Recently in Social Media and the Workplace Category

November 12, 2012

Obama's re-election evokes ugly Facebook-racism from some employees

Stamp Out Racism, August 2010To all the haters of social-media policies:

If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.

Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.

Two despicable examples from this past week follow after the jump...

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November 6, 2012

2 tips to help your social media policy withstand NLRB scrutiny

policyhighlight.jpgNotwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco's social media policy, you'd think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.

Well, not so much.

Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It's worth a read. Click through...

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October 22, 2012

Employee's Twitter hatin' costs him unemployment benefits

TwitterLogo.jpgAn employee getting fired for caustic social-media posts is so 2011. Having an application for unemployment-compensation benefits denied because of Twitter stupidity -- that's the new black.

Details of a recent Commonwealth of Pennsylvania decision -- don't tread on me, Idaho -- after the jump...

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October 16, 2012

Everything's bigger in Texas. Even the Facebook stupidity.

A Texas court held earlier this month that an employer lawfully fired a paramedic who posted on the Facebook page of a co-worker that she wanted to slap a patient.

But, the plaintiff's rant isn't the worst of it.

facebookbackground.jpgWhen warned by a co-worker that the plaintiff's Facebook post was accessible by the general public, the plaintiff responded -- publicly on Facebook:

Yeah, whatever. YOU weren't there. Whenever I have to have a firefighter ride in with me because of a patient's attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Think about that the next time YOU correct someone!!

As you can imagine, once the company got wind of this, it fired the plaintiff for being "unprofessional and insubordinate." Subsequently, the plaintiff sued for invasion of privacy.

Invasion of privacy?!? For accessing Facebook posts. That were public. That the plaintiff was told were public. That the plaintiff acknowledged were public. Plaintiff loses. (Decision here)

Did I mention that the Texas court that decided the case was an appellate court? The plaintiff frigging appealed her initial defeat -- one that previously blogged about here.

And y'all wonder why our legal system sometimes gets a bad rap. Oy!

October 10, 2012

Does the Computer Fraud and Abuse Act cover lost LinkedIn business opportunities?

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In the beginning of the year, I wrote here about a federal-court decision, which recognized that LinkedIn connections are not company trade secrets. Earlier this month, that same court, in the same case, was asked to decide whether hijacking an employee's LinkedIn account may violate the Computer Fraud and Abuse Act (CFAA).

In Eagle v. Morgan, the plaintiff, Dr. Eagle, claimed that her former employer had locked her out of her LinkedIn account for 22 weeks. Thus she was "unable to receive 'invitations to connect, business opportunities and ongoing communications with clients, potential clients and other business and personal contacts.'"

Sounds fairly vague to me. Besides, they have this thing called the telephone...

Anyway, the Court put the kibosh on Dr. Eagle's CFAA claim. It recognized that the CFAA permits a plaintiff to recover for loss related to the impairment or damage to a computer or computer system. However, a "loss" does not extend to potential business opportunities, especially speculative ones -- like the kind that may develop from connecting on LinkedIn.

How could all of this have been avoided? By better defining at the outset -- during the employment relationship -- whether Dr. Eagle's LinkedIn account belonged to Dr. Eagle or the company. With respect to issues involving ownership of social media accounts, I'll repeat three tips from a post earlier this year:

  1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
  2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. (Easy, folks. I'm not suggesting that companies should set up personal employee social-media accounts for them -- only those accounts in which the company seeks to maintain an ownership interest). Also, be sure to consider the terms of use that any social-media company has in place for end users.
  3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.
October 2, 2012

In its first Facebook-firing decison, the NLRB backs an employer

All Saints church - flying pig - - 1692162Look out for that flying pig!!!

No, it's true. I've got proof after the jump...

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October 1, 2012

CA enacts workplace social media protections; NJ gets closer

Thumbnail image for facebookprivacy.jpgLast week, CA became the third state to pass a law that bans employers from requesting online usernames and passwords from employees and job candidates. Maryland was the first state to pass such a law; Illinois was the second.

As in the other two states, not only is it illegal to request online information, but also CA employers may not retaliate against anyone who refuses to turn it over.

There are two carve-outs in the CA law to protect legitimate employer interests. An employer may:

  1. require an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations; or

  2. require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Meanwhile, in NJ, the Senate Labor Committee voted 4-0-1 in favor of a similar bill. Under the proposed NJ legislation, the aggrieved party may seek injunctive relief, compensatory damages, counsel fees and court costs. According to (here), the 1 absention came from a Republican Senator who wishes to amend the bill by removing that private cause of action.

That legislation now goes to Governor Christie for signature.

September 20, 2012

NLRB's 1st social media ruling: Slams Costco policy; greenlights defamation

candycorn.jpegIt's been a while since I've addressed social media policies and the National Labor Relations Act on this blog. Longer than Kim K's marriage to what's his name? Indeed. Methinks things at the National Labor Relations Board have been quiet lately. Maybe a little too quiet.

