“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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For The Love Of G-D, Don’t Say You Love Me

We have come to this in our workplaces, in the lyrics of Annie Lennox:  “No more ‘I love you’s.”   Please enjoy today’s guest post from one of your employees:

I have difficulty getting close to people. I have trouble expressing my true feelings. Some might even call me a closed book.  When the right relationship starts to develop, I look the other way. I run. I know you know how I feel about you, but my feelings stay in my own heart and mind. I’m so happy the EEOC has confirmed that I don’t have to tell my co-workers that I love them, whether in person or on any of my social media pages.

I don’t know a lot about all this legal mumbo jumbo, and social media and employment law stuff. I can get that from this awesome blog. But it seems that the government has confirmed that I can be a ranting madman in the workplace, but can’t be required to express my love for anyone. Thus, for example, the NLRB has said that my job may be protected if I call my own boss an “as*hole,” or a “scumbag”, or “fu*king mother fu*ker.” But in this new case I found in New York federal court, called EEOC v. United Health Programs of America, Inc. and Cost Containment Group, Inc.I cannot be forced to say “I love you.”

Now, I won’t get too excited, because the lawsuit just started.  It is only a complaint filed by the EEOC, and no decision or rulings have been made yet.  In that case, the EEOC believes that the defendants discriminated against 3 individuals (and, presumably, the rest of the workforce) based on religion.  Not the employee’s religion, but the company’s “Harnessing Happiness” belief system, also commonly referred to as “Onionhead” religious practices, according to the complaint.  That system, in addition to having various spiritual and environmental elements, required employees to say “I love you” to management and colleagues.  Stop right there.   It’s one thing for my co-workers and I to run around calling our bosses stupid fu*king morons, but expressing thanks and saying “I love you” has absolutely no place in my workplace!!

The allegedly aggrieved individuals in that case did not want to participate in the company’s practices.  As the EEOC alleged in the complaint:

“Defendants failed to accommodate [plaintiffs] and other aggrieved individuals’ own religious beliefs or lack thereof.  Defendants compelled employees to take part in Onionhead-related religious activities on a routine basis to maintain their employment with Defendants. [Plaintiffs] and other aggrieved individuals made known their opposition to Onionhead related religious practices to Defendants and faced termination for this reason.”

Thank you NLRB, and EEOC.   Now please let me go back to work in anger.

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

Thanks to your employee for an enlightening guest blog post.  As a company, I think there are 3 primary takeaways from this new lawsuit:

1.         Religion, religious expression, and religious accommodation in the workplace continue to be hot-button, emotion-provoking issues that mirror the larger debate over the place that religion has in our country. The EEOC is, and will likely continue to be, focused on religious discrimination and accommodation, so your company better focus on the legal obligations under federal, state, and local law regarding what you can and cannot do in the area of religion in the workplace.

2.         Social media makes it easy for individuals to find others and engage in collective expression with others who share similarly-held sincere religious beliefs. Do not simply dismiss outright religious expression, and expressed need for religious accommodation, but rather analyze your particular situation to determine what you need to do, if anything, in response.

3.         As Annie Lennox also sang, “put a little love in your heart.”  Just not in your policies.

Posted in Opinions

The Truth About As*holes

Here’s the truth:  we are a litigious society.  For a lot of reasons beyond the scope of this blog, a smarter workforce with ever-increasing access to information and resources continues to file employment lawsuits in record numbers.  The truly legitimate ones aside, many are the result of an interpersonal dispute the employee has with his or her supervisor.  But even when the company “wins” a lawsuit after years of discovery or at trial, the value of the “win” is diminished exponentially by the time and cost of years of litigation.

Here’s the truth:  social media makes it even easier and quicker to say certain things and refer to people by certain names than one might in person.  So when you read about a particular case involving an employee exercising his or her right to engage in “protected concerted activity,” continue to keep in mind that the rules apply quite clearly to social media communications, even when the communications in that case do not necessarily involve social media.  With that, I bring you employment truism # 103: You can’t be an as*hole, but you can be called one.

In Plaza Auto Center, Inc., the employee was a salesman for a used car dealer in Arizona, who had raised complaints during sales meetings about the employer’s policies on breaks, restroom facilities and compensation.  Several complaints and meetings later, the employee apparently lost his temper in a meeting with his manager and two other employees, and called his manager a “fu*king mother fu*ker,” a “fu*king crook” and an “as*hole.”    Whoa, hold on.  Crook’s one thing, but an as*hole too??

Having broken the camel’s back with that straw, the manager fired the employee on the spot, leading to a complaint with the NLRB.  You know the drill by now, and arguably the employee was acting in concerted fashion (i.e., with other employees) about protected issues (i.e., working conditions).  At issue here, however, was the less-interpreted third step of my three-step NLRB firing analysis:  did the employee otherwise lose the protection of the law because of the nature of his outburst?

