Announcing a Job Move on LinkedIn or Facebook – Breach of Contract or Fair Game?

It is always worthwhile to talk about current developments in the area of social media and employment law, and to look back at their contextual import.    Much of the fun, however, lies in playing the forecasting game, and identifying potential trends in the area that may be on the horizon.   One of those trends that I have surmised would be coming relates to the impact of social media on non-compete and non-solicit agreements entered into by your company’s (former) employees.

Here’s the not-so-hypothetical-anymore hypothetical:  Senior employee signs an agreement that prohibits her from soliciting your client’s customers;  employee subsequently leaves your company;  employee updates her social media profiles to indicate to all 17,548 friends and followers that her job status and location have changed; one of your customers (i.e., one of employee’s friends and followers) sees the social media update and decides to bring her business to your former employee’s new company.    Anything wrong with that from a legal standpoint?

The use of social media to regularly post about one’s entire life is nothing new.   Yet, one of the burgeoning uses of social media continues to be for business and professional networking, which unabashedly requires one to maintain the current status of one’s online curriculum vitae.   And there we go again.   Like the employment law worlds of harassment and wage and hour, rules pertaining to the enforceability of non-compete and non-solicit agreements have been in place for years.   Those rules now have to play catch up with the introduction of social media to that world as well.   Not a lot has happened – yet – although courts are going to start addressing this issue with greater frequency.   Two recent cases out of Massachusetts offer a glimpse of where they may be heading.

In KNF&T Staffing, Inc. v. Muller (Superior Court of Massachusetts), a staffing agency sued a competitor and the agency’s former vice president who began working for the competitor.  At issue was a somewhat typical confidentiality and non-compete agreement that prohibited the former employee from engaging in certain post-separation activities.    As is usual in these cases, the staffing agency sought an immediate injunction, though the court found its evidence at the initial stage to be “somewhere between very weak and non-existent.”   The relevant part of the decision is tucked neatly in footnote 5 of the decision, which reads:

“The same reasoning applies to the evidence that Muller currently has a LinkedIn profile disclosing her current employer, title, and contact information, and counting among her “Skills & Expertise” such things as “Internet Recruiting,” “Temporary Staffing,” “Staffing Services,” and “Recruiting.”  There is no more specific mention of any of KNF&T’s “Fields of Placement” than this.  So long as Muller has not and does not, prior to April 12, 2014, solicit or accept business in the Fields of Placement for herself or others (including her new employer), she will not have violated the covenant not to compete.”

The second case of Invidia, LLC v. DiFonzo (Superior Court of Massachusetts) steps out of the footnote and into a more textual description of a similar claim involving a former salon worker who left her employer (the plaintiff) to work at another salon.  Though lengthier, the relevant portion of the decision is equally instructive:

“Four days after Ms. DiFonzo resigned from Invidia, David Paul Salons, her new employer, posted a “public announcement” on Ms. DiFonzo’s Facebook page, noting DiFonzo’s new affiliation with David Paul. . . .  In the comment section below that post, [a client of Invidia] posted a comment which said, “See you tomorrow Maren [DiFonzo]!”  [The client] then canceled her appointment at Invidia for the next day.  But it does not constitute “solicitation” of Invidia’s customers to post a notice on Ms. DiFonzo’s Facebook page that Ms. DiFonzo is joining David Paul Salons.  It would be a very different matter if Ms. DiFonzo had contacted [the client] to tell her that she was moving to David Paul Salons, but [there] is no evidence of any such contact.

“Invidia next points out that Ms. DiFonzo has become facebook “friends” with at least eight clients of Invidia.  Again, one can be Facebook friends with others without soliciting those friends to change hair salons, and Invidia has presented no evidence of any communications, through Facebook or otherwise, in which Ms. DiFonzo has suggested to these Facebook friends that they should take their business to her chair at David Pail Salons.”

Both cases:   While the litigation may still continue, both requests for immediate injunctive relief were denied based on a lack of evidence that the restrictive covenants had been violated.

