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In re Penthouse Executive Club: Can you Strip Away the Confidentiality of Litigation-Related Communications by Posting Them on Facebook?
If you are a plaintiff in a lawsuit, can you discuss the lawsuit with other plaintiffs on Facebook and keep these communications confidential? What if the communications are between you and someone you hope will join the lawsuit but is not yet a party? These questions were front and center before a District Court Judge in New Yorkregarding a class action wage and hour case under the Fair Labor Standards Act (“FLSA”). In re Penthouse Executive Club Compensation Litigation involves allegations by a group of exotic dancers that the Penthouse Executive Club failed to, among other things, properly pay them overtime and their share of tips. As often is the case with FLSA matters, the named plaintiffs converted their lawsuit into a class or collective action. To do so, they obtained from the court the right to issue notice to other similarly situated strippers who were then able to opt… Continue Reading
Public Employees: Anything You “Like” Can and Will Be Used Against You
What does it mean to “like” a Facebook page? As Facebook users know, clicking the “like” button sends a link to your Facebook friends’ newsfeeds, noting which of their friends “liked” the link. The post will also appear on your profile as one of your “Likes and Interests.” While it is possible to add a comment when “liking” a post, it is not necessary. However, public employees in Virginia should be aware that merely “liking” a page, without further comment, may not qualify as speech protected by the First Amendment, even if the page relates to a matter of public concern. Earlier this month, a federal judge granted summary judgment to Sheriff B.J. Roberts of Hampton, Virginia. Sheriff Roberts had terminated six employees for various reasons, including his belief that their actions “hindered the harmony and efficiency of the office.” The terminated employees then filed suit, alleging that they were… Continue Reading
A Picture is Now Worth 800 Million Users
Facebook’s acquisition of the popular photo-sharing app Instagram portends exciting new opportunities for brands. As an example of Instagram’s popularity, since December its user numbers nearly doubled—from 15 million users to 27 million users. Likewise, when Instagram became available on Android, the number of users increased to 30 million, and one million of those users registered within the first 24 hours of availability. So, what does this acquisition mean for brands? First, not all Instagram users are Facebook users and vice versa. Obviously, with Instagram’s 30 million users and Facebook’s 800 million users, their integration provides brands with the opportunity to reach significantly more consumers. Moreover, if Instagram remains independent from Facebook, Instagram users will not be limited to sharing their photos on Facebook. Instead, they will continue to share them on other social networks like Twitter, Flickr, Tumblr, Posterous and Foursquare. What this means for brands is they will… Continue Reading
Unfashionable Firings: Judge Orders Clothing Store to Rehire Employees Who Lost Their Jobs Based on Facebook Posts.
Can you fire an employee who post on Facebook: “Hey dudes, it’s totally cool, tomorrow, I’m bringing aCaliforniaworkers rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation?” The employee was one of three workers who had been complaining to store management that the store should shut down an hour early so employees could avoid unsavory street people when exiting the store late at night. After a heated exchange with store management over the subject, three employees complained about the manager on Facebook and posted about brining the “Californiaworkers rights book,” which the employee did the next day. According to Administrative Law Judge William G. Kocol of the National Labor Relations Board, clothing retailer Bettie Page Clothing committed an unfair labor practice when it fired these three employees… Continue Reading
More Than Words of Disparagement: Does an Anti-Union Post Have to be Extreme to Go too Far?
