You know that nostalgia that brings talk show hosts to often celebrate certain milestones by bringing back a guest from their inaugural show?   That’s sort of how I feel today by bringing back the subject of my very first social media blog post back on August 3, 2010 – Shirley Sherrod.

You may remember the plight of Shirley Sherrod last summer, when she was forced to resign after a blogger posted limited excerpts of a speech she had previously given to the NAACP.   Those excerpts depicted her as a racist, some agued, although once the full video was reviewed, it became clear, Sherrod argued, that what she had been describing to the NAACP was, in fact, reflective instead of an anti-racist stance and an example of one who moved beyond race when it came to helping someone in need.

Welcome back Ms. Sherrod.   The former Georgia Director of Rural Development for the U.S. Department of Agriculture has just filed a defamation lawsuit against that blogger (conservative writer, Andrew Breitbart) in the Superior Court for the District of Columbia.    Sherrod claims that, by posting an alleged doctored video, Breitbart acted with intentional malice and got her fired from her job last summer.   The news wires have Sherrod stating that her lawsuit is not about politics or race, and not even about free press, but the speed with which “distorted truth” can damage one’s name and reputation in today’s social media environment.  

For his part, Breitbart has denied Sherrod’s allegations, and vows to vigorously defend what he appears to claim is a baseless and politically-motivated attack on his right to free speech.    Like other pending cases we have noted, we will continue to update Ms. Sherrod’s lawsuit as developments occur.

Employer Take Away:   What should you as an employer take away from this development?  Shirley Sherrod is back on center stage with her blog-based lawsuit in the nation’s capital.   The manner in which the court addresses unique aspects of this case specific to social media (for example, the mass audience and speed of publication attendant to social media) will be interesting to watch, though Sherrod’s allegations at a minimum re-emphasize that social media is simply another forum out of which traditional claims such as defamation can arise.   Your company should understand, and ensure that employees understand, that the law and the company’s policies apply equally to conduct and statements through social media.

In addition, we all know that employees are making statements of all kinds on blogs and social networking sites.  They often do so with the mindset that there is a certain informality associated with social media posts, more so than there might be in a more formal letter or memorandum they would otherwise pen.   You should make sure your policies and employee training make clear the obligations one has when communicating through social media, so that your company can avoid potential exposure to a defamation lawsuit brought by a third party.

Just today, the United States Supreme Court issued a unanimous decision in the long-awaited “cat’s paw” case of Staub v. Proctor Hospital.    The decision will likely broaden the permissible theories under which a current or former employee might bring a discrimination lawsuit against a company, yet also serves as another cautionary tale even for those who use social media for employment-related decisions.

The “cat’s paw” term comes from a fable in which a monkey tricked a cat into taking chestnuts from another’s fire for the monkey’s own enjoyment.   In other words, a situation where one is influenced to do the wrongful dirty work of another.   In the context of discrimination claims, the term “cat’s paw” is, thus, used to refer to a situation where the decision maker may not have any discriminatory animus against the employee, but was so influenced by another supervisor who did have some discriminatory animus so as to infect the ultimate decision.

In Staub, the plaintiff was a member of the Army Reserve, and the record reflected that his immediate supervisor, and that supervisor’s immediate supervisor, harbored hostility toward the plaintiff’s military service.  After receiving some disciplinary warnings relating to plaintiff’s performance, the company’s Vice President of Human Resources made the decision to terminate plaintiff’s employment.   Plaintiff filed suit alleging that, even though the Vice President may not have been motivated by unlawful animus, the actions and animus of plaintiff’s supervisors influenced the Vice President’s termination decision (i.e., the “Cat’s Paw”).

After trial, a jury found in favor of the plaintiff, but the court of appeals reversed that verdict.   In today’s decision, the Supreme Court reversed that ruling on appeal, holding that unlawful discrimination can be found upon evidence that a supervisor performed an act motivated by unlawful animus that was intended by that supervisor to cause a subsequent adverse employment decision, even when the decision is made by someone else without such animus.

Employer Take Away:   What should you as an employer take away from this development?   And what does this have to do with social media?    There will undoubtedly be much more analysis of today’s Supreme Court decision in the coming days, including possible limitations of the Court’s holding, and the likely applicability of the holding to other types of discrimination claims.  