Here, the Administrative Law Judge found that the employee’s conduct consisted of “obscene and personally denigrating terms accompanied by menacing conduct and language.”  Yet on appeal, the NLRB reversed in a recent decision, since it apparently feels that that is precisely the kind of conduct we want to promote from our employees:

“We conclude that affording the Act’s protection to [the employee] here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees.  Thus, [the employee’s] outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meetings in the manager’s office where the outburst occurred; and no employee overheard [the employee’s] obscene and denigrating remarks to the owner.”


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

Don’t be an as*hole.

But if you are one, please let your employee tell you that you are one.

Alternatively, after your employee tells you that you are one, open the door and any window to your office and make the employee repeat it, so that other employees can hear.  In that case, you may be able to let your employee go.

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Data Breach Laws Continue to Come

Retail.  Financial services.  Health care. Energy.  Not an industry has been spared when it comes to recent data and cyber breaches, and the colossal damage that occurs to the interests of the company, its employees, and third parties (customers, vendors, etc.) due to a breach.  Whether by employees disclosing things through social media or by outside hackers wreaking havoc, the news continues to be riddled with cyber-related issues that your company should be thinking about if you haven’t already.

The government continues to take action.  For example, the Florida Senate just recently passed unique legislation imposing certain obligations on companies to secure personal information and to provide certain notice when a breach occurs.  Among the highlights of the Florida Information Protection Act of 2014:

  • Personal information is defined to include an individual’s first name or first initial and last name, together with one or more of a social security number, driver’s license or passport number, bank/credit/debit card number and password, medical- or health insurance-related information, and e-mail address and password.
  • Covered entities must take “reasonable measures to protect and secure data in electronic form containing personal information.
  • Covered entities must comply with certain substantive and procedural notification requirements upon a breach of security affecting 500 or more individuals in Florida.  Separate notice requirements apply to the affected individuals, as well as to the State Department of Legal Affairs.

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

You know an issue is a critical component of an employer’s operations when government entities – any government entity – can act relatively quickly on an bipartisan basis to propose and adopt legislation addressing the issue.  Here are 4 questions for you on this one:

1.         Has your company internally audited whether you are at risk for a data breach prior to a breach occurring?

2.         Has your company developed protocols and practices for how to respond internally and externally in the event of a breach?

3.         Has your company reviewed existing and potential insurance policies as one strategy for cyber risk management?   An interesting article in today’s New York Times talks about developments with cyber insurance.

4.         If you’re not in Florida, has your company figured out what the data breach requirements may be in your company’s jurisdiction?

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Living With Others Thinking You’re Fu*king Crazy

“Mara Feld a/k/a Gina Holt – you are fucking crazy!”

One of the issues we address in this blog is the notion that social media doesn’t necessarily create new claims, but rather serves as a quicker and easier platform to apply traditional claims that have existed forever.  Take defamation, for example.  Do traditional defamation rules still apply to the 2014 world of social media?  Are you fu*king nuts?

Who doesn’t love a fu*king great court decision about horses?  According to a decision just issued by a federal judge in Massachusetts, plaintiff had “arranged for her thoroughbred gelding, Munition, to be shipped to a horse farm” to become a companion horse.  Instead, the gelding was apparently sent to a fu*king horse auction, and may have ultimately been slaughtered.   A debate on horses ensued on the Internet, and defendant posted the above quoted message on her Twitter account.   Plaintiff sued for defamation, claiming that the tweet was “an unexplained indictment of Mara Feld’s sanity.”

In a very fu*king quick decision, the federal judge dismissed the case, viewing the tweet as nothing more than non-actionable hyperbole:

“The tweet cannot be read in isolation, but in the context of the entire discussion. In this case, the tweet was made as part of a heated Internet debate about plaintiff’s responsibility for the disappearance of her horse. Furthermore, it cannot be read literally without regard to the way in which a reasonable person would interpret it.

“The phrase ‘Mara Feld . . . is fucking crazy,’ when viewed in that context, cannot reasonably be understood to state actual facts about plaintiff’s mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact. The complaint therefore cannot base a claim of defamation on that statement.

“The complaint bases its claim of defamation solely on defendant’s tweet. Accordingly, the motion to dismiss will be granted.”

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

Decisions like this do not mean that anyone (including your employees) can say whatever the fu*k they want over social media.  Traditional rules in and out of the workplace, such as defamation, do apply, though courts seem willing to look at context and take into account that social media does make it more likely perhaps to provoke quick and easy emotional statements.

It’s still important to make sure your employees know that social media is not a “get out of jail free” card where they can do or say anything they want about your company or others.   The proper balance must be maintained, and considered by your company if you intend to take action based on a social media statement.   You might think I’m fu*king crazy.   But I’ve been called far worse.

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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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