Employer sues ex-employee for not updating his LinkedIn profile — Jefferson Audio Visual Systems, Inc. v. Light, 2013 WL 1947625 (W.D. Ky. May 9, 2013).
What would you do if your ex-employee told everybody he still works for you? One company’s response was to sue. In the first case of its kind, the company decided to sue its former employee for fraud for not updating his LinkedIn profile.
Jefferson Audio Visual Systems, Inc. (JAVS) fired its sales director, Gunnar Light, after he mishandled a potentially lucrative deal and made defamatory statements about JAVS to a prospective customer. Shortly afterwards, JAVS filed a lawsuit against Light alleging various claims, including fraud. JAVS argued that Light was fraudulent in failing to update his LinkedIn profile to reflect that he was no longer a JAVS employee. A Kentucky federal court dismissed the fraud claim because JAVS failed to show that it was defrauded by Light’s LinkedIn profile. At most, JAVS alleged that the profile tricked others. Under Kentucky law, a party claiming fraud must itself have relied on the fraudulent statements.
LegalTXTS Lesson: JAVS’ actions against its ex-employee might have been rather extreme, but the case is a reminder that ex-employees can leave behind an electronic wake that is damaging. Because computer technology is an integral part of work life, management needs to be intentional in disengaging ex-employees from the electronic systems and online persona of the organization. Each organization must determine for itself what measures for dealing with such post-termination issues are feasible, effective, and consistent with its objectives, but here are some suggestions:
1. Promptly update the organization’s website, social media profiles, and any other official online presence to reflect that the former employee no longer works for the organization.
2. Specify who owns Internet accounts handled by the ex-employee for the organization’s benefit and the information stored in the accounts. This includes social media accounts and cloud storage accounts (e.g., DropBox, Google Drive, SkyDrive) to the extent they contain proprietary data. As part of this measure, be sure to obtain the information needed to access the accounts, including any updates to login credentials.
3. Restrict the amount of access to which former employees, as well as current employees whose departure is imminent, have to workstations, databases, and networks of the organization. Limiting access helps to prevent theft of trade secrets and proprietary information. Many CFAA lawsuits have been spawned by a failure to take this precaution.
4. Check if the employee left behind anything that would enable him or her to gain unauthorized access to company systems, like malware, viruses, or “back doors.”
5. Enable systems that allow of erasure of the organization’s data from electronic devices used by the ex-employee to remotely access the work network, such as smartphones, laptops, and tablet computers.
6. Establish guidelines on employee use of the company’s intellectual property on personal internet profiles (e.g., Facebook, Twitter, LinkedIn), including trademarks and trade names.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. Three recent National Labor Relations Board (NLRB) decisions highlight this risk.
In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization. The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms. Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director. The employee who authored the original post and the employees who responded were fired. Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.” The NLRB also considered the posts “protected” because they related to job performance matters.
In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager. During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION.” Various co-workers responded to the post. The company fired Perez after learning about the post. An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA. The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers. The post was also “concerted” because it was activity undertaken on behalf of a union.
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night. The employees posted Facebook messages lamenting the denial of their request and criticizing their manager. In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations. Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner. The owner fired the employees who posted the messages, allegedly for insubordination. A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.
LegalTXTS Lesson: What should employers learn from these decisions? To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:
- Check whether the employee’s post attracted or solicited a response from co-workers. The interactive nature of social networking means that communications via social media are often “concerted.”
- Calls for co-workers to take action likely constitute “protected” activity.
- Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
- Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
- Be especially sensitive to messages that reference collective bargaining activity or labor requirements. Those are red flags indicating the need to exercise caution.
- Often, social media is not the initial venue for airing work-related complaints. Investigate whether the complaints voiced online were previously brought to the attention of the employer. If they were, the online messages are more likely to be found to be part of a series of protected activity.
Court finds that Coyote president/founder’s blog post and director of operation’s Facebook status update could qualify as “adverse action” against employees for purposes of FLSA retaliation claims–Stewart v. CUS Nashville, LLC, 2013 WL 456482 (M.D.Tenn. Feb. 6, 2013)
We’ve seen cases where employees were disciplined or fired for venting online (see posts here and here). But what about when the employer does the venting? That can create legal problems as well.
