Tag: Facebook

NLRB Shows Some Restraint in its Protection of Employee Social Media Communications: Employee Termination Arising From “Egregious” and “Insubordinate” Facebook Posts Was Legal Under the NLRA

Mintz Levin Law Firm

In the wake of the NLRB’s aggressive crackdown on social media policies, many employers have asked: “Is there any limit to what employees can post on social media about their employers?”  It appears that there is.  Just last week, a former employee of the Richmond District Neighborhood Teen Center in San Francisco learned this the hard way when the Board dismissed his complaint that the Center violated Section 8(a)(1) of the National Labor Relations Act after it pulled a rehire offer after it discovered that he particpated in an inappropriate Facebook exchange.

During the 2011-2012 school year, Ian Callaghan and Kenya Moore both worked for the Center’s afterschool program—Callaghan as a teen activity leader and Moore as the teen center program leader.  In May 2012, the Center held a staff meeting during which it solicited and received both positive and negative feedback from its staff, including Callaghan and Moore.  In July 2012, Callaghan and Moore received letters inviting them to return to the Center for the 2012-2013 school year; this time both as activity leaders.

The following month, Callaghan and Moore communicated over Facebook about (i) refusing to obtain permission before organizing youth activities (“ordering sh*t, having crazy events at the Beacon all the time.  I don’t want to ask permission…”; “Let’s do some cool sh*t and let them figure out the money”; “field trips all the time to wherever the f#@! we want!”), (ii) disregarding specific school district rules (“play music loud”; “teach the kids how to graffiti up the walls…”), (iii) undermining leadership (“we’ll take advantage”), (iv) neglecting their duties (“I ain’t go[]never be there”), and (v) jeopardizing the safety of participating youth and the program overall (“they start loosn kids I aint helpin”; “Let’s f#@! it up”).  When the Center’s administration became aware of the postings, it revoked the offers to rehire, and Callaghan filed a charge with the Board.

Under Section 7 of the Act, employees have the right to engage in concerted activities for their mutual aid and protection, including complaining to one another about the terms and conditions of their employment.  In that vein, an employer may not take adverse action against employees for exercising their Section 7 rights without violating Section 8(a)(1) of the Act.  That said, employees can take it too far and lose the protection of Section 7 when their conduct is particularly egregious or of such a character as to render the employees unfit for further service.

Here, although Callaghan and Moore previously had engaged in protected activity during the May 2012 staff meeting when they offered negative feedback about the Center, and although neither Callaghan nor Moore had ever engaged in any acts of insubordination, the Board held that they lost the Act’s protection because “[t]he magnitude and detail of insubordinate acts advocated in the [Facebook] posts reasonably gave [the Center] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

Several years ago, the Richmond District Neighborhood Center decision may have been a foregone conclusion.  But in light of the current Board’s aggressive approach to Section 7 protections, the decision provides employers with reassurance that Section 7 has retained at least some outer bounds.  The decision provides some guidance for defining “insubordination” in social media policies, for example, to include communications pervaded by detailed plans to jeopardize the employer’s very existence, violate legally enforceable employer policies, or neglect job duties.

For a full discussion of the Board’s recent approach to social media policies, see George Patterson’s September 3, 2014 posting “NLRB Continues Aggressive Crackdown on Social Media Polices.”

ARTICLE BY

Erin Cornell Horton
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

NLRB Finds Facebook Posts Go Too Far for the Act's Protection

Neal Gerber

As we reported previously, social media issues are troublesome for employers who must navigate unsettled or even conflicting federal and state laws and decisions.  A recent ruling from the National Labor Relations Board (NLRB) demonstrates that employers can still protect their business against inappropriate online activity by employees.  Specifically, the NLRB ruled that an Employer acted lawfully in rescinding two employees’ rehire offers, finding that the Facebook conversations between the two were so egregious as to lose protection under the National Labor Relations Act and render the two individuals unfit for further service with the Employer.

The Employer operates a Teen Center that provides afterschool activities to students.  During a period between school sessions, just before the employees would have been rehired for the coming school year, the two individuals engaged in a series of Facebook conversations during which they repeatedly talked, in profane terms, about what they intended to do when they returned to work. The messages contained numerous indications that the two would refuse to follow the rules and policies of the Employer, would refuse to work with management or get required permissions, would engage in various acts to undermine the school’s leadership, and they detailed specific acts of intended insubordination.

The NLRB agreed that the exchange of messages (which certainly discussed their displeasure over working conditions) was “protected concerted activity” under the Act. Normally, such protected activity cannot be the basis of any adverse employment action. However, the Board determined that the conduct constituted “pervasive advocacy of insubordination which, on an objective basis, was so egregious as to lose the Act’s protection.”

