social networking sites like Facebook."

Certainly, while …

Social Media Firing of the Week. (Final Score: God 10 – Waitress 0)

The Internet is burning up this morning with the story of an Applebee’s waitress who was fired for posting on Reddit, a social news and entertainment site, the receipt from a customer who gave her no tip on a $35.00 check, writing "I give God 10% why do you get 18?" Unfortunately, the waitress did not obscure the customer’s signature when she posted a picture of the receipt, which naturally set off a firestorm of Reddit users and others on the Internet attempting to identify the customer. The customer apparently then contacted Applebee’s and demanded the waitress’s termination.

While there …

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

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 …

Not So Fast … CFPB Issues Revised Forms for FCRA Compliance by January 1, 2013, First Ones Contained Typos and Other Errors

As we reminded you last month here, the Consumer Financial Protection Bureau ("CFPB"), the agency that has enforcement responsibility over the Fair Credit Report Act ("Act"), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.

The forms at issue:

  • The Summary of Consumer Identity Theft Rights;
  • Summary of Your Rights Under the

Complying with the FCRA Amendments Before January 1, 2013 – a Step-By-Step Guide

By now, you should know that the Equal Employment Opportunity Commission ("EEOC") has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act ("FCRA") has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau ("CFPB").

The FCRA, of course, is the federal law that imposes requirements on employers who use third party Consumer Reporting Agencies ("CRA’s") to obtain “consumer reports" (i.e., background check, reference check, …

In the Social Media Battle Over Who Owns a LinkedIn Account, the Greatest Threat is State Law Claims – How Employers Can Protect Themselves in Light of Eagle v. Morgan as 11 State Law Claims Proceed to Trial

Who owns a social media account that an employee sets up for the purpose of promoting her employer’s business? In Eagle v. Morgan, the federal district court for the Eastern District of Pennsylvania became one of the first courts to address the issue of ownership of employer social media accounts. Now, 11 state-law claims related to this issue are slated for trial next month. Here’s what employers need to know about what claims didn’t make it, which ones did, and how they can protect their online presence.

The Factual Background. In Eagle, the employee, Dr. Linda Eagle, …

State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity. In Freedom Banc Mortgage Services, Inc. v. O’Harra, the plaintiff’s complaint alleged that an employee began remotely downloading software programs on 27 of the employer’s computers and five servers. Through these programs, O’Harra, with the assistance of others, allegedly was able to access the employer’s employees’ email accounts, deleted hundreds of email from these accounts, uninstalled the employer’s security camera, deleted pictures …

Bill Introduced In Ohio Legislature To Restrict Employer Social Media Password Inquiries

On Thursday May 24, 2012, State Senator Charleta Tavares of Columbus introduced a bill that would prohibit employers from asking applicants or employees for their social media password. The bill follows a trend started in Maryland and followed by at least 11 other states (plus Congress) that would prohibit this employer practice.

Is this legislation necessary? Well, I was asked this question on 10TV in Columbus last Thursday night and my answer was an emphatic "No!" Though this type of legislation seems to be "trending" nationwide, the examples of employers that actually require their applicants or employees to turn over their …

Federal Court: FCRA Does Not Apply To Independent Contractor Relationships

Here is one more potential advantage of using independent contractors rather than employers that so far has flown below the radar screen.  According to a federal district court in Wisconsin, the Fair Credit Reporting Act’s disclosure obligations do not apply to independent contractor relationships.

When EMS Energy Marketing Service, Inc., terminated Phillip Lamson based on the results of a background check, it failed to provide him with a copy of the report or the written description of his rights under the FCRA as required by the Federal Trade Commission.  Lamson sued, alleging that his termination violated FCRA.  The Court concluded, …

Refresher on Alcohol Testing and the ADA

Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.

So, if employers want to ensure their workers aren’t under the influence of …

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 …

Clearing the Backlog – September

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my …

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

First Circuit Dismisses Verizon Union Employees’ Privacy Claims Based On Federal Labor Law Pre-Emption

Beginning in late 2008, Verizon New England, Inc. (VNE) began requiring its field technicians to carry company-issued cell phones, containing a global positioning system (GPS) during work. Prior to adopting this policy, VNE issued its technicians pagers so that their supervisors could communicate with them. The technician would then have to locate a phone to return the call. Obviously, in emergency situations, this was a less than optimum arrangement. As a result, VNE, relying on the management rights provision in the collective bargaining agreement between it and the technicians unit, adopted the disputed policy.…

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

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.…

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 …

NLRB’s “Facebook Firing” Case Against AMR Settles

Earlier this week, the National Labor Relations Board issued a press release announcing the settlement of the NLRB’s Complaint against American Medical Response of Connecticut, Inc. (AMR) in what has become known as the Facebook Firing case.

In that complaint, the Board alleged that that AMR maintained an overly broad handbook policy regarding blogging, Internet posting and communications between employees and had unlawfully terminated an employee pursuant to that policy after she had posted critical comments about her supervisor and responded to further comments from her co-workers. The press release notes that, among other things, AMR has agreed to revise …

Attend Our Upcoming Complimentary Workshop – What Would YOU Do If Your Network Is Hacked?

Wednesday, February 16, 2011
11:30 a.m. – 1:30 p.m. Lunch will be provided.
Capital Club – 41 South High Street, 7th Floor
Columbus, Ohio

An employer’s human resources department can provide one-stop shopping for identity thieves, where they can find personnel records, benefits data, and payroll and tax records all in the same place. What would you do if you learned that this data had been compromised? Don’t get caught short  – learn what you can do to respond effectively to data breach intrusions, whether as a result of a lost laptop, criminal hacking, or other unauthorized access or use …