What’s Not To Like About Protected Speech?

At the expense of sounding too corny, sometimes these issues are fascinating.   As much as they are practical, from a takeaway standpoint.

Back on May 8, 2012, I blogged about an interesting federal case in Virginia that addressed what it means to like something.   As I am sure you will remember from that post, a Sheriff in Hampton, Virginia had fired six of his workers when one of them “liked” the Facebook page of an individual running for election against the Sheriff.   The employees sued, and the federal judge in the Eastern District of Virginia dismissed the lawsuit.  That judge ruled that the employees were not entitled to free speech protection, finding:  “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

Fast forward a year and a half, and the appellate court has just reversed that decision, allowing the lawsuit to proceed again.   The 81-page decision is a great example of how social media and technology has really impacted traditional notions of employment law, such as retaliation and employee free speech.   The appellate court began the relevant portion of the decision by framing the issue this way: “To consider whether this conduct amounted to speech, we first must understand, as a factual matter, what it means to ‘like’ a Facebook page.”  

Unlike the first judge, the appellate court ultimately reached the conclusion that to “like” a Facebook page is the 2013 version of protectable speech.   Read this interesting analysis, and decide whether you agree with it in the context of what you believe “speech” is and what you believe one does when clicking a “like” button:

“Carter’s clicking on the ‘like’ button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends.  And it caused Carter’s name and his profile photo to be added to the Campaign Page’s ‘People [Who] Like This’ list.  Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.   On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.  In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable.”

And here’s the kicker, tying social media and technology to traditional notions of expression: 

“That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.   Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression.  The distribution of the universally understood ‘thumbs up’ symbol in association with Adam’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adam’s candidacy. . . .  In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it.  In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

I don’t know.   On the one hand, a mere click of the “like” may simply be a non-substantive way to have other friends view someone else’s page or link, without the like-er expressing a position one way or the other.   In that sense, are we in danger of expanding the boundaries too far to allow potentially vague and ambiguous acts to constitute protected expression?  On the other hand, there is a fairly good history of American jurisprudence where conduct (and not a spoken or written word) constitutes protected speech, such as the desecration of the American flag being protected as symbolic speech. 

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

Courts and government agencies will continue to test the boundaries of legal concepts that existed long before social media and technology took us over.   Employees will continue to engage in activities through social media that you might not like, and might not even consider to be an activity in the first place.  A technologically-enabled message without actual verbiage, and perhaps without any act at all, other than a mouse click.   But will these social media acts constitute protected concerted action for purposes of the NLRA?    Will they constitute protected activity for purposes of anti-retaliation statutes in the private sector?

The more we get judicial decisions on what is and what is not considered to be protected activity in this new social media era, the more critical it is for your company to understand what it can and cannot do in response to such activity.   Whether you like it or not. 

Michael Schmidt

Michael Schmidt

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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Going Gaga Over Wage And Hour Obligations

What would you say is one of the biggest impacts on employers of this new (well, maybe, not so new) era of technology?   The inability of employers to know about and keep track of time spent by employees working off premises and outside of “normal” working hours;  an inability aided by employee use of social media and technology devices.   

The concept is highlighted in a lawsuit brought by a former personal assistant to Stefani Germanotta, known by most of us as Lady Gaga.   The lawsuit was filed in New York federal court in 2011 (case number 11-9128), in which plaintiff alleges that she was “expected to be working and/or on call every hour of every day” while she was employed by Gaga, and thus plaintiff is owed overtime pay for every single hour in every day beyond those up to the first 40 hours in the week.  As court documents describe, Gaga moved into plaintiff’s apartment prior to 2008, and in early 2009, offered plaintiff a job as Gaga’s personal assistant.  Plaintiff worked in that capacity in early 2009, and then again from February 2010 until she was terminated on March 5, 2011.

Court documents have plaintiff describing her duties as:

“anything and everything that [Gaga] needed, from cleaning the hotel room and cleaning up after her to helping her put her makeup on, have her makeup done, making sure her hair looked right before she went on stage, making sure she drank water, making sure she had tea, making sure that she ate, making sure she was hopefully on time to places.  And just being there for her.”

More relevant to this blog, plaintiff was also required to stay on-call 24/7 and constantly monitor Gaga’s e-mails.  Plaintiff alleged:

“I’m always working 24/7 because I’m on call.  My phone is on, I’m expected to carry my phone with me at all times, to pick up the phone no matter what I’m doing, no matter where I am, and tend to what it is that [Gaga] needs.  So I consider myself to be on call 24/7 and available for her 24/7.”