In finding the conduct unprotected, the Board relied on the fact that the individuals repeatedly described a wide variety of planned insubordinations in specific detail. According to the Board, these acts were beyond brief comments that might be explained away as a joke or hyperbole divorced from any likelihood of implementation. Rather, the Board concluded that the magnitude and detail of insubordinate conduct advocated in the posts reasonably gave the Employer concern that the two individuals would act on their plans, a risk that a reasonable employer would refuse to take by returning the individuals to the workforce. The Board concluded that the Employer was not required to wait for the employees to follow through on the misconduct they advocated.

This decision gives employers some relief that there are limits to what employees can say on social media, even if the subject of their conversations or postings is “protected” and “concerted”. However, before an employer can take adverse employment action against an employee who engages in such activity, the employer must be able to demonstrate that, on an objective basis, the activity is egregious and pervasive and is of such magnitude and of such detail that it is reasonably likely to be acted upon rather than being mere hyperbole.

[Richmond District Neighborhood Center, 361 NLRB No. 74 — October 28, 2014]

ARTICLE BY

Howard L. Bernstein
OF
Neal, Gerber & Eisenberg LLP

How to Build Trust Online by Being Human

The Rainmaker Institute

All you have to do is troll your own Facebook or LinkedIn account to know that there is LOTS of content online.

In fact, a recent post at Buffer.com noted that more content is published every day on Facebook than is found in every book published in human history!

Building Blocks with Trust

So how do you stand out from that enormous crowd and earn the trust you need to succeed with your social media marketing program?  Buffer provides these tips:

Use personal pronouns.  Using personal pronouns in your posts — I, we, you, me, etc. — and being more conversational elicits empathy from an audience, getting  you a better response.

Use simple words.  By using simple words, you can convey your idea in a way that people don’t have to think about before understanding it.  Big words and legalese will tend to alienate people, not draw them in.

Use stories.  Since the beginning of time, humans have communicated by telling stories and the propensity to listen to a story is ingrained in our DNA.  A Buffer study showed that adding a story to your blog post can increase readership by 300%.

Use contemporary culture references.  Weaving a pop culture reference or two into your post, especially if you’re able to add a celebrity name or two like Beyoncéor George Clooney (see how I did that?), helps boost readership and interest.

Use the Shaq Rule.  Shaquille O’Neal is a social media powerhouse, with a Twitter following of 8.5 million and 4.7 million Facebook fans.  His rule for posting is that 80% of his posts must be entertaining, 15% must be informative and only 5% should sell something.  People can sniff out a sales pitch online immediately, and just as quickly they are on to the next thing.

ARTICLE BY

Morgan Kennedy
OF
Covington & Burling LLP

Firings for Facebook Comments Unlawful, NLRB Rules

Jackson Lewis Law firm

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook activity, the NLRB has ruled. The Board also ruled the employer’s Internet/Blogging policy violated the NLRA. Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).

Facebook Posts

Triple Play employees Jillian Sanzone and Victor Spinella discovered they owed more in State income taxes on their earnings at the sports bar than expected. Sanzone discussed this at work with other employees, and some employees complained to the employer about the tax problem. The employees did not belong to a union. 

Sanzone, Spinella, and former employee Jamie LaFrance had Facebook accounts. On January 31, 2011, LaFrance posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…[expletive deleted]!!!!

The following comments were posted to LaFrance’s page in response:

KEN DESANTIS (a Facebook “friend” of LaFrance’s and a customer): “You owe them money…that’s [expletive deleted] up.”

DANIELLE MARIE PARENT (Triple Play employee): “I [expletive deleted] OWE MONEY TOO!”

LAFRANCE: “The state. Not Triple Play. I would never give that place a penny of my money. Ralph [DelBuono] [expletive deleted] up the paperwork…as per usual.”

DESANTIS: “yeah I really dont go to that place anymore.”

LAFRANCE: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

At this point, Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued:

LAFRANCE: “We shouldn’t have to pay it. It’s every employee there that its happening to.”

DESANTIS: “you better get that money…thats [expletive deleted] if that is the case im sure he did it to other people too.” 

PARENT: “Let me know what the board say because I owe $323 and ive never owed.”

LAFRANCE: “I’m already getting my 2000 after writing to the labor board and them investigating but now I find out he [expletive deleted] up my taxes and I owe the state a bunch. Grrr.”

PARENT: “I mentioned it to him and he said that we should want to owe.”

LAFRANCE: “Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.”

