A Three Course Meal For The New Year

by Cozen O'Connor
Contact

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

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

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

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

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

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

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

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

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

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

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.