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BT Currents - Hot Topics in Employment Law
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27 Sep 2013 Your Facebook “Like” May Be Constitutionally-Protected Speech

According to a recent decision by the United States Court of Appeals for the Fourth Circuit, pressing the “like” button on your Facebook page constitutes substantive speech that may be protected by the First Amendment. Six employees of the Hampton, Virginia Sheriff’s Office were dismissed because they showed support for Sheriff B.J. Roberts’ electoral opponent. They filed suit against Sheriff Roberts, claiming in part that their terminations violated the First Amendment. The United States District Court for the Eastern District of Virginia granted summary judgment…

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30 Aug 2013 Employers May Inadvertently Break the Law When They Discipline Employees for Facebook “Wall” Posts

A recent case makes clear that employers can violate the federal Stored Communications Act of 1986 (the SCA) when they discipline employees based on the content of nonpublic Facebook “wall” postings – depending on how they obtain the incriminating information. In Ehling v. Monmouth-Ocean Hospital Service Corp., a case in federal court in New Jersey, the plaintiff was a hospital paramedic who alleged that the her former employer violated the SCA when it fired her for a comment on her Facebook wall. The hospital thought her…

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23 May 2013 NLRB Offers Further Clarification Regarding Expression of Employees’ Section 7 Rights on Social Media

On May 8, the National Labor Relations Board (NLRB) issued an advice memorandum that further clarified its position regarding employees’ use of social media to make cybergripes pursuant to their Section 7 Rights. In In re: Tasker Healthcare Group, d/b/a/ Skinsmart Dermatology, no. 04-CA-094222, Charging Party and a group of nine other current and former employees participated in a private Facebook group message.  While the discussion started off as purely social, the tone changed when Charging Party referenced with disapproval a former employee who was…

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03 Apr 2013 What Happens on Facebook Stays on Facebook…Or Else

A Magistrate Judge within the United States District Court for the District of New Jersey recently affirmed the significance of social media postings in litigation proceedings, finding deactivation of a plaintiff’s Facebook account to constitute spoliation of evidence and warrant the issuance of an adverse inference against him at trial. Specifically, in Gatto v. United Air Lines, Inc., found here, a plaintiff alleged to have suffered an injury while working at the airport claimed, among other things, that his injuries precluded him from working and…

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26 Nov 2012 When Is Facebook Activity “Solicitation?”

Employers who have restrictive covenants with employees likely are familiar with non-solicitation agreements, where employees agree not to “solicit” the employer’s customers or other business associates after the employment relationship terminates. After an employee leaves and questions are raised about whether the employee is violating his or her contractual obligations to the now-former employer, often there is a question as to when communication and contact with customers becomes prohibited solicitation. A Massachusetts court’s decision in the recent case, Invidia LLC v. DiFonzo 2012 WL 5576406…

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21 Nov 2012 Hand it Over: Federal Judge Orders Plaintiffs in Discrimination Lawsuit to Produce Cell Phones and Facebook Account Passwords

Plaintiffs in an employment discrimination lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) recently were ordered to hand over their cell phones and Facebook account passwords for in camera (i.e. private) inspection by a federal Magistrate Judge. In this case, the EEOC brought suit alleging the defendant employer had subjected a class of female employees to sexual harassment and retaliation. During the course of discovery, the employer moved to compel the production of various text messages and social media posts. According to the Magistrate…

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04 Sep 2012 The NLRB, EEOC and Social Media

Be careful, the National Labor Relations Board (NLRB) is not the only federal agency interested in the interplay between social media and workplace decisions. On August 24, the Equal Employment Opportunity Commission (EEOC) Training Institute held a workshop where it addressed, among other things, the Commission’s interest in social media’s impact on the enforcement of federal employment discrimination laws. How can an employer get tripped up? Consider a case alleging that an employee was terminated – before she was clearly “showing” – on the basis of pregnancy discrimination. The employee typically…

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22 May 2012 Entertainers, Facebook Messages and the Work-Product Doctrine?

A federal district court in New York recently ruled that Facebook messages sent by plaintiffs in anticipation of litigation were eligible for qualified protection under the “work-product” doctrine (meaning they would be shielded from disclosure). Plaintiffs were former entertainers at the Penthouse Executive Club, and brought a collective action alleging the defendants failed to pay minimum wages and overtime compensation. The messages, sent to potential class members, reflected conversations with plaintiffs’ counsel regarding litigation strategy. The communications also included responses to specific questions about the lawsuit. However, reply messages from nonparties…

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