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

It is hard to form any real conclusions just yet, but these two cases suggest that a non-compete and non-solicit agreement may not be violated simply by the mere posting of your former employee’s new job information and location.  Rather, in the eyes of at least these two judges, a more targeted and less generalized communication must be shown between the former employee and the third party to sustain a claim.

Will future cases be decided the same way?  Are there effective strategies to still avoid certain employee post-separation posts on social media?   Stay tuned….

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To Be Disrespectful Or Not To Be – That Is The Question

We’ve spent a lot of time talking about how the NLRB continues to have problems with policies and practices that prohibit employees from engaging in vague, undefined behavior that could constitute “protected concerted activity” through social media.   One example is when a company prohibits an employee from (or terminates the employee because of) engaging in acts that are deemed “disrespectful”.   Much like “disparaging” or “inappropriate”.  But a federal court decision issued this past Thursday demonstrates that the NLRB’s position is only one, and certainly not the only, consideration.

In Zayas v. Rockford Memorial Hospital, an ultrasound technician alleged that her hospital employer discriminated against her under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act when it fired her in April 2011.  The hospital argued that it terminated her because she sent her direct supervisor “a series of disrespectful emails, despite her supervisor’s warnings.”  After informal and then formal warnings didn’t stop the offending e-mails, she was fired.  The e-mails were deemed by management to be “negative, unprofessional and disrespectful towards her managers and peers.”  The employee, on the other hand, claimed that the e-mail rationale was a pretext for discriminatory animus based on her national origin and age.

The 7th Circuit Court of Appeals agreed that the initial federal court properly granted summary judgment to the hospital and dismissed the case before it ever went to trial.  Notably, the court found that it was not its job to decide whether the employee’s e-mails were truly egregious or disrespectful, so long as there was evidence that the hospital truly believed they were.  In the end, the court ruled:  “Despite Zaya’s many claims, there is insufficient evidence to find that her termination was based on anything but the many disrespectful emails she sent to [her supervisor].”

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

There are two points worth highlighting:

1.         Your company can still defend claims of discrimination if you can show a well-documented, reasonable business reason for the employment decision at issue.  Score one for those still longing for the days when the law allowed the termination of an at-will employee because the company felt the employee was being disrespectful to a supervisor.

2.         There still are a myriad of laws out there that potentially govern employer-employee relations.  So why, you might ask, was this employer allowed to act based on a vague, subjective notion of what is “disrespectful” when so much blog space has been devoted to eliminating a word like “disrespectful” from workplace policies to comport with NLRB guidance?  The decision in the Zayas case doesn’t mention the NLRB or “protected concerted activity”, but my answer to that question is that (a) this case was brought under Title VII, and was not before the NLRB, and (b) this employee’s e-mail activity appears to have been neither “concerted” nor “protected” under the National Labor Relations Act.   Title VII and the National Labor Relations Act are two different statutory schemes, and both (among others) should be considered when your company decides to make some employment-related decision.

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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Seahawks or Broncos – Do Employers Care?

I certainly don’t care that much.  My team ended its year early, again.  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 the game is in cold New York has piqued the interest of many (though, frankly, the winter mess seems to be more newsworthy down South this January).  There are also some who are waiting to forecast how the financial markets will do this year based on the reported historical trends that have occurred depending on whether the Superbowl is won by the NFC or AFC.   Still, from my perspective, there are social media and employment law points to be made.   So here goes.

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 Colorado teams obviously have tremendous interest in this weekend’s game, but historical ratings show that the rest of the world cares too for financial reasons.   Much time will be spent this week 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 time 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, 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 this Sunday’s game.  So I guess 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 3 working days left until the big sports buzz is over, after all.   That is, until pitchers and catchers report in 3 weeks.

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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Once In Violation, Always In Violation

I loved the holiday season.  But if I could look back and point to one part of the 2013 holidays that reallybothered me, it is this:  the incessant Michael Bolton appearances in those Honda commercials.  Every two seconds, every channel.   Michael Bolton rising from a piano at a Honda dealership, or popping up in the backseat of a new Honda.  Like Frankie Valli in that fantasy ice cream shop scene in Grease.    Market studies somewhere have really shown that I’m more likely to buy a new Honda because Michael Bolton is there?  This is where Michael Bolton’s career is?

