Seahawks or Patriots – Do Employers Care?

Posted on January 19, 2015 by Michael Schmidt — No Comments ↓

I certainly don’t really care. My Cowboys ended their year a couple of weeks too early (yes, that was a catch). However, many people do care, for various reasons. There is, of course, the football game itself and the rooting interests that exist. The fact that Tom Brady may win his fourth title after losing his last two opportunities to the Jersey boys, or that the Seahawks can become the first team in years to win back-to-back titles, have piqued the interest of many. There are also some who are waiting to see how the financial markets do this year based on the reported historical trends that have occurred depending on whether the Superbowl is won by the NFC or AFC. From my perspective, there are social media and employment law points to be made. Here goes.

So before I officially move on emotionally to the next sport season, it’s worth finishing this NFL season with a thought on the world’s most popular one-day sporting event: the Superbowl. Fans of their Washington State and Boston/Connecticut/New Hampshire/rest-of-New-England teams obviously have tremendous interest in the February 1^st matchup, but historical ratings show that the rest of the world cares too for financial reasons. Much time will be spent over the next two weeks in person and online trying to make money on the Superbowl. And there’s the blog hook for today. Online technology, and social media in particular, have made it much easier for employees to participate in all things Superbowl, and to sit in the office and participate with those outside the four walls of the office.

If you haven’t been asked to join a Superbowl pool yet, it’s more than likely that it’s not because you have no friends at work. It’ll get to you (more than likely). But are Superbowl pools legal? And is there any impact of social media? Many states exempt “social gambling” from their anti-gambling statutes. “Social gambling” is generally defined as playing for money in a purely social context, where no player (or other person, such as a host) can make anything more or different than from simply being a player like any other player. As long as the entire pool is distributed, with nothing taken “off the top,” it is generally ok in many states.

Nevertheless, the issue of office Superbowl pools and social media raise a few noteworthy points:

1. Loss of Productivity and Time? Superbowl blogging and posting, and surfing the ‘Net for all things Superbowl, will take a lot of time. Time at work, and during working hours.

2. Can Bobby Come Out To Play? Office Superbowl pools should be open to everyone, and shouldn’t be a means for violating other workplace policies, such as by harassing or discriminating against people who choose not to join or who are not asked to join.

3. Social = Social? Permissible “social gambling” generally requires some social relationship, meaning that the promotion of your office pool to those outside the company through social media may lead to a pool that includes those with whom there is no bona fide social relationship.

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

There are bigger pictures that your company should consider when it comes to important issues and policies involving gambling and the impact that social media has had on workplace gambling. For this week and next, however, the reality is that this may be just another example of a lawyer turned Superbowl Scrooge, as it is unlikely that the cast of Law & Order will be coming into your establishment merely as a result of the upcoming big game. Perhaps you can just relax a little and allow for the morale of your employees to improve with the excitement and buildup of the year’s biggest one-day event. There are only 9 working days left until the big sports buzz is over, after all. That is, until pitchers and catchers report in about 4 weeks.

Tagged with: New York Employment Law, Office Pool, online gambling, Patriots, Seahawks, Social Media And Employment Law, Social Media Blog, Superbowl
Posted in General Social Media/Employment Law Discussion

It’s Still The Relationships, Stupid – 2014 Wrap Up (Part 2 of 2)

Posted on December 19, 2014 by Michael Schmidt — No Comments ↓

It is this same time every year, as I am wrapping things up over at “social media and employment law blog” central, that I am reminded of that election campaign more than twenty years ago when Bill Clinton coined the phrase: “It’s the economy, stupid.” Well, the economy is still in a bit of flux, but Clinton’s message still resonates in my mind as I reach the end of another year. Just as I came back to it at the end of last year: “It’s still the relationships, stupid.”