SANZONE: “I owe too. Such an [expletive deleted].”

PARENT: “yeah me neither, i told him we will be discussing it at the meeting.”

SARAH BAUMBACH (Triple Play employee): “I have never had to owe money at any jobs…i hope i wont have to at TP…probably will have to seeing as everyone else does!”

LAFRANCE: “Well discuss good bc I won’t be there to hear it. And let me know what his excuse is ;).”

JONATHAN FEELEY (a Facebook “friend” of LaFrance’s and customer): “And ther way to expensive.” 

Sanzone and Spinella Discharged

When Ralph DelBuono, the employer’s co-owner, learned about the Facebook discussion, he discharged Sanzone, telling her it was because of her Facebook comment. Spinella was terminated the next day, after being interrogated about the Facebook discussion, the meaning of his “Like” selection, the identity of the others in the conversation, and other issues. The other co-owner told Spinella that, because Spinella “liked” the disparaging and derogatory comments, Spinella was disloyal and it was “apparent” that Spinella wanted to work elsewhere. He told Spinella, “[Y]ou will be hearing from our lawyers.” Thereafter, the company’s attorney contacted Sanzone by letter, suggesting a possible defamation action. The lawyer also contacted LaFrance who, in response, deleted the entire Facebook conversation and posted a retraction. 

Sanzone and Spinella filed separate unfair labor practice charges against Triple Play, which the NLRB consolidated into one complaint. 

The employer did not dispute the employees’ Facebook activity was concerted and they had a protected right to engage in a Facebook discussion about the employer’s tax withholding calculations. The employer, however, contended it had not violated the NLRA because the plaintiffs had adopted LaFrance’s allegedly defamatory and disparaging comments, which were unprotected. The employer also asserted the Facebook posts were unprotected because they were made in a “public” forum, accessible to employees and customers, and they had undermined the co-owner’s authority in the workplace and adversely affected its public image.

Comments Protected

The Board disagreed. It determined the employees did not lose the Act’s protection to engage in concerted activity because of their comments in the Facebook discussion. Under its holding in Atlantic Steel, 245 NLRB 814 (1979), the NLRB explained, it must balance employee rights with the employer’s interest in maintaining order at its workplace, but Atlantic Steel dealt with workplace confrontations with the employer, which was not the scenario here. The employer’s reliance on that decision was therefore misplaced. In this case, the Board pointed out, the disputed conduct involved a social media discussion among offsite, off-dutyemployees, and two non-employees in which no manager or supervisor participated and where there was no direct confrontation with management. Further, the Board said, Sanzone’s “use of a single expletive” to describe her manager “in the course of a protected discussion on a social media website” did not “sufficiently implicate” the employer’s “legitimate interest in maintaining discipline and order in the workplace.”

The Board also rejected the employer’s argument that Sanzone’s comment was unprotected because it was a workplace confrontation that could be seen by customers DeSantis and Feeley. The NLRB noted they joined the discussion as LaFrance’s Facebook friends, on their own initiative and in the context of a social relationship with LaFrance outside of the workplace, not because they were the employer’s customers, and“[t]his off-duty indiscretion away from the [employer’s] premises did not disrupt any customer’s visit to the [employer].”

Neither did the Board see this conduct as disloyal or defamatory. While the Board agreed an employer has a legitimate interest in preventing the disparagement of its products or services and in protecting its reputation from defamation, against which NLRA Section 7 rights are to be balanced, that interest was not pr
esent here so as to overcome the employees’ statutory protection. It rejected the employer’s contention that Sanzone’s comment and Spinella’s “like” were disloyal and unprotected. The purpose of the employees’ communications was to seek and provide mutual support to encourage the employer to address problems in the terms or conditions of employment, not to disparage its product or services or to undermine its reputation, the NLRB said. The discussion clearly showed a labor dispute existed and the employees’ participation was not directed to the general public (they were more comparable to conversations that can be overheard by a customer). Further, the Board said the comments were not “so disloyal . . . as to lose the Act’s protection” because they did not even mention the employer’s products.

The Board also rejected the contention that the employees’ comments were unprotected because they were defamatory. According to the agency, Triple Play had not met its burden to establish the comments were made with knowledge of their falsity or with reckless disregard for their truth or falsity. In addition, it said that Sanzone’s use of an expletive to describe a co-owner in connection with the asserted tax-withholding errors “cannot reasonably be read as a statement of fact; rather, Sanzone was merely (profanely) voicing a negative personal opinion of [the co-owner].”

