A Three Course Meal For The New Year

Happy New Year.   So much has happened while you spent the holidays undoubtedly velobinding and wrapping the 2012 archives of this blog for your friends and loved ones.   So I thought I’d welcome everyone back by updating some old (i.e., December 2012) issues.   Sort of a New Year buffet.

Chafing Dish #1 – NLRB and Facebook Firings.   You may recall that on September 7, 2011, I posted about the case of In re: Hispanics United of Buffalo, Inc. which arose from the termination of five employees who engaged in a conversation on Facebook that started with:  “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it!  My fellow coworkers how do you feel?”   A discussion among co-workers ensued, which included some derogatory remarks toward another coworker.  Three days after the initial post, the company terminated the posting employees on the ground that “the posts constituted bullying and harassment and violated HUB’s policy on harassment.”

A hearing was held on July 13th-15th, and the Administrative Law Judge (“ALJ”) subsequently determined that the employees were fired in violation of their rights to engage in concerted activity.   On December 14, 2012, the NLRB (on appeal) affirmed the ALJ’s rulings, findings and conclusions.   In an almost defensive-sounding tone (to, perhaps, suggest that the NLRB is not really that activist a board at all), the NLRB began:  “Although the employees’ mode of communicating their workplace concerns might be novel, we agree with the judge that the appropriate analytical framework for resolving their discharge allegations has long been settled[.]”   The NLRB agreed that the Facebook postings were concerted and protected, and that the 5 employees were discharged “based solely on their postings.”

Chafing Dish #2 – Discovery of Private Facebook Posts in Employment Case.   In the most recent case of disclosure trumping privacy, a federal magistrate judge in the Eastern District of New York on December 27, 2012 permitted a defendant to obtain a wide-array of private Facebook posts and pictures.  In Reid v. Ingerman Smith LLP, plaintiff brought a sexual harassment suit against her former law firm employer.  

Noting the critical point that defendant had sufficiently tied the publicly available evidence to what would reasonably be expected from the private portions, the court held: 

“After examining the submissions, this Court finds that the photographs and comments that plaintiff posted on her publically available Facebook pages provide probative evidence of her mental and emotional state, as well as reveal the extent of activities in which she engages.   I also find that plaintiff’s private postings may likewise contain relevant information that may similarly be reflective of her emotional state.”

Chafing Dish #3 – Facebook Password Demands.   On December 28, 2012, Michigan became the fourth state (after, say them with me:  Maryland, Illinois and California) to enact a law prohibiting the (not so prevalent?) conduct of demanding an employee’s social media password and account information.   Michigan’s Governor Rick Snyder signed into law the “Internet Privacy Protection Act” which provides that private and government employers cannot request or demand that an employee or applicant grant access to or allow observation of private Internet accounts, and similarly cannot penalize an employee or applicant for failing to do so.

Interestingly, to address the trend of schools looking at social media for potential enrollees, the new Michigan law also provides similar limitations on public and private educational institutions.    The law allows for civil and criminal penalties for violations, and became effective immediately upon signing.

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

I hope 2012 has not made you too full to consume more about social media and employment law.   2013 will likely bring continued and new developments in this area, and we’re just getting started.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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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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