Tag Archives: social media

Is it Lawful to Terminate an Employee Who Attended a Neo-Nazi or White Supremacist Rally?

Is “check to see if any employees came out to support Nazis or White Supremacist” the new normal for HR? After this weekend’s tragic and despicable events in Virginia, it looks like the answer is yes. The events in question involved a rally of white supremacist, KKK members, and Neo-Nazis that took place at the … Continue Reading

NLRB Makes Gambling with Your Company’s Employee Handbook a Risky Bet

Employers are once again put on notice that missteps in drafting employee handbooks and other HR policies will be targeted as unfair labor practices where they come within an area code of compromising employee rights under the National Labor Relations Act (NLRA). This time, a California casino was found to have interfered with workers’ labor … Continue Reading

Would Yelp Get a Favorable Review from the NLRB for Blog Post Termination?

Last week a former employee working for Yelp’s food delivery unit, Eat 24, was fired for violating the company’s internal “terms of conduct.” The termination came after the customer-service rep, Talia Janes, wrote a critical blog post about her low pay and working conditions in an open letter to Yelp’s CEO. The interesting issue for legal geeks … Continue Reading

Employer Violated Employee Rights Over Facebook Firing

An employer illegally fired two employees for criticizing the company on Facebook. This decision comes from the U.S. Court of Appeals for the Second Circuit, which affirmed a National Labor Relations Board decision (NLRB). Three D, LLC v NLRB (10-21-2015). This decision also highlights the need to meaningfully evaluate conduct giving rise to employee discipline, … Continue Reading

Employee Fired for Facebook Postings Latest Example for Why Companies Need a Social Media Policy and Plan

Employee social media issues recently made headlines in the most deplorable way when an employee was fired on September 29, 2015, after he posted a picture of himself online with a colleague’s 3-year-old black son. The picture taken by Gerod Roth, the former employee, resulted (for reasons unknown) numerous bigoted and racists comments from the former … Continue Reading

Employer’s Social Media Policy Found Not To Violate Employees’ Rights

A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA). Initially, … Continue Reading

Study Finds Evidence of Unlawful Discrimination in Using Social Media to Recruit Employees

A recent article in the Wall Street Journal (reported on 11/21/2013 by Jennifer DeVries) discussed a study showing bias in the hiring process when social media is used to screen job applicants. Because of the potential for unlawful discrimination and losing out on otherwise qualified job applicants, the article and study should be a “must … Continue Reading

Social Media Rant by Employer Results in Retaliation Claim Added to Pending Litigation

The recent termination of an employee (Adria Richards) after she tweeted her displeasure at off-color jokes told by certain fellow attendees at an industry conference she attended on behalf of her employer has resulted in a lot of good discussion (see here and here for examples) about the increasing intertwining of social media and employment legal … Continue Reading

Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords – Not Something to “Like”

Proposed Michigan Social Media legislation is back in the headlines. Specifically, Chris Gautz of Crain’s Detroit Business reported that Michigan Senate House Bill 5523, (sponsored by Rep. Aric Nesbitt, R-Lawton), was approved unanimously by the House in September and is now sitting on the Senate floor.  This bill would “outlaw” employers from requiring employees and … Continue Reading

NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies

In what has been perhaps the most telegraphed wind-up punch to hit employers in some time, the National Labor Relations Board (NLRB) has finally weighed in on the issue of employer social media policies.  Specifically, on September 7, the NLRB issued its Order striking down Costco Wholesale Corporation’s social media policy and related electronic posting … Continue Reading

$4.5 Million Reasons for Employers and Individuals to Balance Social Media Use & Risks

A previous post on this blog discussed ways for employers to increase the effectiveness of a company’s social media policy (See The Sweet-spot for Increasing the Effectiveness of a Social Media Policy: Employee Self-Interest). One of the real-world examples discussed in that post was a lawsuit against a former Michigan Assistant Attorney General Andrew Shirvell … Continue Reading

Michigan Proposes Legislation to Ban Employers from Accessing Employees’ Social Media Sites

Michigan recently joined a growing trend of states that have introduced legislation to prohibit employers from asking job applicants and current employees for passwords and other private account information for social networking websites such as Facebook and Twitter. Specifically, State Rep. Aric Nesbitt (Republican) proposed legislation that applies to state and private employers. Mr. Nesbitt’s … Continue Reading

Of Muppets and Men – How Will Your Goldman Sachs Social Media Nightmare be Told?

