Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Facebook’

A “Like” is a Like, Court Says, and is Protected Free Speech

Wednesday, September 25th, 2013

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

Workers Win Facebook Fight Against Huge Supermarket Chain

Monday, June 4th, 2012

Two labor unions representing workers at supermarket chains are reporting success in efforts to protect their members from employers who want to impose restrictive rules on the use of social media outside the workplace.

Leaders of the United Food & Commercial Workers (UFCW) union and the Teamsters have successfully backed down a large multinational conglomerate that attempted to impose such restrictions on more than 100,000 workers across the New England and Mid-Atlantic regions, union officials said.  Complaints to the National Labor Relations Board (NLRB) have resulted in the New York-based unit of the company withdrawing the disputed policy, and a settlement of similar complaints is imminent in the Baltimore area, they said.

The fight erupted late last year when supermarket chains owned by the Dutch retailing conglomerate Royal Ahold began demanding that employees sign a “Social Policy Guidelines” document that warned of dire consequences if workers used social media outlets like Facebook and Twitter to communicate too freely about their jobs. The grocery chains—Stop & Shop in New England/New York, Giant Food in the Mid-Atlantic, Martin’s Food Markets in Virginia, and a separate home delivery service called Peapod—threatened disciplinary action, including possible dismissal, if employees refused to sign the document or violated any of the guidelines.

For Jeff Armstrong, a five-year employee at the Giant store in Rehoboth Beach, Del., the threat of dismissal for refusing to sign was startling. “I couldn’t believe it. They called us in and made us sit down in front of a terminal. They said ‘Read this, then sign it.’ They told us you had to sign right then and there, and that if you didn’t sign, you could be fired,” Armstrong said. Feeling pressured, he reluctantly signed.

But Armstrong grew angry as he discussed the humiliating incident with co-workers and reconsidered it in his own mind. A UFCW member, he talked to his shop steward and other union representatives. Impatient for action and determined to assert his own rights, he ultimately took a courageous step and personally filed a complaint against Giant with the NLRB regional office in Baltimore.

He didn’t know it at the time, but complaints were already starting to pile up at NLRB offices. Ritchie Brooks, president of Teamsters Local 730 in Washington, D.C., was hearing stories similar to Armstrong’s from his members at a Giant warehouse in the Maryland suburbs.

“I told the guys not to sign anything. They (Giant) can’t pull this shit. It was retaliation, plain and simple. They did it (imposed the social media policy) because in 2010-2011 we fought them on the contract,” Brooks said, referring to heated contract talks in which Giant has sought to cut Teamster jobs in the area.

Brooks quickly filed an NLRB complaint and was joined by two other Teamster locals in the region that also have contracts with Giant. Filing a separate complaint was UFCW Local 400, which represents thousands of Giant employees in Maryland and Virginia. Significantly, Local 400 is also involved in nascent efforts to organize workers in the Martin’s Food Markets chain, which is one of several non-union operations under the Ahold umbrella.

Meanwhile, the same issues were coming to a head in the New York area. Tony Speelman, secretary-treasurer of UFCW Local 1500, represents about 5,500 Stop & Shop employees in New York City and its suburbs. He says he received dozens of reports from members when Stop & Shop sought to impose the social media guidelines in a way virtually identical to Giant. In March Local 1500 filed an NLRB complaint, charging that the guidelines were a violation of federal labor law and of the civil rights of workers, he said.

“ It is our belief that Stop & Shop has implemented a policy that is vague, overbroad and in violation of the civil rights of our members employed at their stores. Furthermore they did so without first bargaining with our union. That action alone is in violation of federal labor law,” Speelman stated in announcing the complaint.

If not in agreement with Speelman, Stop & Shop executives at least recognized they had a legal problem. Last month, the guidelines were withdrawn and are currently under review, Speelman says.

Contacted by Working In These Times for comment, Ahold USA spokeswoman Tracy Pawelski said the company would not make anyone available for a telephone interview to discuss the policy. Separate offices for Giant and Stop & Shop also declined to discuss the matter, and refused or ignored repeated requests for copies of the disputed guidelines.  Stop & Shop spokeswoman Arlene Putterman insisted that new social media guidelines are now in effect, but wouldn’t say what they were or how they are different than those that had been withdrawn.

