Labor & Employment Developments Blog

Social media has become an unavoidable part of society and an unavoidable issue in the workplace. While online posts may seem personal, a single tweet, post, or comment can quickly escalate into a workplace issue. With more than 70% of Americans active on at least one social media platform, employers should ensure their social media policies are carefully drafted to protect business interests while preserving employee rights.

On December 24, 2015, the NLRB ruled that an employer’s policy prohibiting employees from recording images or verbal exchanges in the workplace was unlawful.    

As most any litigation practitioner knows, Facebook can be GOLD.  Pictures really are worth 1,000 words. . . or more.  That million dollar picture of a plaintiff who has claimed debilitating emotional distress:  on a boat, raising a beer with friends, and posted smack in the middle of the period of time that plaintiff claims was riddled with “emotional distress.”  GOLD.  And it happens with regularity.  Facebook, as with other social media, is a medium of the moment – individuals post (and get tagged) in pictures posted during the adrenaline-infused, alcohol-fogged moments of “good times.”  And it is exactly these moments – moments easily forgotten by Plaintiffs asking a judge or jury for emotional distress damages – that are crucial to developing a clear picture of emotional distress. 

As the FMLA celebrates its 20^th birthday this February, social media continues to be an increasingly important resource for employers in combating frivolous FMLA interference and retaliation charges by former employees. 

In a story widely reported in the news last year, the EEOC sued Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, alleging that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.  The suit was based on the allegation that since at least 2008, Kaplan had rejected job applicants based on their credit history and that the practice had an unlawful discriminatory impact because of race.  One issue that arose in the case was the proper scope of the class of claimants in pattern or practice suits brought by the EEOC.  Specifically, whether individuals claiming to aggrieved more than 300 days before the filing of the charge that triggered the EEOC’s investigation could be included in the class.  This week, the Court answered that question in the negative, holding that the plain language of Title VII does not carve out an exception for the EEOC to bring untimely claims. 

The NLRB’s interest in social media has been in the news recently and I have commented on it here and here.  The assault on employers’ efforts to manage their employees use of social media as it pertains to the workplace continued this month with two new cases.

This week, the National Labor Relations Board told Thomson Reuters that it will file a civil complaint accusing the company of illegally reprimanding a reporter over a public Twitter posting criticizing management.  The reporter posted the following to a Reuters Twitter address: “One way to make this the best place to work is to deal honestly with Guild members.”  She was subsequently advised by Reuters’ management that she should not have published a post that could damage the company’s reputation.  Although she has indicated that she felt intimidated, it is not clear whether she was actually disciplined for the post.  The NLRB has taken the position that Reuters violated the reporter’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions.  Although this is the first incident involving Twitter, it is not the NLRB’s first foray into the realm of social media.  In October 2010, the NLRB filed a complaint against an ambulance company in Connecticut on behalf of an employee who had been terminated because she had posted negative comments about her supervisor on her personal Facebook page in violation of the company’s blogging and internet posting policy.  That case was settled in February 2011.  

An issue that seems to come up weekly in my practice is whether employers may monitor employee e-mail, text messages and internet use.

Most people have heard the news by now. Gen. Stanley McChrystal was relieved of his command of international forces in Afghanistan after his disparaging remarks about the Obama administration were published in Rolling Stone.  I had not intended to comment on this story, but so many people have asked me my opinion (offline) that I decided to blog about it.  Upon reflection, the story does have some application to labor and employment law issues.  In fact, I have decided to coin a new term for use in the employment law context — a “McChrystal.”

Have you heard about the non-solicit suit involving communications on LinkedIn? Well, it seems that an employer in Minnesota is suing former employees and their new employer over violations of the employees’ non-solicitation agreements. The twist is that one of the employees allegedly did her solicitation through her LinkedIn page, communicating with several former colleagues after going to work for a competitor.