“You’ve Got Served!”

Pardon my witty little play on “you’ve got mail!” from 1998.  Remember when that booming AOL voice – and what was the 50th movie teaming Tom Hanks and Meg Ryan – seemingly reflected the start of the Internet communication age?  But I digress.

As social media continues to permeate all aspects of our lives (legal and otherwise), courts continue to apply the unique realities of social media to traditional legal issues.  One that continues to come up involves the service of process (translation: serving a summons and complaint) at the start of a new lawsuit through a social networking site, rather than by personal delivery or nailing a package to a defendant’s door.

Virtually every state has a service of process statute like New York’s statute, which allows for personal service to be effectuated on a “natural person” in “such manner as the court . . . directs, if service is impracticable under paragraphs one, two and four of this section.”  In other words, a court is afforded the ability to be creative when a summons and complaint cannot be served by personal delivery, serving someone of “suitable age and discretion” at the defendant’s home or business, or by nailing and mailing.  What once may have been a potentially insurmountable hurdle at the start for a party filing a lawsuit, is now as simple a task as a click and send.

A New York Family Court Judge continued the trend toward allowing the very formal requirement of service of process to be accomplished through the very informal means of social media.  In Noel B. v. Anna Maria, the Court noted that the petitioner was unable to physically locate a spouse in the context of a child support proceeding, but knew that the spouse “maintains an active social media account with Facebook.”  After describing the nature and extent of social  media use today, the court granted the petitioner’s request to serve papers through social media:

“However, despite the absence of a physical address, the Petitioner does have a means by which he can contact the Respondent and provide her with notice of the instant proceedings, namely the existence of an active social media account. . . . [T]he Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address.  The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain.  The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.” 

So even when you have not “added a location to post” on Facebook, you can still be found.

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

Oh yes, we must have an employment law takeaway.  So it is this: social media can be used for many different reasons these days in the context of a lawsuit involving individuals (employees) who regularly use social media and social networking sites for personal and business reasons.  Whether it is attempting to locate an employee or using pictures and postings against an employee, your company should take advantage of the various strategies involved with social media whenever there is an actual or potential conflict with one of your employees.

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NLRB Still “Likes” Expansive Employee Speech

Unlike many issues, it seems that at least one issue (so far) has the NLRB on the same page as a recent court decision: whether clicking “like” on Facebook amounts to substantive, protectable speech.  In my earlier blog posts on May 8, 2012 and October 22, 2013, I discussed a Virginia case where the appellate court, in an 81-page decision, ultimately ruled that to “like” a Facebook page is the 2013 version of protectable speech.   However, that case arose out of a Constitutional challenge.  How would the NLRB decide the issue when it comes to employee speech under the National Labor Relations Act (“Act”)?  You need to ask?

The NLRB has continued its seemingly pro-employee leanings by considering the click of the “like” button to constitute protected concerted activity entitled to protection under the Act.  In In re Three D, LLC d/b/a Triple Play Sports Bar, the NLRB agreed that the company violated the Act “by discharging two employees for their participation in a Facebook discussion involving claims that employees unexpectedly owed additional State income taxes because of the [company’s] mistakes.”  The case seems to clearly involve protected activity inasmuch as the employees’ discussion involved the company’s practice relating to, or at least impacting, wages.  The question became whether the employees who “liked” the employees’ rants were sufficiently adopting the content of those rants to be protected under the Act.

On that issue, the NLRB noted that, while clicking “like” may be “more ambiguous” than engaging in the actual discussion, nevertheless it still constitutes “expressing agreement” with the co-worker’s original complaint. 

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

The company in that case has since petitioned the Court of Appeals for the Second Circuit for a possible appellate analysis of whether “liking” something is necessarily akin to substantive discussion or adoption of substantive content, and the extent to which employees criticizing a company through social media may lose the Act’s protection.  Depending on the Second Circuit’s decision, this may be the first opportunity for judicial guidance on the NLRB’s recent expansive view of social media and protected concerted activity.  Other positions taken by the NLRB over the past couple of years, such as the permissible scope of workplace policies, class action waivers, etc., and the appropriate deference owed to the NLRB, will also be at stake.   Keep watching.

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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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