One general misconception that business owners have when it comes to social media policies is that it is a silver bullet against disgruntled employees disparaging the company. Certainly this is a serious concern for any employer. But a recent “parting gift” from a Goldman Sachs Vice President illustrates the real danger that social media poses … Continue Reading

The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing.

On February 6, 2012 I had the opportunity to speak to human resource professionals about legal issues at the intersection of social media and employment law. This HR group is lead by the B2B Connection and its president Gail Sanderson. A special thanks is also owed to Molly DiBianca over at the Delaware Employment Law Blog for her permission … Continue Reading

NLRB Releases Second Social Media Advisory Report: What It Means for Employers

On January 25, 2012, the National Labor Relations Board’s General Counsel issued a press release that a second report describing social media cases reviewed by the NLRB has been made available. The first NLRB social media report (PDF) was released in August 2011. According to the NLRB’s press release, this second NLRB report (PDF) was needed to address … Continue Reading

Since When are Employee Rants Protected by Federal Law?

  Briefly, under Section 7 of the National Labor Relations Act (NLRA), employees are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” 29 … Continue Reading

Using Social Media to Screen Job Applicants – A Few Recommendations for Employers

Certainly social networking sites like Facebook, LinkedIn, blogs, and Twitter provide employers with opportunities to obtain useful, legitimate, and relevant information about a job applicant. But the above Dilbert comic by Scott Adams underscores that there are also risks in using such social media outlets to screen job applicants.   Specifically, if employers use social media … Continue Reading

Social Media and the NLRB: Two Must Read Reports for Employers and HR Professionals

It is no secret that the NLRB has put employer’s social media policies and employee discipline discharges arising out of social media (a/k/a Facebook Firings) in its cross-hairs. This fact was recently highlighted in another NLRB Press Release (9/7/11) where an administrative law judge found that a Buffalo nonprofit organization unlawfully discharged five employees after … Continue Reading

The Sweet-spot for Increasing the Effectiveness of a Social Media Policy: Employee Self-Interest

Conventional wisdom directs companies to implement social media policy to eliminate or otherwise reduce the risks involved with social media. But a social media policy is only effective if it is followed by a company’s employees. And the sweet spot for increasing compliance with such a policy is by showing individual employees why they have … Continue Reading

Does An Employer Violate the FLSA’s Anti-retaliation Provision for Firing Employee For Facebook Posting About Payment Practices?

On June 24, 2011, a Florida federal district court dismissed a claim that an employer violated the Fair Labor Standards Act’s (FLSA) anti-retaliation provision by allegedly firing an employee who expressed her disagreement over the employer’s payment practices on Facebook. The Plaintiff, Lilli Morse, filed suit against her former employer, J.P. Morgan Chase & Co., under … Continue Reading

Two Questions Employers Should Ask Before Implementing A Social Media Policy

Peter Drucker noted that “The most serious mistakes are not being made as a result of wrong answers. The truly dangerous thing is asking the wrong questions.”  Mr. Drucker’s advice is particularly appropriate when it comes to legal issues involving social media and employees. In this regard, there is no shortage of general “answers” in … Continue Reading

Targeting “Excessive” Social Media Use as Violation of Computer Fraud & Abuse Act Misses the Mark

A Computer Fraud and Abuse Act Claim (CFAA) against a former employee based on “excessive Internet usage,” including visiting Facebook was recently dismissed by a Federal District Court in Florida.  Specifically, in Lee v. PMSI, Inc., the former employer claimed Wendi Lee, engaged in “excessive Internet usage” and visited “personal websites such as Facebook” and sent and … Continue Reading
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