I digress.  Honda has somewhat bigger problems.  At least one dealer does, as the NLRB began 2014 where it left off in its crusade last year against workplace policies.  Only this time, the NLRB offered a double whammy, by adding to the list of current unlawful policies and finding that an employer violated the law even though the unlawful policies had already been rescinded months before.

In Boch Imports, Inc. d/b/a Boch Honda, an Administrative Law Judge for the NLRB determined that the company’s dress code policy violated the law when it prohibited employees who have contact with the public from wearing “pins, insignias, or other message clothing.”

But the Judge also addressed various social media policies that the employer got rid of in May 2013, including the types of social media policies we’ve addressed in this blog:  prohibitions on being discourteous, disclosing information about other employees, engaging in activities that would have a negative impact on the business, using company logos for any reason, among others.  In fact, the employer revised its handbook in May 2013, and distributed a new handbook correcting certain offending provisions.   Seems to me the employer acted reasonably, particularly when you take into account that the law in this area has been changing with the changing winds almost on a daily basis.

Nevertheless, the Judge ruled:

“Although I originally agreed with counsel for the [employer] that it would not effectuate the policies of the Act to spend time on these allegations which had already been remedied, a careful examination of the Board’s cases convinces me that my initial impression was incorrect.”

So even though the employer no longer had or implemented the allegedly unlawful social media policies (and, therefore, no need for a remedy on that point), the Judge nevertheless found as a formal matter that the employer violated the law, a finding that brings its own consequences.

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

1.         Understand that just because the ball dropped on another year does not mean that the NLRB does not intend to continue its crusade on social media practices and policies.

2.         It is apparently not enough to be diligent in fixing and remedying an apparent prior violation.   Your company must be diligent in making sure your policies and practices don’t violate the law in the first instance.

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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Happy New Year – Now Don’t Let The Ball Drop

Ryan Seacrest paid homage again to Dick Clark.  The latest musical crazes performed live from hot spots around the globe.  Miley Cyrus thinks we’re still interested (for those who were at some point).  They all helped us and our family and friends escort out a very fast 2013 last Tuesday night.  Then what?

The same conversations each 12:01 am on January 1st.  People talking weight loss for the new year, being nicer to strangers, exercising with greater frequency.   I spent Tuesday night watching the Waterford Crystal ball drop thinking two things:  First, I’ll deal with weight loss in 2015.  But second, what can I do to improve global awareness of social media and employment law issues?  So to begin that (latter) effort, I offer the following 4 resolutions for your company to consider as we begin 2014:

1.         Resolve that 2014 is not the year that your company gets blindsided by a cyber/data breach.    Target isn’t the first, and won’t be the last, and, more importantly, it’s not just the mammoth companies that run the risk of having their systems hacked.   Start the new year by determining what policies, protocols, insurance strategies, and practices you should adopt now in order to minimize the risk of exposure to your employees and other third parties.   Focus on what you should be doing to prevent a cybersecurity issue, and on what you need to do if one occurs.

2.         Resolve that 2014 is not the year that your company gets hit with the next wave of wage and hour class actions.  Outdated notions of what your obligations are, or even unintentional ignorance of how employee use of technology affects wage and hour issues, can expose your company (and perhaps you personally) to millions of dollars of liability.   Start the new year by determining what you need to do, and what you can force employees to do, to minimize the likelihood that social media and technology can wreak havoc with how you keep track of employee work time, and how you pay your employees.

3.         Resolve that 2014 is the year that your company most effectively protects its valuable trade secrets and proprietary information from even inadvertent disclosures through social media and technology.   Determine the best way to do so.

4.         Resolve that 2014 is the year that you understand why the most popular social media and technology landing spots for your employees may be different than they were in 2013, and how you should appropriately manage what employees can and cannot do, and how your company can and cannot react.