Plaintiff even described how she would share a bed with Gaga (rather than have her own hotel room on tour), and was woken up by Gaga to replace a DVD in the TV when Gaga was tired of watching it in the middle of the night.   For her part, court papers indicate that Gaga admitted that plaintiff didn’t exactly have a schedule, and that when plaintiff was needed, she had to be available.  But Gaga asserted that plaintiff could still do other things while waiting to be tasked with another duty.  So the issue here is whether the time that plaintiff alleged to be “on call” was so restricted as a matter of law that the time constitutes “work time,” or whether plaintiff could sufficiently do what she wanted while “on call” so that the time should not be counted.

The analysis is often complicated – and usually not a mere semantic game – when the employee is, for example, at a baseball game with a friend, and responds to e-mails on her BlackBerry at the same time she is in the stands.   Social media, and technology in general, makes it easier for employees to work (or say they work) anywhere, anytime, and makes it harder for employers to keep track of the time and pay their employees properly.   In a decision filed earlier this month, the federal judge denied Gaga’s motion to summarily dismiss plaintiff’s claims, ruling that a jury should resolve the factual and credibility issues that existed.   Trial is scheduled to start on November 4th.  Will keep you posted on this Bad Romance.

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

Do you want to be in this fight?  I don’t mean with Lady Gaga specifically, I mean a fight over how many hours were truly “worked” by an employee versus how many of those hours could be used by the employee for his or her own purposes. 

We know that many of your employees have access to e-mail from supervisors and documents/files they could be working on at all hours of the night, from anywhere in the world. Do you have sufficient policies, practices, and protocols in place to minimize your exposure to a large wage and hour claim?   It will mean the difference between going gaga and gagging. 

Michael Schmidt

Michael Schmidt

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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Post Summer Part 5 of 5 – Continuing the Discovery

Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law.   In the final Part 5 today:  The discoverability of private social media posts in employment law lawsuits.

Jewell v. Aaron’s, Inc. is a wage and hour (overtime) case pending in federal court in the Northern District of Georgia.   In these types of cases, an employee (on behalf of himself or herself, and seeking to represent a similarly situated group of other employees) primarily alleges that more than 40 hours were worked in a workweek, yet overtime compensation was not paid for those hours in excess of 40.   One of the claims in Jewell is that the company automatically deducted 30 minutes from employees’ pay for a meal period, even though the employees did not always take the meal break.

The company argued that employees did take lunch breaks, and sought to develop proof of that by seeking discovery of postings that all plaintiffs made to various social media web sites during work hours (to show that employees were taking breaks when they made the posts).  The company’s ability to defend these claims was particularly critical, since 1,700 individuals “opted in” to join the lawsuit, with 87 of them randomly selected to participate in whatever discovery would ultimately be permitted by the court.

Plaintiffs objected to the social media discovery requests as “unduly burdensome,” and estimated that searching each of the requested web sites and comparing the posts with each employee’s work schedules “could require anywhere from 1,323 hours to 26,462 hours, depending on the number of daily posts made by each opt-in plaintiff.”

On July 19, 2013, the court denied the company’s request for the discovery.  Recognizing that content from social media sites “may be subject to discovery,” the court found that the company’s identified benefit did not outweigh the burden.   Indeed, the court’s rationale is consistent with denials in other cases we have highlighted in this blog, in that the company was found not to have made a sufficient showing (beyond speculation) that “the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”

In other words, the court found that the burden on plaintiffs was outweighed by the company’s desire to get relevant information, when that desire was expressed only as a possibility or hope that relevant information may be found.

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

When thinking about whether and when to seek social media-related discovery in your next lawsuit, consider two points:

            1.         Take as much discovery as you can through other means before seeking discovery of social media sites.

            2.         To reduce the likelihood that your ultimate request appears to be a fishing expedition, base your request for discovery of social media sites on a showing that the posts will lead to evidence directly tied to the prosecution or defense of the particular claims in your case.

Michael Schmidt

Michael Schmidt

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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Post Summer Part 4 of 5 – Logos, Lids and Lenses

Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law.   In Part 4 today:  The use of company logos, and picture taking in the workplace.

