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.

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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Tagged with: bio, Jimmy Graham, New Orleans Saints, New York Employment Law, profile", Social Media And Employment Law, Social Media Blog
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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.

Michael Schmidt

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The Truth About As*holes

Posted on June 11, 2014 by Michael Schmidt — No Comments ↓

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.”

Really?

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.

Michael Schmidt

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Tagged with: Facebook Firing, Misconduct, National Labor Relations Board, New York Employment Law, NLRB, Protected Concerted Activity, Social Media And Employment Law, Social Media Blog
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Data Breach Laws Continue to Come

Posted on June 9, 2014 by Michael Schmidt — No Comments ↓

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?

Michael Schmidt

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Tagged with: Cyber Insurance, Cyber Security, Data Breach, Florida Information Protection Act, New York Employment Law, Policy, Social Media And Employment Law, Social Media Blog, Workplace
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Living With Others Thinking You’re Fu*king Crazy

Posted on May 8, 2014 by Michael Schmidt — No Comments ↓

“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.

Michael Schmidt

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Tagged with: Defamation, Policies, Social Media And Employment Law, Social Media Blog, Twitter
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Goodbye Precedent, Hello Forced Speech?

Posted on May 5, 2014 by Michael Schmidt — No Comments ↓

The NLRB continues to push for a share of the employment law spotlight. It also continues to act in a way that shows why its “precedent” is truly only “precedent” when the political winds don’t change.

In 2007, during a Republican administration in Washington, the NLRB determined that “employees have no statutory right to use the employer’s e-mail system for Section 7 purposes.” You’ll remember that “Section 7 purposes” means your employees’ right to engage in “protected concerted activity.” Activities like collectively discussing gripes about an employer’s compensation system or hazardous working conditions, or attempts by employees to unionize an otherwise non-union facility.

Technology, and social media in particular, allows employees to engage in protected concerted activity much easier and more quickly. But it is one thing to allow employees to collectively act on their own time when they’re not supposed to be working. Do companies have to open up their company-owned communications systems to make it easier for employees to engage in those activities, especially when such activities are antithetical to the company’s interests? In 2007, the NLRB said “no.”

But here we go again with the now-Democratic controlled Board. In California, an Administrative Law Judge recently applied the NLRB’s 2007 decision to dismiss an allegation that the employer committed an unfair labor practice by prohibiting the use of company e-mail and equipment for anything but business purposes. However, the NLRB’s General Counsel immediately stepped in and filed exceptions to that ruling, and urged the NLRB to overrule its 2007 “precedent” and instead adopt a new rule requiringcompanies to treat non-business concerted activity the same as it treats business activity. That is, if a company provides a system for employees to communicate over e-mail for business purposes, it must similarly allow employees to communicate over the company’s e-mail system for such non-business purposes as attempting to unionize.

Last week (May 1^st), the NLRB invited interested individuals and organizations to file briefs on the issue, and offer the Board reasons why its 2007 “precedent” should be overruled or remain in place. Briefs must be filed with the NLRB in Washington, DC by June 6, 2014. What say you?

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

Interestingly, the NLRB’s other, recent attempt to force employers to act as conduits for employees to engage in certain activities was met with fierce opposition, and was ultimately rejected in court. Remember the NLRB’s attempt to force employers to post notices explaining how employees have the right to unionize?

This latest initiative to overrule a 2007 pro-employer decision seems like another attempt to effectively impose forced speech on employers. It might not be forcing substantive content, but at a minimum it’s forcing employers to act as the conduit to getting certain speech out. The bigger question, though, when it comes to the possibility of the NLRB doing an about-face on its 2007 decision: How can companies rely on precedent to create and implement policies and practices, if precedent depends on who’s President?

Michael Schmidt

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Tagged with: E-Mail, NLRB, Precedent, Protected Concerted Activity, Section 7, Social Media And Employment Law, Social Media Blog
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Another Federal Player in the Social Media Sandbox

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

There seems to be room in the sandbox for lots of people to play.

Recent recesses have seen the NLRB dominate the discourse over the do’s and don’ts when it comes to social media and employment law. But another federal body wants to come and play too.

The EEOC, responsible for enforcing all Title VII obligations, recently held an open meeting to discuss how the use of social media by employers, employees, and applicants may implicate equal employment opportunity laws. According to an EEOC press release, Chair Jacqueline Berrien noted that “[t]he increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. . . . This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Among the highlights gleaned from the open meeting:

77% of companies reported in a 2013 survey that they used social networking sites to recruit candidates. While there may be salutary purposes in doing so, inappropriate uses of the information obtained could lead to discriminatory intent and impact against protected classes.
Laws prohibiting employers from demanding social media account passwords continue to be a hot issue.
Harassment and discrimination through social media – even away from the work site – is still problematic for employers.
Potential liability exists for companies when their employees engage in inappropriate social media activity using employer-owned devices and accounts.
There continue to be emerging rules on the discoverability of private social media communications in employment lawsuits.