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

Make thinking about these issues a priority for 2014.  Develop a plan to address these issues with your employees.  Address these issues with your employees.   In that order.  For the sake of your company, don’t drop the ball this early this year.

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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It’s The Relationships, Stupid – 2013 Wrap Up (Part 2 of 2)

It is this 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 a malaise today, 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 2012:   “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.  Indeed, we have continued to discuss and dissect many instances in 2013 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 one week from today.

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, 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’ve often said that the definition of a “plaintiff” 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 takeaway from 2013?   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 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 2014.   I wish you and your families a very healthy, happy and prosperous New Year.

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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Lessons From Naked Pictures

Sometimes you can find great employment law lessons in the craziest places and lawsuits, and even non-employment law lawsuits.   This month, a decision was issued by a Family Court Judge in Brooklyn, New York that, while an apparent nightmare for the family involved, could nevertheless breed some worthwhile takeaways for you and your company as we near the year end.

In In re: CW v. CYR, NN-026283-6/13 (Sup. Ct., Kings Co. 12/2/13), the Administration for Children’s Services (“ACS”) filed a Family Court Act application seeking the emergency removal of four children from the custody of their parents.   So far, nothing to do with social media or employment law, right?   Here’s the social media part:  According to the decision, the father had lost his Blackberry a few months earlier, and the person who found the device “also found photographs of naked children and turned the phone into the police.”  

The photos included one of a child wearing nothing but boots, one of a child “asleep on her stomach with her buttocks visible”, one of a “full frontal nude picture of a child covered almost completely in soap bubbles”, and one showing a child “with her legs spread and her vagina visible.”    According to the parents, the pictures were taken with no bad motives to simply record various family-related activities and strange poses of the parents’ children and cousins.   However, charges were brought against the parents, and the “issue before the court was whether or not the [parents] had photographs that constituted child pornography indicating they sexually abused their children.”

A hearing was held, at which there was a lot of testimony from ACS, the parents, and various other fact and expert/medical witnesses.   Fortunately for the parents, the court ordered the return of their children, finding that the photographs and videos presented did not meet the various definitions of unlawful conduct under the New York Penal Law.    The judge added:  “Any parent knows that you cannot raise a child without making a mistake in judgment from time to time.  And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family lie.  Ms. R learned a difficult lesson.”

Employer Take Away:   What should you as an employer take away from this development?  Here’s the employment law part:

            1.         A picture, or an act, might be viewed very differently by two different, yet reasonable, people.  As we are now in the thrusts of holiday party season, employees (particularly with the aid of alcohol) feel free to use social media to send jokes and pictures of all types and content to recipients they think will enjoy it.   Not always.   What one might view as funny or appropriate, may not be viewed that way by the first recipient.   Or, the ultimate recipient of continuous clicks and sends.   Do your company’s harassment and discrimination policies – and the appropriate training that should take place – sufficiently address these issues?

            2.         Remember, this case started with a lost Blackberry and the finder looking at the content of the Blackberry (likely innocently to try to determine the owner’s identity).   Was there no password or lock feature?   One can certainly see how easy it would be for someone to find a lost Blackberry or other smartphone and be in a position to view your company’s trade secrets or other company or customer proprietary information.   Does your company have a sufficient electronic devices policy and bring your own device (BYOD) policy, particularly when you allow access to company e-mails and systems on an employee’s mobile device?

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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Double Take – An NLRB Win For Employers?

In prior posts, I summarized the three-step analysis that employers should use before taking adverse action against an employee because of that employee’s social media activity:

            1.         Was the social media activity “concerted”?

            2.         If the activity was “concerted”, was it “protected”?

            3.         If the activity was “protected concerted” activity, did the employee engage in conduct that would otherwise take him or her outside of the protection of the National Labor Relations Act (the “Act”)?

With regard to step number 3, there generally has been a very high threshold for an employer to show that activity that is concerted and protected should, nevertheless, not fall within the protections of the Act.  However, a decision issued by the NLRB this month breathes some life into the notion that that threshold, while high, is not non-existent.