The NLRB continues to be very active in the area of workplace policies and practices.  On July 31, 2013, an Administrative Law Judge at the NLRB issued a decision in In Re World Color (USA) Corp.   World Color prints commercial inserts in newspapers for other companies who seek to advertise sales, and maintained a workplace rule that prohibited employees from wearing baseball caps “except for Quad/Graphics baseball caps worn with the bill facing forward.”  Apparently, there were safety concerns about employees wearing “gang insignia and symbolism” that, at least in part, prompted the policy.   The policy was challenged on the basis that employees were precluded from wearing/displaying union insignia at work, which therefore infringed on their rights to engage in “protected concerted activity” under the National Labor Relations Act.

Balancing the company’s and employees’ competing interests, the ALJ found that the hat policy violated the employees’ rights because it “forbids or prohibits employees from displaying union logos, or for that matter other protected messages, on their hats, if they chose to wear hats.”  The company was unable to demonstrate “special circumstances” indicating that a hat with a company logo was any safer, that a hat with a non-company logo would harm customer relations, or that there were – in fact – actual gang concerns.   The World Color decision suggests that employees cannot easily be precluded from engaging in “protected concerted activity” – whether in dress code policies or through social media posts – unless the company can point to a specific protectable interest that trumps the employees’ interests.

The second noteworthy NLRB case this summer also involved a company’s logo, but this time through a policy banning the use of pictures or videos made in the workplace.  On July 18, 2013, the NLRB released an advice memorandum that addressed social media guidelines promulgated by grocer Giant Food.  Its policy prohibited, among other things, employees from using the company’s “logo, trademark, or graphics, which are proprietary to the Company” and also prohibited employees from taking “photographs or video of the company’s premises, processes, operations, or products” without prior written approval. 

With regard to the use of logos, the NLRB found:

“Employees would reasonably understand the rule to prohibit the use of the Employer’s logo or trademark in their online Section 7 communications, which could include electronic leaflets, cartoons, or even photos of picket signs containing the Employer’s logo. . . .  [The company’s] interests are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions.”

And, with regard to picture taking:

“We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities.”

Perhaps some lesser, more narrowly-tailored form of these rules would’ve been acceptable.  It may have been the overbreadth that hurt this employer.

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

As you know from keeping abreast of employment law developments, so much is a balancing act between your company’s interests and those of your employees.  Social media has increasingly blurred the lines because employees are more likely these days to express themselves collectively through social media, and to use social media to aid that expression.   Are we using smart phones more as phones, or more as cameras to capture the moment in the workplace?  Your company must engage in the balancing act, carefully, before doing something about it.

Michael Schmidt

Michael Schmidt

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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Post Summer Part 3 of 5 – Passive Recipient or Active Trickery?

Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law.   In Part 3 today:  If an employee’s Facebook post can reasonably support an adverse job action, does it matter how the employer acquired the post?  

Two interesting cases were decided this summer, both of which highlight different ends of the spectrum when it comes to prohibited acts under the federal Electronic Communications Privacy Act (“ECPA”).   As its name suggests, the ECPA was passed in 1986 in order to protect the privacy of certain electronic communications.  Title II of the ECPA contains the Stored Communications Act (“SCA”), which prohibits certain access to electronic communications that are deemed to be in “storage”.

Ehling v. Monmouth-Ocean Hospital – August 20, 2013

In one case out of the federal court in the District of New Jersey, we find that an employer does not get in trouble when it acts on a Facebook post that was given to management by a “friend” of the employee who made the post.  The court began the decision with the understatement of the year:  “Facebook is a widely-used social-networking website.”   Really?   The plaintiff employee posted a statement to her Facebook wall (her privacy settings limited access to her wall to only her Facebook friends) that resulted in her being temporarily suspended with pay, and receiving a memo stating that management considered the post to be a “deliberate disregard for patient safety.”   The post had been sent, unsolicited, to management.

The NLRB found that the suspension did not violate any “protected concerted activity” rights, which then lead the employee to sue in court to claim that the employer “violated the SCA by improperly accessing her Facebook wall post[.]”   The court initially found that non-public Facebook wall posts are covered by the SCA when the Facebook user limits her privacy settings.  However, in this case, the court found that the “authorized user exception” applied as a full defense because the individual who showed the post to management was an intended/authorized viewer of the post (i.e., one of the employee’s Facebook friends) and was not coerced by management into doing it.  Thus, management was only a passive recipient of the post upon which the company relied for the suspension.