In the meantime, this case should serve to remind you that your company may no longer be completely insulated from potential liability just because a decision maker did not have any discriminatory animus against the subject of the adverse action.   Many companies continue to use social media for various employment-related decisions, and it is often the case that information obtained by the one searching the social media sites becomes known by the one making the ultimate employment decision.  Today’s Supreme Court ruling suggests that, when it comes to the decision making process, it is now more critical than ever that the decisions and decision makers are effectively sterilized from any potentially unlawful motivations developed by those who are tasked with searching social media sites and who may end up with more information than they perhaps wanted.

On January 25^th, I posted an update on the NLRB’s Facebook firing case, which followed my prior November 4, 2010 post describing the underlying complaint.   This week, a final update, as that case has now been settled.

You will remember that a former employee of American Medical Response of Connecticut, Inc. claimed that she was illegally fired and denied union representation after posting negative comments about her supervisor on her Facebook page.   This has been a closely-watched case in social media circles and beyond, with the National Labor Relations Board (“Board”) taking the position that the employee was fired for engaging in “concerted activities” in violation of the National Labor Relations Act. 

Late this past Monday (one day before the scheduled hearing), the parties fully settled the case.   From the Board’s perspective, the company agreed to revise what were considered to be “overly broad rules” in its employee handbook about how employees could and could not communicate with co-workers about workplace issues and concerns, and further agreed that it would not in the future discipline employees because of union representation requests.   The February 7, 2011 press release issued by the Board’s Office of the General Counsel stated in part:

“Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

“The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

“The National Labor Relations Board is an independent federal agency vested with the authority to safeguard employees’ rights to organize and to determine whether to have a union as their collective bargaining representative, and to prevent and remedy unfair labor practices committed by private sector employers and unions.”

With respect to the resolution with the former employee over her discharge, that was the subject of a private agreement between the company and the individual, and, I suspect, that some monetary payment was made to avoid further litigation.  The terms of that part of the settlement, however, were not disclosed.

Employer Take Away:   What should you as an employer take away from this development?     The fact that this NLRB case has settled only means that there will not be a determination on the merits in this case.   As the law continues to develop, there is no doubt that the intersection of social media and employment-related decisions will be crossed again soon in court or an administrative agency.    In the meantime, these developments should continue to serve as a warning to you: (1) to be careful and deliberate when it comes to making employment decisions based on social media, with strategic consideration given to, among other things, how you want to use social media, and who in the company should be doing so; and (2) to create appropriate social media policies (and review existing ones) to make sure they don’t violate laws such as the National Labor Relations Act.

Love is a many splendored thing.  All you need is love.   The love you take is equal to the love you make.    Unless you are suing rocker Courtney Love for defamation.  

A lawsuit involving Courtney Love and designer Dawn Simorangkir had promised to be one of the first high-profile defamation cases based on social media posts.   The case was filed when Love went on a Twitter tirade shortly after the designer demanded payment of thousands of dollars for designed clothing, telling her more than 40,000 followers that Simorangkir is a “drug-pushing prostitute” who was said to have had a “history of assault and battery who lost custody of her own child.”   Simorangkir claimed in her lawsuit that Love’s Twitter statements destroyed her fashion career to the tune of millions of dollars.  

From a social media standpoint, the case raised a very interesting question:  Do words that may be defamatory in one context become less defamatory when uttered through a social networking site?   Simorangkir’s attorney argued that defamatory words are defamatory words, regardless of the forum in which they are spoken.   And, in fact, the argument would further be that social media provides an even greater audience to whom the allegedly defamatory statements have been published.

On the other hand, Love’s attorney argued essentially that statements posted on Twitter and other social media sites must be considered under a lesser standard, given that the average Twitter follower would understand that the context of a celebrity’s tweets tends to reflect mere jest and informal opinions, rather than intended facts about the subject.  

Love’s argument seemingly has some appeal to it, as courts addressing traditional defamation claims (i.e., not involving social media) typically do look at the context in which the alleged defamatory statements are made.  In other words, courts have looked at, among other things, whether the “broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.”   To the extent Love can prove that the “average” twitter follower, or the average social media user in general, views these types of Twitter posts as mere harmless musings, one may conclude that social media provides greater latitude than more common media publications for purposes of potential liability.