In any event, a settlement of the charges in NLRB’s Baltimore region appears to be imminent, according to NLRB spokeswoman Shelly Skinner. Documents have been circulated among all the parties to the complaints, Skinner said, and the NLRB is taking the position that the language of the Giant policy is overly broad. The labor agency also sees merit in the charge that the policy could chill the exercise of the employees’ protected rights, she said. Armstrong added that his understanding of the settlement is that Giant will no longer threaten dismissal for employees who refuse to sign the policy document.

For UFCW, this victory is part of a larger struggle taking place in the realm of social media, according to Amber Sparks, director of new media at the union’s international headquarters in Washington, D.C. The union is using social media, especially Facebook, as a way to connect workers with each other and their union, she said. These efforts are provoking reactions from employers like Giant who see Facebook campaigns for fair labor contracts, or new organizing initiatives, as a threat, she said.

For Armstrong, his experience has given him a unique perspective on the NLRB, which yesterday released its latest report on employer social media policies, and on the political fights that have engulfed the agency since President Barack Obama took office.

“When I read these stories about the NLRB, it makes my skin crawl,” Armstrong says. “I have nothing but the highest regard for the NLRB people I’ve worked with. There is no other agency that is there to protect employees, and that is why the companies get so upset.  As far as I am concerned the NLRB people are wonderful—they are there for the employee when there is no place else to go.”

This blog originally appeared in Working in These Times on June 1, 2012. Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Protected freedom of speech for workers on Facebook?

Friday, November 12th, 2010

Image: Richard NegriIn an era where it’s not unheard of for an employee’s use of social media to lead to their dismissal, one question that comes up more frequently these days regarding a worker’s rights is “Can I say that on Facebook?

This week, the National Labor Relations Board alleged that a Connecticut company acted illegally when they fired an employee after she bad-mouthed her supervisor on Facebook. The labor board charged that the company wrongfully denied the employee union representation during an investigatory interview, as well as “maintained and enforced an overly broad blogging and Internet posting policy.”

CAUTION: This Is Not A Green Light To Trash Talk Your Boss on Facebook

This complaint issued by the NLRB should not be interpreted to suggest that anything employees say on Facebook about their employer will be protected. It doesn’t do that.

Although the National Labor Relations Act bars employers from penalizing their employees for talking about workplace conditions (like wages) or forming a union with their coworkers, as noted on the NLRB’s own Facebook page and on Mashable, Facebook comments can lose protected status depending on a number of factors.

  1. Where the discussion takes place
  2. The subject matter
  3. The nature of the outburst
  4. Whether the comments were provoked by an employer’s unfair labor practice

Although workers’ speech online is still a relatively new medium for the labor board, their position on this case presents the real possibility that workers won’t have to fear speaking up, being heard, and communicating about work issues on Facebook in the future.

As The New York Times‘ Steven Greenhouse notes:

This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.

Implications for Online Organizing

Educating, mobilizing and organizing workers online is what our union does to assist traditional boots-on–the-ground union work. There are many tools that enable us to do our work as online organizers, and we certainly rely heavily on social media.

Why? Because with social media platforms like Facebook, we can help establish an environment where workers can freely talk to one another about their issues at work–whatever they may be. This is not so different than member-to-member organizing, except it takes place online and doesn’t require workers to be face-to-face in order to connect with one another.

The Bottom Line: As this investigation moves forward and the January 2011 hearing draw closer, we anticipate push back from the opposition. However, whatever happens, the outcome of this case will go a long way toward defining what employees can and cannot do when it comes to online communications and airing their work issues with their co-workers on Facebook.

This article was originally posted on SEIU.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

I recognize you do amazing work, but you're still not getting minimum wage

Tuesday, August 24th, 2010

Image: Richard NegriSomeone sent me an email earlier entitled, “U.S. Senate Declares National Direct Support Professionals Recognition Week.”

The big week of recognition is slotted to begin September 12th.

In the announcement for “Recognition Week,” Senator Ben Nelson says, “Direct support professionals provide an invaluable service to the millions of Americans living with disabilities. I’m proud to honor these hard-working individuals who give so much to help those in need. Their dedication to service is an example to us all.”

So, bravo to the Senate for marking a week in September to honor these workers, but honor and a week of applause doesn’t pay the bills. Surely, they must know this.