Social media and technology continue to be great things. Both have revolutionized our lives in ways never before imagined, and, at the same time, have dramatically impacted the relations between employer and employee to an extent that will never go away. Employees are using wearable technology in the workplace, and “selfie” has even been added to our dictionary. We have continued to discuss and dissect many instances in 2014 where employers have been told to toe the fine lines and manage the interplay between social media and employee relations.

For example, making sure your company crafts the narrowly-tailored social media policy that protects your legitimate business interests, while at the same time avoiding the overbroad and undefined terms that may chill your employees from engaging in protected concerted activity. Reaping the benefits of the world wide web as a source of information on applicants, but making sure you don’t learn “too much information.” Maintaining your right to monitor what goes on in your workplace and on your working time, but being mindful of your employees’ privacy rights. And, understanding how compliance with traditional laws such as wage and hour requirements can be increasingly difficult with employee use of social media and technology. The rules and opinions, and the prognosticator do’s and don’ts, will continue to evolve, and most likely repeatedly change, as we dart past another New Year’s Eve in less than two weeks.

But I guess my point at the end of this year too, ironically enough, is to stop reading electronic posts like this for a minute, get your face out of your smartphone or monitor, don’t worry about capturing your hundredth selfie (that same afternoon), and look up to talk to someone. Anyone. Let’s turn off the technology for a moment, and ask why your company is (and will be) ultimately successful. Let’s also ask why your company may be able to successfully avoid legal pitfalls and litigation. The answer: It’s still the relationships, stupid.

I continue to argue that the definition of a “plaintiff” in a lawsuit is a “pissed-off employee.” The more you communicate with your employees, the more you walk and talk the hallways, and the more your relationships with your employees are valued within the bounds of existing law, the more successful your business will be and the more likely it is that you can avoid employment disputes. Valuing, being responsive to, and maintaining your inter-personal relationships with your employees, customers, clients, vendors, and business partners will still prove to be the most important precursor to a successful bottom line.

Employer Take Away: So, what is the final takeaway from 2014? What should you as an employer take away from this development? The rapid explosion of social media, and its impact on the workplace, will never take away from the value of true inter-personal relationships. As great as today’s advances are, it doesn’t always have to be about apps, status updates, and mass communication from behind a keyboard. It also doesn’t mean that we need to give into technology at the expense of our interpersonal relationships, and the face-to-face communications that still must take place.

Individually, we are no different than we are professionally. We spend so much time connecting to someone who is not in front of us, that it’s easy to ignore what is right in front of us. We are so worried about tomorrow and next week, that the happy, meaningful and productive parts of today go unnoticed. We are so obsessed with typing to the world in words and pictures about where we are and what we’re doing, that we’re not at all focused on precisely where we are, what we’re doing, and who we’re doing it with. To me, we are successful – professionally and individually – through the relationships right in front of us.

So maybe for this holiday season, we can find even an hour to put down the BlackBerry (they still exist?) and iPhone, get to that e-mail or text in a little while, and keep the terrific picture we were about to post solely in our own heads for now. Enjoy the moment right in front of us, as it will always be about those relationships, stupid.

I greatly appreciate the time you have taken to read my blog this year, and I hope that I have provided you with some useful, informative, and perhaps occasionally entertaining insights on the interaction between social media and employment law. I look forward to continuing that effort in 2015. I wish you and your families a very healthy, happy and prosperous New Year.

Tagged with: New York Employment Law, relationships, Social Media And Employment Law, Social Media Blog
Posted in General Social Media/Employment Law Discussion

Poetic Justice – 2014 Wrap Up (Part 1 of 2)

Posted on December 18, 2014 by Michael Schmidt — No Comments ↓

This is the time of year to anxiously look forward to all that is anticipated to come in 2015. But it is also the time to look back at all that has happened in 2014. Rather than simply give you links to all of my stimulating blog entries from the year that has passed (I’m confident you know how to search “archives” on this blog), I thought I would instead do the “2014 Year In Review” in song, as I have done this time the past few years. So, if you know the tune to “The Twelve Days of Christmas,” please close your office door and sing along to this reminder of the many 2014 social media concepts that I leave with you for the holidays:

The 1^st social media

Reminder left for me

Beware still the N-L-R-B

The 2^nd social media

Reminder left for me

Care with office parties

And beware of the N-L-R-B

The 3^rd social media

Reminder left for me

Summons served on Facebook

Care with office parties

And beware of the N-L-R-B

The 4^th social media

Reminder left for me

Tracking wage and hours

Summons served on Facebook

Care with office parties

And beware of the N-L-R-B

The 5^th social media

Reminder left for me

“Like” is free speech?

(dramatic pause)

Tracking wage and hours

Service

Care at party time

And beware of the N-L-R-B

The 6^th social media

Reminder left for me

Protecting your data

“Liking” is free speech

Tracking wage and hours

Summons served by MySpace

Selfies at your parties

And beware of the N-L-R-B

The 7^th social media

Reminder left for me

Religious expression

Hackers’ got our data

“Like” is free speech!

Tracking wage and hours

Service

Care at party time

And beware of the N-L-R-B

The 8^th social media

Reminder left for me

Textual harassment

Religious expression

Data breach is coming

“Like” is free speech

Tracking wage and hours

We’ll find you through your “friends”

Drinking while you’re typing

And beware of the N-L-R-B

The 9^th social media

Reminder left for me

He called his boss a scumbag?

Textual harassment

Online religion

Data breach and privacy

“Like” is free speech?

Tracking wage and hours

Service

Photobomb your boss

And beware of the N-L-R-B

The 10^th social media

Reminder left for me

Policies are too vague

He can call his boss a scumbag?

Textual harassment

Religious expression

BYOD

“Like” is free speech

Track their wage and hours

Service of your summons

Care at office parties

And beware of the N-L-R-B

The 11^th social media

Reminder left for me

Surreptitious access

Overbroad policies

He called his boss a what??

Textual harassment

Collective expression

You lost your laptop where?

“Like” is free speech

Track their wage and hours

Catfish relations

In-box is good service

And beware of the N-L-R-B

The 12^th social media

Reminder left for me

Manage expectations

Surreptitious access

Overbroad policies

He can call me a scumbag?

Textual harassment

Religious expression

Cyber security

“Like” is free speech

Track their wage and hours

Service on LinkedIn

Be careful at your parties

And beware still the N-L-R-B!

Tagged with: New York Employment Law, Social Media And Employment Law, Social Media Blog, Twelve Days of Christmas", year in review
Posted in General Social Media/Employment Law Discussion

“You’ve Got Served!”

Posted on October 20, 2014 by Michael Schmidt — No Comments ↓

Pardon my witty little play on “you’ve got mail!” from 1998. Remember when that booming AOL voice – and what was the 50^th 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.

Tagged with: Facebook, New York Employment Law, service of process, Social Media And Employment Law, Social Media Blog
Posted in Opinions

A Man Among In-House Counsel

Posted on October 2, 2014 by Michael Schmidt — No Comments ↓

I will be attending the 2014 annual meeting of the Association of Corporate Counsel (“ACC”) in New Orleans from October 28^th through October 31^st, as my firm is again proud to be a sponsor of the ACC’s annual conference. For those interested, you can follow the events and panels at @ACCinhouse, and tweet using #ACCAM14. For those willing and able to register for the annual meeting (there’s still time), here is a link to do so.

One of the many interesting panels worth attending will involve a discussion on marketing and social media, and the regulatory concerns that may arise when a company engages in online advertising, marketing, testimonials, and promotions. The Federal Trade Commission (“FTC”) has been a big player in this arena, having issued guidelines about when and to what extent you or your employees can discuss your company’s products and services through social media, and the potential pitfalls in doing so. The FTC issued guidance materials on these issues effective in December 2009 and more recently in March 2013.