“Like” Protected

The Board also decided that Spinella’s use of Facebook’s “like” option was protected. It expressed agreement only with the comment it immediately followed (LaFrance’s original post), the Board found, not with LaFrance’s other comments. Accordingly, said the Board, Spinella’s activity was protected by the Act, and the employer’s adverse action was unlawful. (See our blog post, Employee’s Facebook ‘Like’ is Part of Concerted Activity: NLRB.)

Internet/Blogging Policy Unlawful

The Board faulted the employer’s internet/blogging policy, as well. It found that, since employees would reasonably construe the employer’s “Internet/Blogging” policy to prohibit the type of protected Facebook post that led to the unlawful discharges, it was illegal.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, email, text message, or other forms of communication extend to employees revealing confidential and proprietary information about the company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

Employees could reasonably interpret the policy as proscribing discussions about terms and conditions deemed “inappropriate” by the employer, because “‘inappropriate’ [is] ‘sufficiently imprecise’ that employees would reasonably understand it to encompass ‘discussions and interactions protected by Section 7,’” the Board found.

Employer Cautions

This decision is wide-ranging. It underscores the need for employers to pause, reflect, and thoroughly investigate before taking action against employees for alleged misconduct where they have acted together in regard to their wages, hours or working conditions, even where their language might give offense to the employer despite the fact that members of the public can view their complaints. The decision also shows the NLRB affords significant leeway to employees, even permitting public invective against business owners — at least up to a point. Finally, employers should avoid policies and rules that contain broad, imprecise, or vague prohibitions that might be viewed as restricting unlawfully employees’ protected activity. 

ARTICLE BY

Howard M. Bloom
Philip B. Rosen
 
OF
Jackson Lewis P.C.

Facebook, Inc. v. Rembrandt Social Media, L.P., Granting Request for Rehearing IPR2014-00415

Drinker Biddle Law Firm

Takeaway: Compliance with Section 42.105(b) regarding service by electronic means or EXPRESS MAIL is not required under Section 42.106(a)(2) in order for a filing date to be accorded to a petition.

In its Decision, the Board granted Patent Owner’s Request for Rehearing, but only to revisit the Board’s earlier statement regarding compliance with the requirements for service of a petition.

In its Decision on Institution, the Board had stated that “mailing via FedEx after the cut-off time on Thursday without electing Saturday delivery failed to comply with 37 C.F.R. § 42.105(b).” Patent Owner contended that the Board “misapprehend[ed] the regulatory nature of an alleged error in service of the Petition in this case,” and that the Board misapprehended “whether a failure to effect service on February 6, 2014, was ‘harmless.’”

The Board found Patent Owner’s arguments not persuasive but granted the Request for Rehearing to address the service of the Petition in this case. The Board determined that service of the Petition in this case complied with 37 C.F.R. § 42.106, which states that a filing date will not be accorded until “service of the petition on the correspondence address of record as provided in [§] 42.105(a).”  The Board stated that “Section 42.106(a)(2) does not require compliance with § 42.105(b) for a filing date to be accorded,” and that the Petition was properly accorded a February 6, 2014 filing date in this case.

Facebook, Inc. v. Rembrandt Social Media, L.P., IPR2014-00415
Paper 14:  Decision on Request for Rehearing
Dated: July 31, 2014
Patent: 6,415,316
Before: Phillip J. Kauffman, Jennifer S. Bisk, and Matthew R. Clements
Written by: Clements

ARTICLE BY

Intellectual Property Litigation Drinker Biddle
OF
Drinker Biddle & Reath LLP

How to Increase Your Engagement on Facebook [INFOGRAPHIC]

The Rainmaker Institute

If you’re using Facebook to “sell” your practice, you are probably disappointed in your results.  You see, Facebook is about engagement and anything that smacks of a hard-sell is usually tuned out.

facebook like

You will get much better results if you simply surrender to what Facebook can deliver, which is an opportunity to meet new prospects and to share your knowledge that may someday lead to new business.

A lot of new business connections occur on Facebook based on people you used to know –old high school or college friends that you connect with there and then educate them naturally on what you do now.  In that sense, approaching Facebook as a referral source cultivation opportunity could be a mindset that will pay you big dividends in the future.

That said, there are certain things you can do that research shows leads to more engagement with your Facebook posts.  This infographic lays that out:

Facebook engagement marketing

Article By:

Stephen Fairley
Of:
The Rainmaker Institute

Tips for Growing Your Fan Base on Facebook

The Rainmaker Institute mini logo (1)

One of the biggest challenges for anyone seeking to have a large social media following is growing your audience to a healthy level.  Sometimes it almost feels like we’re back in grade school, looking for other kids to like us!