The case of In re: Richmond District Neighborhood Center involved a California non-profit company that operates after-school and summer youth programs.  Complainants worked as teen activity and teen center leaders.  After a staff meeting which was deemed by them to be less than positive, complainants engaged in a (private) Facebook conversation, in which they voiced various concerns about the center’s programs and workplace.   Management got wind of the complaints (not surreptitiously), and immediately advised complainants that they could not continue to work at the program.

Naturally, complainants brought a charge before the NLRB and argued that they were fired for engaging in protected concerted activity.   The NLRB agreed.   A big however, however, in that the NLRB also agreed that the 3rd step in my above analysis trumped the existence of activity that was both concerted and protected.   The NLRB’s Administrative Law Judge ruled:

When an employee is discharged for conduct that is part of the res gestae of protected activities, the question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service. . . .

Callaghan stated that he would have crazy events and not seek permission.  He stated he would play loud music and get artists to place graffiti on the walls.  He stated he would do some “cool shit” and let Respondent figure it out.  Callaghan also stated he would have parties all year and field trips all the time.   Moore stated “when they start loosn kid I aint helpin.”  She stated they would have fun and that she would never be there.  Finally she stated that she would have “clubs” and take the kids.

. . .

Respondent receives grants and other funding from the government and private donors.  It is accountable to the middle schools and high schools that it services.  Respondent believed that the Facebook comments jeopardized the program’s funding and the safety of the youth it serves.  Respondent was concerned that its funding agencies and the parents of its students would see the Facebook remarks.   I find that Respondent could lawfully conclude that the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.

Case dismissed.

 

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

However much this case may currently be a needle in the haystack of NLRB decisions, it nevertheless offers some hope that employers may be able to address legitimate business interests without running afoul of the Act.   Take the three-step analysis seriously, as we now know that the NLRB may be more sympathetic to an employer who points to specific threats to the company’s ability to further its business objectives due to an employee’s posts, rather than an employer who merely alleges vague, broad harm from an employee’s social media activity.  Don’t think you can never take adverse action in the face of inappropriate social media activity, but don’t think that you always can.   Properly analyze the facts in each case, and hopefully you will minimize your exposure.

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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Done With Lady Gaga

Whether it’s on the phone, in my office, or just on the street, people – I mean, hoards of people – have been asking me the same one question:   What’s happening with Lady Gaga?

A few weeks ago, on September 30th, I blogged about a federal lawsuit brought against Stefani Germanotta (aka Lady Gaga) by a former personal assistant, who alleged 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.  The interesting question for this blog was, are you required to account for (and, if so, how do you account for) all work performed by an employee on Blackberries and other smart phones after hours and off premises?  As I mentioned on September 30th, the issues in the case were to be decided by a jury at a trial scheduled to begin on Monday, November 4, 2013.

Here’s the update:   This past Monday, only two weeks before trial, the parties settled the case.    Monetary and other terms have not been disclosed, and the lawsuit has been discontinued “with prejudice”.   Frustrating perhaps for those who wanted some “decision” on the substantive issues by the triers of fact.  But presumably not so frustrating for Gaga, who can go back to doing what she does best outside of the courtroom.  Whatever that is.

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

Yes, there is a takeaway here for you.  These wage and hour cases can be expensive and time consuming, and thought must be given to the nature of the defense your company mounts.    We’ll never know what a jury would have decided here, but does it really matter? Whether Gaga (or your company as a defendant) believed that she was right or acted properly is largely irrelevant to the big picture.   The cost of these lawsuits, the time expended by your company, and the risks attendant to defending your position, are significant.   Even a “win” two years later, may not bring back that lost time and monetary cost.  

So, while you can never really stop someone from filing a lawsuit, your best bet still is to minimize the risk as much as you can.   One way to do that is to self-audit your wage and hour policies and practices before you find yourself in Gaga’s legal predicament.  As they say, an ounce of prevention . . .

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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Follow Me:Add me on XAdd me on LinkedIn

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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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