In Re: Trapp – July 11, 2013

Two months earlier, a materially different set of facts resulted in a very different outcome, this time in the context of an arbitration between a union employee and the U.S. Department of Homeland Security.   Mr. Trapp worked as a border control agent in Arizona, and maintained a Facebook account with settings always on “private”.  A supervisory agent heard from another individual that Trapp may have been posting inappropriate comments, and, consequently, the supervisor created a Facebook account under the name of “Layla Shine” and sent a friend request to Trapp (at some point I’m assuming you’re getting the irony of the claimant’s name “Trapp”).

Trapp testified that the friend request was accompanied by a picture of a female, whom he thought was someone he had met in the past.  When the friend request was accepted, the supervisor copied certain posts, which were then relied upon by the agency to support an adverse charge against Trapp.   The arbitrator found that “private” Facebook posts are entitled to the protection of the SCA, and that no statutory exception or defense applied.   Specifically, the supervisory agent was found to have violated SCA by violating Facebook’s terms of use when creating a fake account and making a friend request under a false name.

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

Issues involving the SCA go to the heart of your company’s ability to access, monitor, and act on social media posts by your employees.  However, as these two decisions re-affirm, how you obtain the information you intend to rely on is just as critical as what you obtain and what you do with the information that you’ve obtained.   It is one thing to take action based on social media posts that were innocently brought to your attention.   It is quite another thing to take affirmative steps to surreptitiously get the private posts.

Michael Schmidt

Michael Schmidt

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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The NLRB – More Rapid Fire From An Unauthorized Weapon?

What a quagmire we find ourselves in.   Actually, that the NLRB finds itself in.  Although continuing to issue rulings and advice memoranda in a sort of free- and unfettered-looking way, the question of the NLRB’s authority to have issued everything since January 2012 is now beneath the gavels of the Justices of the Supreme Court.   The argument is that President Obama had made illegal recess appointments to the NLRB, and, without the proper quorum, no lawful action could have been taken by the NLRB since then.

The Supreme Court agreed to take up the issue in the Fall, and just yesterday a large corporation in New York filed papers with the Supreme Court to essentially stop the NLRB from harassing the company on various union-election issues.    Yet, the NLRB continues to chug along and do its thing, having recently taken action on three issues affecting the workplace and social media.  Might as well stay up to date:

1.         Can employees be prevented from discussing an internal complaint?

“No”, the NLRB continues to say.   It recently issued an Advice Memorandum to provide further guidance on the so-called “confidentiality rule”.   In that Memorandum, the NLRB re-affirmed that an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.”  To be lawful, the company “must show more than a generalized concern with protecting the integrity of its investigation”, and instead must establish that need “in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification.”

2.         Can employees be prevented from disclosing “confidential” information?

“Depends what you mean by ‘confidential’”, the NLRB continues to say.  Last month, the NLRB affirmed a ruling of an ALJ that Quicken Loans violated the law.  Although acknowledging that “[t]he line between lawful and unlawful restrictions is very thin and often difficult to discern[,]” the company supposedly violated the law by: (1) including within its definition of “proprietary/confidential information” such things as non-public information about personnel, and employee phone numbers and addresses; and (2) maintaining a policy stating that employees may not, among other things, “publicly criticize, ridicule, disparage or defame” the company.

3.         Can employees be prevented from doing a lot of e-mail?

“Not if you’re singling out protected employees”, says the NLRB.   Also last month, the NLRB affirmed another ALJ ruling that found certain conduct by the Weyerhaeuser Company to be unlawful.  Although the company’s limited policy prohibiting employee use of electronic media for other than business purposes, with some limited personal activities, lawful, the NLRB decided that company officials violated the law by warning union employees (more so than non-union employees) that they were engaging in an “unacceptable volume” of e-mails during work time.

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

What to do, what to do?   It still seems that the NLRB is grossly overreaching in many areas, and we may now start to see many of those decisions start to come unraveled by those in the judicial branch.   The NLRB now has to answer to the Supreme Court, and we are left to wait until the Court’s next term for some definitive answer as to which, if any, of the NLRB decisions from the past couple of years your company truly needs to respect.

So what does your company do in the meantime?  Do you assume the NLRB’s recent decisions and guidance will have no force and effect, or do you make an effort to have your policies and practices comply?

Michael Schmidt

Michael Schmidt

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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