Inbound marketing firm Hubspot has a number of informative presentations on Facebook marketing, but this quick slide guide with five tips on how to grow your audience is particularly useful since it visually walks you through the steps you need to take on your Facebook page to reap the rewards from each tip:

One of the biggest challenges for anyone seeking to have a large social media following is growing your audience to a healthy level.  Sometimes it almost feels like we’re back in grade school, looking for other kids to like us!

Inbound marketing firm Hubspot has a number of informative presentations on Facebook marketing, but this quick slide guide with five tips on how to grow your audience is particularly useful since it visually walks you through the steps you need to take on your Facebook page to reap the rewards from each tip:

5 Quick Tips For Growing Your Facebook Audience from HubSpot

Article By:

Stephen Fairley
Of:
The Rainmaker Institute

Facebook for Attorneys: How to Double Your Likes in No Time

The Rainmaker Institute mini logo (1)

Yesterday’s post detailed how business attorneys can double their connections on LinkedIn, but for consumer attorneys the most likely social media platform for your attention is Facebook.

And just like all social media networks, the lion’s share of the attention goes to those who interact frequently – and genuinely – with followers and fans.

Knowing how valuable and limited your time may be for social media marketing, you need to make efficient use of it to get the maximum benefit.  The infographic below from WhoIsHostingThis.com gives you specific steps you can take to double your Facebook “likes” in just five minutes a day:

Facebook Social Media Likes

Article By:

Stephen Fairley
Of:
The Rainmaker Institute

Facebook Post Breaches Confidentiality Provision of Settlement Agreement

Jackson Lewis Logo

 

A Florida appellate court has ruled that a teenaged daughter’s post on Facebookmentioning her father’s confidential settlement of an age discrimination claim breached a confidentiality provision in the settlement agreement, barring the father from collecting an $80,000 settlement. Gulliver Schools, Inc. v. Snay, No. 3D13-1952 (Fla 3d DCA Feb. 26, 2014).

The plaintiff, Patrick Snay, was a headmaster of Gulliver, a private school in the Miami area. After his contract was not renewed, he sued for age discrimination. The parties reached a settlement pursuant to a written agreement, which included a detailed confidentiality provision. The provision stated in part:

13. Confidentiality . . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . A breach . . . will result in disgorgement of the Plaintiff’s portion of the Settlement Payments.

A couple of days after the agreement was signed, Snay’s daughter, who had recently been a student at Gulliver, posted the following on her Facebook page:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay’s daughter had about 1,200 Facebook friends, many of whom were current or former Gulliver students. Gulliver notified Snay of the breach and refused to tender the $80,000 to Snay under the terms of the settlement. (Snay’s attorneys received their portion). Snay moved to enforce the agreement. Limited discovery revealed that Snay and his wife notified their daughter “that the case was settled and they were happy with the result.” Snay denied ever discussing a trip to Europe. The district court held that Snay’s actions did not violate the terms of the agreement, but the appellate court reversed, noting that Snay was prohibited from “directly or indirectly” disclosing even the “existence” of the settlement.

The decision offers lessons for counsel, litigants, and parents. Counsel and litigants need to remember that these types of confidentiality provisions with disgorgement penalties are taken seriously by the courts and can be enforced. Parents need to remind their children to be mindful of what they post on social media, because it might have adult consequences.

Article by:

V. John Ella

Of:

Jackson Lewis P.C.

National Labor Relations Board (NLRB) Judge Gives a “Like” to Facebook-Related Termination

Barnes & Thornburg

National Labor Relations Board (NLRB) Administrative Law Judge Jay R. Pollack recommended the dismissal of a complaint involving the termination of two former employees of the Richmond District Neighborhood Center, a non-profit organization in the San Francisco Bay Area that runs community programs including after-school and summer programs for youth.

facebook social media NLRB

The decision is all the more surprising because Judge Pollack agreed with the General Counsel that the employees at issue were engaged in protected concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees (including having “crazy events [without] permission,” “do[ing] cool [expletive] and let[ting] [the employer] figure it out,” “playing loud music and get[ting] graffiti artists to place graffiti on the walls,” and hav[ing] clubs and tak[ing] the kids”) in their Facebook conversations were not protected. Accordingly, the Judge found that the employer could lawfully find that the employees conduct was not protected and that they were unfit for further service.

While this decision shows that not all social-media misconduct must be tolerated by employers, it is important for employers dealing with these types of issues to contact competent labor and employment counsel prior to making any termination decisions involving social media, as defending against an action of this nature before the NLRB can be costly.

Article by:

Of:

Barnes & Thornburg LLP