While the Senate “recognizes” these workers, more than 1.5 million home care workers are currently living at near-poverty level earning a median income of $17,000 a year. Most of these workers, who both love their work and are good at their work, must have two and three jobs to just make ends meet. Many of these workers need food stamps to put food on their tables. All this ultimately hurts the consumer, who often finds it difficult to find and retain high quality home care services.

Home care workers–the folks who provide essential care and services to more than 13 million seniors and people with disabilities every day–are legally excluded from federal minimum wage and overtime protections.

While we should definitely celebrate these workers’ contribution to society, we should also recognize their needs as working people. Perhaps we should help them get out from near poverty levels and give them the right to have a day off from time to time to take care of their own families? Why shouldn’t they be paid overtime when they work 70 and 80 hours a week with sleepovers as part of the gig?

I’ve mentioned this before in other entries but it is worth repeating: the U.S. Department of Labor has the authority to make this long overdue regulatory change and do the right thing for home care workers and the individuals and families who depend on their services. In other words, they have the authority to turn this around so that home care workers can enjoy the same benefits many take for granted.

What we need to do to bring this change about is let people know that this issue even exists, and second, we need take some very basic actions online.

On Facebook, become a fan of the Department of Labor’s Facebook page and post this message:

Secretary Solis, home care workers deserve minimum wage and overtime protection. It’s time to change the companionship exemption regulations: http://bit.ly/a5pF1e

On Twitter, copy, paste, and tweet this message:

@HildaSolisDOL, it’s time to end the exclusion of home care workers from minimum wage and overtime exemption: http://bit.ly/a5pF1e

On Facebook, you should also become a fan of this campaign’s page:

Homecare Workers Deserve Minimum Wage Protection.

Here’s some legal background on how home care workers came to be legally excluded from federal minimum wage and overtime protections:

* 1938 – The federal Fair Labor Standards Act (FLSA) is enacted to ensure a minimum standard of living for workers through the provision of a minimum wage, overtime pay, and other protections — but domestic workers are excluded.

1974 – The FLSA is amended to include domestic employees such as housekeepers, full-time nannies, chauffeurs, and cleaners. However, persons employed as “companions to the elderly or infirm” remain excluded from the law.

1975 – The Department of Labor (DOL) interprets the “companionship exemption” as including almost all home care workers , even those employed by third parties such as home care agencies.

2001 – The Clinton DOL finds that “significant changes in the home care industry” have occurred and issues a “notice of proposed rulemaking” that would have made important changes to the exemption. The revision process is terminated, however, by the incoming Bush Administration.

2007 – The US Supreme Court, in a case brought by New York home care attendant Evelyn Coke, upholds the DOL’s authority to define exceptions to FLSA.

Today: We are calling on DOL Secretary Hilda Solis to ensure that home care workers receive basic labor protections.

Together we can create the same labor protections for home care workers that virtually ever other worker in the economy enjoys.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

Will we ever get a real working class hero?

Monday, August 16th, 2010

Image: Bob RosnerIs there anyone out there who hasn’t heard of Jet Blue flight attendant Steven Slater’s profanity filled tirade and exit down the emergency chute carrying beer?

From the Asian animation of his battle with the passenger, 140,000 Facebook fans and T-Shirts, we finally have an authentic working class hero who symbolizes all the frustrations of trying to survive the surly attitudes so common in today’s recession. Or do we?

Turns out that no passengers actually saw the altercation with the passenger that resulted in a gash on Slater’s forehead. In fact, one of the first passengers on the flight claims that Slater had the gash before any passengers boarded the plane.

He was mad as hell and couldn’t take it anymore.

But was his anger based on something that really happened, or did it just happen in his own mind? Maybe this doesn’t matter to you, but if we’re all going to nominate this guy to hero status, I’d like his story to align with other people who were on the flight.

Okay, I saw the movie Red Eye. When Jodie Foster’s kid disappeared on a plane in flight. So the woman who slugged him could have gone all Hollywood and disappeared. But the fact that no one corroborated his story and how he got that nasty gash on his forehead does trouble me.

Earlier in the year we had Conan. Remember when Coco was bounced from his Tonight Show perch. Sure NBC didn’t handle this very gracefully. But he did get many millions of dollars. And ratings have improved dramatically for his replacement, Jay Leno. Oops another working class hero who is hard to relate to.

Can’t a guy get an authentic working class hero anymore? Is that too much to ask?

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

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