And then...! [Cue music]

Earlier this month, for the first...time...evah, the NLRB weighed in on the validity of an employer's social media policy.

I know. I know. Sit down, catch your breath. This is big stuff! Big stuff!!! Mmmm...double stuf. And speaking of Oreos, have you seen these bad-boys? Who wants to send me a package for Halloween?

Wait! What were we talking about again? Was it fantasy football? Should I start Martellus Bennett tonight? 

No, it was NLRB. Dang! What did the NLRB decide about social media policies? WHAT OF SOCIAL MEDIA POLICIES!?!? I won't keep you in suspense any longer. Hit the jump and find out!

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September 14, 2012

Yo, Boss! Did you say "Spacebook" and "Tweeter"?

spacebook.jpgPenn State Kicker Sam Ficken probably had a pretty bad week. Last Saturday, he missed one extra point and four field goals in Penn State's 17-16 loss to Virginia. After the game, he was deluged with online insults.

Thankfully, his coach, Bill O'Brien, came to his defense.

Obviously, I think it's absolutely ridiculous. Not just because it's a 19-year-old college kid. It's just because, I mean, it's anonymous in some ways, and in other ways it's not. But at the end of the day, you know, these guys are really playing hard, giving great effort for us," O'Brien said. "To go on whatever, Spacebook [sic] or Tweeter [sic], or whatever [and] put stuff on there is just absolutely ridiculous to me and very cowardly, to be honest with you. But that's just my opinion . . . I don't know what type of people do that.

It's refreshing to see one's boss (so to speak) go to bat like this. However, it looks like someone could use a little Social Media 101.

(h/t Philadelphia Daily News)

September 11, 2012

Court grants access to plaintiff's social media in discrimination case

lockandkey.jpgMany times on this blog (e.g., here, here, and here), I've discussed the discovery of a plaintiff's social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff's injury isn't as a severe as he claims it to be. So, it seeks access to plaintiff's Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I'll discuss a new one decided late last month and offer some related tips for employers after the jump...

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September 10, 2012

POLL: Your employees post THIS YouTube video. What do you do?

Over the weekend, I heard PSY's catchy song Gangnam Style for the first time. Coincidentally, I then read this story from Kathleen Miles on the Huffington Post about 14 Gen-Y lifeguards at a city pool in El Monte, CA, who posted this video (below, left) on YouTube spoofing the original "Gangnam Style" music video (below, right).

In response, the City fired the 14 lifeguards for using City property, including the pool and their uniforms, for private use. Sure, the City was within its rights to fire these employees. But, was that the ideal response?

Let's pretend that you are the decisionmaker for El Monte, CA. What would you do? Let me know in the comments below.

September 5, 2012

Ethics charges for two lawyers over Facebook friending a litigant

facebutton.pngIt was bound to happen sooner or later...

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump...

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August 7, 2012

Facebooking about "naked Twister" may doom one's sexual harassment claims

TwisterAnd some of you wonder why I enjoy blogging about HR and employment law.

More after the jump...

(What I won't do for my loyal readers....)

Continue reading "Facebooking about "naked Twister" may doom one's sexual harassment claims" »

August 2, 2012

Snoop Dog becomes Snoop Lion! And news of a new employee Facebook law

Snoop DogCalvin Broadus a/k/a Snoop Dogg is now the artist formerly known as Snoop Dogg. During a recent trip to Jamaica, Snoop was apparently *** afraid to add snarky strikethrough for fear of losing job ***  "born again" and is now Snoop Lion. 

But in even BIGGER news --

Drop it like it's hot!

Yesterday, Illinois became the second state, after Maryland, to make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information to gain access to an online account. 

Fo' shizzle!

Under Illinois' "Right to Privacy in the Workplace Act," it is now also unlawful for an employer to require that an employee or prospective employee log into their online account so that the employer may gain access.

*** Searches for other Snoopisms -- finds nothing blog-appropriate ***

The Act does have a few carve-outs for employers. Employers may still maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use. And if employers want to monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting passwords, then by all means.

No word from Snoop Lion if he approves of Illinois' new law. But, like you, he is welcome to sound off in the comments below.

*** Sets blog-comments-spam-filter to "volcano" ***

July 16, 2012

Breaking stupid: A hella-dumb Facebook invasion-of-privacy claim

texasflag.jpgFrom the state that just loves our sloppy seconds -- out-of-work wide receiver who cries about a fumbling quarterback say, "What. It's unfair. That's my quarterback." -- comes this case about a Facebooking emergency medical technician from Texas. 

To protect the innocent -- in the event that you've yet to click on the case link -- we'll call the employee-plaintiff "Misguided." Misguided the EMT was fired after posting on his co-worker's Facebook wall about how he wanted to boot a ultimate fighter patient in the head. 

Instead of just swallowing the bitter pill, Misguided sued his former employer for -- get this -- intrusion upon seclusion. (basically, an invasion of privacy).

Invasion of privacy on a co-worker's Facebook page. And people wonder how I get material for this blog. 

Feel me flow on this steaming pile after the jump...

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