In the union context, a significant degree of “vituperative speech” is allowed in the “heat of labor relations.” For example, an owner of 10 Jimmy John’s sandwich shops in the Minneapolis-St Paul area was subject to an organizing campaign by the International Workers of the World where some disparaging comments were being served on the union. During the union campaign, various managers and employees set up an anti-union Facebook page, which was open to anyone. A National Labor Relations Board Judge recently ruled, among other things, that some conduct of management on the Facebook page constituted an unfair labor practice, interfering with an affected employee’s Section 7 rights under the National Labor Relations Act (“NLRA”). Basically, some managers posted unflattering comments regarding a pro-union employee. The case is Miklin Enterprises, Inc. and Industrial Workers of the World (case numbers 18-ca-19707; 18-ca-19727; and 18-ca-19760) (April 20, 2012). This is a recent… Continue Reading
WILL JOB POSTINGS START TO LOOK LIKE THIS? Wanted – Qualified Individual, Must be Willing to Disclose Facebook Password in Exchange for Employment
While social media has its appeal, it is often tainted by concerns regarding the potential that misuse by others could invade one’s personal privacy. Users of social media encounter common questions regarding what is really private and what is really personal information. Further, users often question what information social media sites share with others about their personal preferences. Privacy settings can only do so much – what one chooses to share with others may, at some point, lose its cloak of privacy. The latest social media scandal relating to privacy comes from the employment arena. A new controversial interviewing tactic has caused quite a stir – the concept of employers asking applicants for their Facebook usernames and passwords. Back in March, news of this practice spread like wildfire. The Associated Press first broke the story of the practice that has been met with much criticism. While few instances of this… Continue Reading
Social Media Background Checks
You may recall our post a few weeks ago regarding the dangers in using social media to screen potential applicants for employment. Some states have reacted recently by proposing laws banning an employer from even requesting a social media password of an applicant in the interview process (a topic of a forthcoming post on this blog). Against this background, many employers are deciding that it is best to use a third-party service for researching social media information regarding candidates. Curious to see what options are out there for your company? Check out a good example of the approach being taken with Social Media Delivered.
Subpoenaing ISPs For User Identities May Now Be More Difficult–At Least in Florida
In decisions that could have positive implications for bloggers and other social media users who wish to maintain their anonymity, two judges in the Eleventh Judicial Circuit of Miami-Dade County, Florida have recently quashed subpoenas seeking the disclosure of the identify of hundreds of nationwide “John Doe” defendants. In the two cases, plaintiffs Open Mind Solutions, Inc. and Boy Racer Inc. issued the subpoenas to a number of Internet Service Providers (“ISPs”). Although the John Does are alleged to have infringed the plaintiffs’ copyrights in motion pictures through file sharing, rendering jurisdiction exclusive in federal court, the cases were filed in state court under a procedure called a “pure bill of discovery.” One judge noted in dismissing the suit filed by OpenMind Solutions without prejudice that OpenMind Solutions could amend the suit if it named the ISPs from which it sought discovery as parties (to allow the ISPs to assert available defenses) and alleged that any specific John Doe actually committed… Continue Reading
Potential Pitfalls of Online Relationships Between Supervisors and their Employees
Employers grappling with social media issues often ask whether it is advisable to permit employees to friend each other on Facebook, or connect on other social media sites. While it makes sense to typically avoid prohibiting friendships among rank-and-file employees (which could violate the National Labor Relations Act), social media interaction between supervisors and their subordinates can be more complicated. In these cases, it is important to recognize that a supervisor’s decision to connect with his or her subordinates via social media may result in inappropriate or unexpected disclosures. This can be a problem for two reasons. First, an employee’s social media activity may reveal the employee’s religion, national origin, disability, or other protected characteristic. A supervisor who inadvertently discovers this information online may later be accused of unlawfully making employment decisions based on this knowledge. Second, as the employer in Peer v. F5 Networks learned, employees whose social media… Continue Reading
SOCIAL MEDIA – THE PRE-INTERVIEW INTERVIEW YOU WEREN’T INVITED TO
As of February 2012, the national unemployment rate was 8.3 percent. For job seekers, the pressure is on to present the image of the ideal candidate on all fronts. In a competitive job market, applicants are revamping their resumes and perfecting their interviewing skills. This is not enough. There is one more area applicants should take into consideration before filling out their next job application. Social media has become a new means for learning additional information regarding potential applicants. And with more qualified applicants to choose from, employers are turning to social media to narrow down the pool of potential candidates. What potential employers find out about an applicant via the applicant’s social media could influence whether the applicant ultimately receives a job offer. While applicants are refining their image via social media (or changing their privacy settings), employers should know that pre-screening applicants via their social media is not… Continue Reading
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