Recently in That's what he/she/they said... Category

June 12, 2014

Apparently, you can curse your boss out and still keep your job

latrelle.pngWhat with me gabbing on about firefighters afraid of fighting fires, butt grabs, and some Delaware lawyer starving himself over social media, I missed this National Labor Relations Board decision, in which the Board basically held that, as long as you don't go too far and pull a Latrell Sprewell, you can curse out your boss with impunity. 

Literally, you can call your boss a "f*%king crook," an "a$$hole," and "stupid" on a Friday, and still have a job to come back to on Monday.

God bless America.

For more on this Board decision, check out these posts:

March 19, 2014

That's what she said: How to navigate the pitfalls of the FCRA

whatshesaid.jpgWhen the Fair Credit Reporting Act comes a knock knock knockin' on HR's door, who among you, will answer the call?

Fear not, kids. Cinch on your big boy/girl underpants! My colleague, Stacey Schor, in this post, has outlined a recent federal court decision that provides valuable guidance on how employers can comply with the strict requirements of FCRA, so that your hiring decisions are FCRA-bulletproofed.

This one goes out to all out FCRA freaks fans. Holler if you hear me!

October 16, 2013

That's what they said: Social media and the workplace and the lawsuits

theysaid.jpgOne social media-related post in October. One may be good enough for the Red Sox -- eat it, Detroit -- not here.

So, with a little help from my friends, I've got three stories on the the impact that the technology in the workplace has on litigation proceedings.

Over at the Technology & Marketing Law Blog, Venkat Balasubramani writes here about a recent decision in which a court found that a passenger's social media rant against and airline employee may not have been defamation, but it was enough to create a claim of "false light."

Molly DiBianca at the Delaware Employment Law Blog (here) details a case in which the discoverability email is at issue. There, the court found that the employer defendant had to preserve relevant email from the personal email accounts of three of the company's former officers, because, the company should have known that these individuals were conducting company business from these personal email accounts.

Finally, we have this complaint I saw filed in Maryland federal court last week, where the plaintiff alleges that his former employer violated his First Amendment rights when it fired him for what the plaintiff described as "a satirical comment concerning assault weapons legislation" on his Facebook page. Specifically, the plaintiff wrote, "My aide had an outstanding idea .... Let's kill someone with a liberal ... then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal ... its almost poetic..." He then "liked" a Facebook friend's response, which read, "But ... was it an '[assault] liberal'? Gotta pick a fat one, those are the 'high capacity' ones. Oh pick a black one, those are more 'scary.' Sorry had to perfect on a [sic] cool idea!"

Can't wait to see how that one turns out.

September 19, 2013

That's what they said: Facebook "Like" under the First Amendment, same-sex marriage benefits, plus a carnival

theysaid.jpgNow, where did I put the mustard for my deep fried Red Bull battered Twinkie dog? (Like I would ever use ketchup for that?!?)

While I search for the spicy brown, after the jump, I'll get you caught up on the latest employment-law news...

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July 18, 2013

That's what they said: Lotsa NLRB news, and an employment-law carnival

theysaid.jpgSo much labor-and-employment-law news this week, I'll do what I can to cram it into a single post. Here goes...

From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to -- gasp -- seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option and compromising photos..

Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB's General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.

Now the bridge from labor to employment, as ESPN reports here that Major League Baseball and its union have agreed to bolster its policies against harassment and discrimination based on sexual orientation. Well done!

And finally, what would a Thursday be without an employment law blog carnival. Or a summer road trip. Or both. Robin Shea at the Employment and Labor Insider brought you both right here!

June 27, 2013

Supreme Court DOMA ruling "In Plain English"; impact on employers

theysaid.jpgWant an explanation of yesterday Supreme Court decision regarding challenges to California's ban on same-sex marriage and the federal Defense of Marriage Act, check out Amy Howe's analysis "In Plain English" at

And for more on yesterday's decision and the impact it may have on your business, check out:

November 28, 2012

That's what he said: SCOTUS hears argument on who is a "supervisor"

lylepuzzle.jpgMaetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation. Vance later sued and lost because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers. 

Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it's check mate. 

In instances of co-worker harassment, where tangible employment actions wouldn't be at issue (because the harassing co-worker wouldn't have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has "been negligent either in discovering or remedying the harassment."

Concluding that the harassment in the Vance case was perpetrated by coworkers, the Seventh Circuit Court of Appeals opined (here) that a Title VII "supervisor" must do more than direct and oversee the victim's daily work. Rather, the supervisor must also have the power to take formal employment actions against victim (i.e., hire, fire, demote, promote, transfer, or discipline).

Subsequently, Vance appealed and, Monday, the U.S. Supreme Court heard oral argument. You can get a copy of the transcript here. Also, be sure to check out Lyle Denniston's argument recap at SCOTUSblog here. Based on oral argument, it appears that the more conservative justices are leaning towards adopting the Seventh Circuit's approach. The liberal judges may favor a case-by-case factual analysis to determine who is a Title VII supervisor.

Meyer's prediction: Supreme Court adopts the Seventh Circuit's test.

Image credit:, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

November 13, 2012

That's what he said: Attorney Tips for Seeking Social Media Discovery


I'm gearing up to host the Employment Law Blog Carnival on Wednesday, so I'm mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman's Technology and Marketing Law Blog.

Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.

Speaking of which, have you heard this one?

At divorce court, a family is eagerly waiting for the judge to grant custody of little Johnny. The judge asks Johnny, "Do you want to live with your dad?" Johnny replies, "No, he beats me!" So, the judge asks, "Johnny, do you want to live with your mommy?" Johnny says, "No, she beats me too!" Exasperated, the judge asks, "Then with whom do you want to live?" To which Johnny replies, "The Philadelphia Eagles. They don't beat anyone!"

Boy, do I have a tendency to get sidetracked. Anyway, to get my attorney-readers caught up on how to get access to litigant social media pages, check out Venkat's article here.

May 18, 2012

That's what they said: "Naked ambition" and a "voyeur boss"? (And more...)

theysaid.jpgAs evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

May 9, 2012

That's what he said: "Oktoberfest" & "No OT for you!"


Cool image, huh? I drawed it myself. The fact that I took the time to do that suggests that I am in no condition to blog intelligently. Plus, Pandora is on the fritz, so I am all sorts of pissy. Therefore, before I turn out the lights and lock the door at the office, how about some Slipknot -- anger issues, Eric? -- and "That's what he said" after the jump...

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May 4, 2012

That's what she said: A hairy religious discrimination claim is settled

If only I had a nickel for every time someone asked me, "How do you have time to blog every day?" The answer is simple: Jolt Cola Juleps and rogue Keebler Elves I just enjoy writing. But even so, it can get tiring sometimes.

I was discussing this with a few HR blogger friends over dinner a few Fridays ago. They empathized. And then, I smiled, as whatever the opposite of writer's block is overtook me faster than a fat kid at a cake buffet:

I'll just do a post called "That's what she said."

Boom! Plagiarism! Double entendre + less work for me = one happy blogger dork.

I've struck gold...after the jump...

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Continue reading "That's what she said: A hairy religious discrimination claim is settled" »