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

There will be public comments submitted to the EEOC in response to its open forum, and more than likely some guidance will eventually be issued by the EEOC to help employers navigate many of these issues. Until then, your company would be wise to continue to stay ahead of the curve in how it implements its employment policies and practices, and not end up in the corner crying because the federal government threw sand in its eyes.

Michael Schmidt

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Tagged with: EEOC, New York Employment Law, Open Meeting, Social Media And Employment Law, Social Media Blog, Social Media Recruitment, Title VII
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Yes, Disclosures On Social Media Are Still Disclosures

Posted on March 24, 2014 by Michael Schmidt — No Comments ↓

You can’t make this stuff up.

Have you read this one? I can’t blame you if you haven’t. Between the serious and tragic stories dominating the news from Malaysia and Russia, this little employment law nugget snuck into the newsroom. Put simply, baby girl’s typing fingers ultimately cost daddy $80,000.

I’m Getting Some New Money

The former headmaster of a Florida preparatory school had started an age discrimination and retaliation lawsuit against his former employer. The parties settled the lawsuit, and the school paid various sums to its former employee, including an $80,000 payment. The settlement agreement contained a confidentiality provision, which provided that the employee could not disclose the existence or terms of the settlement agreement to anyone “except his attorneys or other professional advisors or spouse.”

I’m Getting A Nice Vacation With My New Money

The former headmaster is also a father, and daddy has a college-age daughter who clearly is not “his attorneys or other professional advisors or spouse.” Yet, the daughter posted the following on Facebook immediately after daddy’s settlement agreement was signed: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. Suck it.”

Woops.

There Goes My New Money

The school notified daddy employee that he had breached the settlement agreement based on his daughter’s Facebook post, and also informed his attorney that the school would pay the attorneys’ fee portion of the settlement but not the payment that had been allocated for daddy employee. So daddy employee filed papers with the court to enforce the settlement agreement’s payment obligation, which resulted in a whole hearing being held in court, and which then resulted in the court determining that daddy employee’s comments to his daughter, and his daughter’s Facebook post, did not constitute a violation of the confidentiality provision.

But the Florida appellate court felt differently, noting at the top of its decision on appeal: “The school maintains Snay is precluded from enforcing the agreement because he violated a material term, the non-disclosure clause, when he disclosed to his daughter that his case against Gulliver was settled and he was happy with the result. We agree with the school[.]” Noting that the Facebook post served to communicate the settlement to the daughter’s 1200 friends, the court ended its decision as it started:

“[B]efore the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

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

I’m going to try something different today, and give some takeaways to both sides; your company, as well as your employees:

1. Employer –> Make sure any settlement agreements have a confidentiality provision, make sure they limit precisely who can learn information about the settlement, and consider even making an express reference to social media.

2. Parent/Employee –> You really need to tell your kids about your settlement?

3. Employer –> Monitor compliance with your settlement agreement, as you are likely giving significant monetary consideration in exchange for, among other things, um, quiet.

4. Parent/Employee –> If the answer to # 2 above is “yes,” tell your kids to keep their mouths shut about mommy’s and daddy’s work, and to go back to using social media for the purpose of their ridiculous selfies.

5. Employer –> Social media impacts everything when it comes to your employees, from hire to fire (and even beyond). Make sure the applicable social media implications and risks are considered and addressed in all of your actions and documents.

Michael Schmidt

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Developing a Corporate Strategy to Address Known Risks

Posted on March 21, 2014 by Michael Schmidt — No Comments ↓

Matt Dunning at BusinessInsurance.com announced some eye-opening news: “Despite its ubiquity in corporate communications and marketing, a startling percentage of companies has no formal strategy for addressing the liability exposures and reputational risks associated with social media, experts say.” So, where would your company fall in that survey?

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

You have read the blogs (like this one) which identify and analyze the significant issues attendant to social media and employment law. You have read and heard about cyber-attacks and data breaches suffered by the likes of Target, Michael’s, and other companies (big and small). Now that you know what the risks are, has your company consulted with the appropriate person to develop a corporate strategy for addressing those risks from insurance, workplace policy, and other risk-management perspectives?

Why not?

Sorry to interrupt you. Have a great weekend.

Michael Schmidt

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Tagged with: Businessinsurance.Com, Cyber, Exposure, Matt Dunning, New York Employment Law, Policy, Reputational, Social Media And Employment Law, Social Media Blog, Strategy
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