We might have to wait a little longer for an answer to this question.   The Los Angeles trial was supposed to start on January 18, 2011, although both sides’ attorneys are in the process of negotiating a settlement.   We will continue to monitor the developments in this case, and continue to ask: “Where’s the Love?”

Employer Take Away:   What should you as an employer take away from this development?     Your employees use social media constantly, often making statements to co-workers and even third-parties.  Until the law is further developed in this area, it remains unsettled whether courts and juries will hold those making statements through social media to the same standards as those making alleged defamatory statements through more traditional means.    As employers, you should continue to be sensitive to the potential uses, and abuses, of social media by employees.   It bears repeating that you should create and maintain appropriate social media policies to reduce the likelihood of liability for the statements of your employees, and also train your employees on the appropriate use of social media.

On January 20, 2011, a federal class action lawsuit was filed against MySpace in the United States District Court for the Eastern District of New York.    If successful, this new lawsuit could have dramatic implications for social networking sites and their users.   Either way, it provides another opportunity to make a couple of privacy-related points for employers.

The MySpace lawsuit was filed on behalf of all former and current users of MySpace, who seek damages for the alleged improper and voluntary disclosure of personal and private information and data in response to foreign court search warrants without the knowledge or authorization of the MySpace users.   The class alleges that search warrants issued by state judges for certain information have no force and effect when they are issued to MySpace’s California headquarters from other states, but that MySpace nevertheless provided responsive information and data voluntarily.

Among the information produced were credit card information, address and telephone numbers, private message content, IP addresses, and relationship information.    The class alleges that MySpace’s voluntary disclosure in the face of unenforceable warrants violated the federal Electronic Communications Privacy Act, the federal Stored Communications Act, New York’s General Business Law, and MySpace’s own terms of use and privacy policies.    MySpace has not yet responded to the Complaint, however we will continue to follow this case as it proceeds.

Employer Take Away:   What should you as an employer take away from this development?     To the extent the Court ultimately issues a decision on any of the merits of this case, there may be significant implications for this apparent tension between disclosure obligations of social networking sites on the one hand, and the privacy of their users on the other.    This case also raises a couple of issues that should be considered by employers as well.

The right to privacy is continuing to emerge as a significant social media and employment law issue.   With regard to your employees, many states (including New York) now have their own statutes imposing obligations on employers for the handling, disclosure and disposal of private employee information and data, such as social security numbers and medical-related information.    You should also create and maintain the appropriate policies and practices to ensure that sensitive, private information belonging to your customers and clients is not improperly disclosed by your employees.    The use of social media by your employees, whether blogging, tweeting, or other social networking, increases the risk that such information can be disclosed to third parties, even inadvertently.

Today is the scheduled hearing before an Administrative Law Judge at the National Labor Relations Board (“Board”) on the issue of whether American Medical Response of Connecticut Inc. violated the National Labor Relations Act (“NLRA”) by firing an employee after she criticized her boss on Facebook.    When it is ultimately issued, the decision may have a significant impact on social media and employment law.

Back on November 4, 2010, I posted about the complaint filed by the Board, which alleged that the company’s employee was unlawfully terminated for engaging in protected concerted activities with her co-workers.   You may remember that the employee went home from work and posted, among other things, how her boss was a “scumbag as usual,” and other comments about her working conditions.    Since the NLRA protects covered employees who engage in “concerted activities” for their “mutual aid or protection”, the Board alleged that the employee’s Facebook postings constituted such protected activity.

The case will be heard today, and a decision is expected to be issued shortly.

Employer Take Away:   What should you as an employer take away from this development?     Today’s hearing may be the start of a significant decision making process by the Board.   Or, it may not.    It depends on the wording of the decision that is ultimately issued, and how far reaching the Administrative Law Judge wants to be.

On the one hand, this may be viewed as merely a “normal” termination case.  Thus, regardless of the forum used to engage in concerted activity, the decision may simply find that the employee was or was not terminated due to activity protected under the NLRA.  On the other hand, the decision may serve as the first time that one of the oldest employment laws is applied to the new social media age, highlighting the point that employers should be concerned not just with what new claims social media may spawn, but with the application of social media to traditional claims as well.    In addition, the decision may contain findings regarding the propriety of the employer’s social media policy, and whether it violates the NLRA on its face by infringing on protected employee communications.

We will continue to follow this Board proceeding and post future updates.