The Power of Autowrong in Life and Employment Litigation

Are you tired of people refusing to take accountability for their actions? Tired of excuse after excuse for potentially offensive words? Sick of folks blaming grammar lunacy on their iPhones?

If you answered “yes” to all three questions, please join my crusade to rid the world of the misnomer that is “autocorrect.” Or, as I like to say, “autowrong.” A close cousin to the curious “near-miss” used when two objects fortunately avoid hitting each other (wouldn’t that be a “near-hit”??), my experience with “autocorrect” is that it results in more wrong than correct. But as usual, I digress.

Shall we take this back to social media and employment law? A new lawsuit filed in Ohio entitled Warmack v. University of Cincinnati may explore the issue. In Warmack, plaintiff claims that he was copied on an e-mail between an academic director and plaintiff’s supervisor that said “I hate [N-word], was not able to get in.” In the course of its investigation, the university has apparently stated that the message was not the product of intentional racial animosity, but rather the result of a prank by an unknown individual who gained access to the supervisor’s iPad and altered the autocorrect setting to substitute “he” with the phrase “I hate [N-word].” The supervisor apparently didn’t notice the autocorrect (autowrong?) change and sent messages containing the offensive phrase.

We shall see where this goes.

Employer Take Away:   What should you as an employer take away from this development?

We all know by now that social media and electronic communications make it so easy and quick to send messages to one individual or the masses. If the university’s response is true, who ultimately should be the responsible party here – an individual who may have unlawfully gained access to the iPad or the individual who nevertheless sent an offensive message because of autowrong? Perhaps this case will sort through that.

In the meantime, this is another great cautionary tale about social media use by employees and employers. It is no longer critical that you are only extra cognizant of who is going to receive the message (click here for my rant 5 years ago on the similarly annoying/troubling use of “reply to all”), but also extra cognizant on what you are sending in what you may have thought was an informal communication that can’t be taken back and can’t really be permanently deleted.

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Beware the Facebook Settlement Disclosure

We continue to toe the line between privacy rights and social media activity. Typically, though, it’s the employee looking to protect the privacy principle. Not this time.

In the context of settlement agreements in employment lawsuits, employers generally have the greater interest in restricting public discussion and disclosure for fear that others will learn about significant monetary payments made by the company to end a lawsuit. For that reason, settlement agreements tend to contain non-disclosure/non-publicity provisions that preclude the settling employee/plaintiff from disclosing certain aspects of the settlement.

In Grullon v. Liberato, the parties settled a wage and hour lawsuit for a sizeable amount and that agreement included non-publicity provisions. Nevertheless, according to court documents filed by the defendants, an immigrant labor group involved in the case made

“a series of public postings on Facebook announcing that ‘after leading a two-year fight against wage theft, sexual harassment, and unsafe working conditions, Liberato Restaurant workers ha[d] officially won. . . . On Monday they received their first settlement checks.’”

Yet, according to court documents filed by the plaintiffs, the relevant provision in the settlement agreement made clear that the settlement agreement “is a public document” and that the only thing that could not be publicized was “the settlement sums paid by defendants in connection with this settlement[.]”

The federal judge agreed with plaintiffs and ruled as follows:

“The non-publicity and non-disparagement clauses of the Settlement Agreement do not preclude plaintiffs from discussing the nature of their claims, the litigation, or the settlement (but not the settlement amount), and plaintiffs’ conduct does not violate those provisions.”

Because the agreement only prohibited disclosure of the settlement amount itself, there was no violation from the disclosure of everything else.

Employer Take Away:   What should you as an employer take away from this development? 

There is a trend today, particularly in wage and hour lawsuits, to give greater access to information about public lawsuits and to restrict the ability of parties to shield such public access through onerous confidentiality provisions. This Liberato decision offers two takeaways:

1.         Where not otherwise barred by law (or a particular judge), make sure that the non-disclosure/non-publicity provisions in your settlement agreement is clear and specific about all of the subjects that you want to protect from disclosure.

2.         Make sure that your settlement agreements are similarly clear that disclosure through social media is as prohibited as if the disclosure were made through some other means.

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Like It Or Not, Your Employees Can Like It

It gets boring to blog just about the NLRB. We need some judicial action to get the juices flowing a little more. We got a little something last week.

Question: Is merely clicking the “like” button on Facebook tantamount to protected speech? I’ve argued that “liking” isn’t necessarily an act with any content at all. It could mean a lot of things, not the least of which could be that one Facebook user is simply “tagging” something with a “like” so that that user can have his or her “friends” see what the user has “tagged/liked.” Yes, I’m getting annoyed with all the quotes too.

In any event, the answer: Apparently yes. I first discussed the issue here on May 8, 2012, and again here on October 22, 2013. Then last year, on September 29, 2014, I noted here how the NLRB continued its pro-employee leanings by finding the click of the Facebook “like” button to constitute protected speech in In Re: Three D, LLC d/b/a Triple Play Sports Bar. In that case, employees were fired essentially for “liking” a post that was critical of their employer sports bar.

Just last week though, the 2d Circuit Court of Appeals affirmed the NLRB’s decision. The Court spilled much ink on the appropriate deference to be afforded to a governmental entity like the NLRB, before going through an analysis of whether the employee’s click of the “like” button was protected and concerted (it held “yes”) and then whether the employee otherwise acted in such a disloyal manner to lose the protections under federal law (it held “no”). Implicit there is that the decision really assumed that merely “liking” something was an activity or speech that has sufficient substance to be protected in the first place.

The next step in this case, at least procedurally, is for both sides to argue whether this “summary order” by the 2d Circuit should be published as an actual order with precedential value (Note: according to 2d Circuit rule, “rulings by Summary Order do not have precedential value). But that’s like saying “don’t clean up the toothpaste that’s already out of the tube,” or “don’t go get that horse that’s out of the barn,” or, well, you get it.  The 2d Circuit has spoken on this issue, and is the first appellate court to do so. Whether you like it or not.

Employer Take Away:   What should you as an employer take away from this development?   

So what’s next? A lawsuit over an employer firing an employee because it didn’t like a chosen emoji?  I don’t know. What I do know is that your company still needs to carefully engage in the appropriate analysis when deciding whether to take adverse action against an employee for doing something – anything? – on social media. It’s not just what the employees expressly say, it may also be what they click.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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