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

Social media has clearly changed the conversation from a traditional, one-way description of your company’s products and services to a more collective dialogue with your outside consuming public being engaged and involved in your message. In increasing numbers, companies are also choosing to rely on their own employees to help define how the brand is perceived, and help monitor public reaction to the conversation. This is an area worth watching as new developments continue to arise.

And, for those interested, I will be live tweeting at this and other relevant employment law panels at the ACC meeting, so feel free to follow me at: @MSchmidtEmpLaw.

Tagged with: #ACCAM14, @ACCinhouse, Association of Corporate Counsel, endorsements, Federal Trade Commission, FTS, New York Employment Law, Social Media And Employment Law, Social Media Blog, testimonials
Posted in General Social Media/Employment Law Discussion

NLRB Still “Likes” Expansive Employee Speech

Posted on September 29, 2014 by Michael Schmidt — No Comments ↓

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.

Tagged with: employment law, Facebook, like, New York Employment Law, social media, Social Media Blog, speech, Triple Play Sports Bar
Posted in Opinions

Statements Are As Important As Actions Are In Sports Too

Posted on July 7, 2014 by Michael Schmidt — No Comments ↓

I often like to use the world of sports as a backdrop for employment law and social media points. After all, athletes are essentially employees of the teams they play for, right? And here’s another recent case in point of how monitoring social media use of an employee (athlete) can sometimes be a good thing for the employer (team).

With all the hoopla of the World Cup and whatever extra time/stoppage time there has been over the past couple of weeks, an interesting NFL development came in slightly under the radar. Jimmy Graham of the New Orleans Saints has been in a dispute with the team over whether he should have been offered a “franchise tender” (essentially, a pre-determined one-year salary that has been previously established in the players’ collective bargaining agreement) as a “wide receiver” or as a “tight end.” The difference means several millions of dollars to Graham, as wide receivers happen to occupy a higher slot in the table of franchise tenders (approximately $12.3 million versus $7.035 million for tight end franchise tenders).

No need to get lost in the weeds of all the arguments, but suffice it to say that the Saints organization claimed that Graham is listed as a tight end by the team, was drafted as a tight end by the team, that tight end is his principal position, and, therefore, he should be given a franchise tender for 2014 at the (lower) tight end rate. Graham, as you would expect, was claiming in his dispute that he should be classified as a wide receiver with the (higher) wide receiver rate because he spends about two-thirds of his time on the field lining up in similar formations as a wide receiver would.

Are you still here?

Where’s the social media, Mike?

Thanks for staying with the post. You see, Graham apparently listed himself as a tight end on his Twitter account. Ouch. Good thing someone thought to check his profile when involved in Graham’s salary dispute.

Last week an arbitrator ruled that Graham was what he said he was: a tight end.

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

Yes, you should heed all of the advice about the way in which your company mines employee social media accounts, and make sure there are no legal/privacy rights being infringed. With that said, there is no reason you should not continue to use social media to your benefit where applicable and appropriate. Just by way of a couple of examples:

1. Do you have a former independent contractor who is now claiming to be an “employee” to collect unemployment benefits or some other legal protection? Check LinkedIn, Facebook, and the other social media accounts to see if the individual refers to himself or herself as a “freelancer” or “consultant” or, better yet, “independent contractor.”

2. Do you have a former or current employee who claims to be misclassified as an “exempt” employee because the employee says that he or she only does grunt work, rather than perform management-type duties? Check LinkedIn, Facebook, and the other sites to see if online resumes and profiles tend to highlight the management duties the employee believes he or she performed during your employment.

Mine, but mine cautiously. You might find a gold mine of words.

Tagged with: bio, Jimmy Graham, New Orleans Saints, New York Employment Law, profile", Social Media And Employment Law, Social Media Blog
Posted in General Social Media/Employment Law Discussion

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

Posted on June 13, 2014 by Michael Schmidt — No Comments ↓

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