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Clean Up on Aisle 7: Costco’s Electronic Posting Policy Chills Protected Activity

As we have explored through previous posts, the general counsel of the National Labor Relations Board, Lafe Solomon, has issued previous reports with guidance on what employers should not include in social media policies.  Consistent with this guidance, on September 7, 2012, the NLRB issued its first opinion regarding whether a policy that prohibits employees from making “damaging” statements about their employer via social media could chill Section 7 rights under the NLRA. In Costco Wholesale Club, 358 NLRB 106 (2012), a three member panel of the NLRB reviewed the following policy: Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be… Continue Reading

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

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

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.

British High Court Permits Service Via Facebook: Will U.S. Courts Follow?

By Nick Nelson The Associated Press reports that a High Court Judge in England last week approved the use of Facebook to serve legal documents on a defendant in a commercial dispute. According to the report, the plaintiffs had attempted to serve the defendant at his last known address, but it wasn’t clear whether the individual was still living there.  The defendant’s e-mail address was also unknown. Attorneys for the plaintiffs told the High Court that there was evidence that the defendant’s Facebook account, on the other hand, was active – he had just recently accepted two new friend requests. Under these circumstances, Justice Nigel Teare granted the plaintiffs’ request to serve the defendant via Facebook.  According to Jenni Jenkins, an attorney for plaintiffs who was quoted by the Associated Press, the defendant was given extra time to respond to the claim “to allow for the possibility that he wasn’t… Continue Reading

Make your Social Media Policy Stick

When it comes to monitoring employee social media use and, in turn, compliance with your policies, companies are generally governed by the Electronic Communications Privacy Act (ECPA), passed in 1986. The courts struggle with interpreting this outdated law because of the explosion in the types of electronic communication that have launched since the passage of the act. Questions have arisen about what companies can and cannot do to monitor employee use of electronic communication. For example, the very convoluted terms within the law make it hard for employers to understand whether they are the provider of the platform at issue. Is the company at risk because it owns the servers? Or is it AOL or Microsoft that supports the communication? Failing to address the nuances of the ECPA can be costly as the law generally prohibits companies from intercepting electronic communications, whether in the form of e-mails, electronic posts or… Continue Reading

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