Employees of different bars in the well-known Coyote Ugly Saloon franchise filed a class action against corporate entities related to the franchise and Coyote Ugly’s president and founder, Liliana Lovell. The lawsuit claimed violations of the Fair Labor Standards Act. One of the plaintiffs (Stewart), claims that her employer retaliated against her shortly after the lawsuit was filed. The alleged retaliation came in the form of this entry on Lovell’s “Lil Spills” blog, which appears on Coyote Ugly’s website:
“By the way Lil, you should be getting served with a lawsuit. No worries just sign for it”. This particular case will end up pissing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances!
I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously , I am still a very new Buddhist cause my thoughts are ” fuck that bitch”. Let me do my breathing exercises and see if any of my thoughts change. Lol
Stewart claimed that the entry falsely accused of her theft.
A second employee (Stone), claimed that Coyote Ugly’s Director of Operations (Huckaby) made the following post to his Facebook page: “Dear God, please don’t let me kill the girl that is suing me .… that is all …..” Huckaby was intoxicated when he made this post. According to Stone, Huckaby was sitting across the bar from her when he made the post. Stone, who at the time was Facebook friends with Huckaby, saw the post on her phone almost an hour later, but the post was removed the next day. Huckaby did not remember making or removing the Facebook post.
Stone further claimed that Huckaby made retaliatory comments the next night after learning that a customer threatened to sue after falling down some stairs. Huckaby allegedly said: “Why does everyone sue? I’m tired of all these bi***es taking their issues out on our company. They’re f***ing idiots.” Huckaby made the statements while Stone was approximately two feet away. Stone quit her job the next day.
The defendants moved for summary judgment on the two individual retaliation claims. One of the issues relating to Stewart’s claim was whether the Lil Spills blog entry was an “adverse action.” A plaintiff claiming retaliation “must show that a reasonable employee would have found the challenged action material adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe. Ry. V. White, 548 U.S. 53, 67 (2006). Applying that standard, the court found that a blog entry written by the employer’s founder and president accusing an employee of theft could constitute an adverse action. A jury could find that the blog entry would have likely dissuaded a reasonable worker from making or supporting a FLSA claim. Because genuine issues of material fact existed, the court denied summary judgment on Stewart’s retaliation claim.
Similarly, factual issues precluded summary judgment on Stone’s retaliation claim. The court found that a reasonable person could find that Huckaby’s Facebook post was directed at Stone given that he knew she had joined the lawsuit and had made the post while seated across from her at the bar. The Facebook post, together with the comments Huckaby made the following night, could be reasonably construed as the employer’s official hostility toward employees who bring lawsuits against it. The court found that a reasonable person in Stone’s situation would have felt compelled to resign. On the flip side, the court also denied Stone’s motion for summary judgment on the retaliation claim because there were factual disputes over Huckaby’s state of mind. There was no evidence that Huckaby mentioned the lawsuit or Stone’s name while making either of the statements, and it was undisputed that he was drinking in both instances.
LegalTXTS Lesson: Authenticity can be an important part of a company’s brand or social engagement strategy, but sometimes a company’s self-expression can go too far. As this case illustrates, even stray remarks can have legal consequences. Like employees, employers need to exercise good judgment when posting content online. Complaining about employees on the Internet rarely constitutes good judgment. This is especially true if managers are connected to their subordinates on the same social network and therefore share content with each other.
No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)
We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.) Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district. Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media? Not in this case.
Jennifer O’Brien was a first-grade schoolteacher. O’Brien posted two statements on Facebook:
I’m not a teacher—I’m a warden for future criminals!
And the second:
They had a scared straight program in school—why couldn’t [I] bring [first] graders?
The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz). Ortiz was “appalled” by the statements. O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.
The school district charged O’Brien with conduct unbecoming of a teacher. An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed. The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments. A New Jersey court adopted with the reasoning of the ALJ on appeal.
Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements. The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivating for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.” Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools. The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.
LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks. Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees. But even public employees don’t have absolute freedom to say whatever they want. As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.
Facebook entitled to Communications Decency Act (CDA) immunity as an “interactive computer service” — Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. Dec. 28, 2012)
This is one of the few (but growing) cases recognizing that Facebook qualifies as an “interactive computer service” under the Communications Decency Act (CDA). In particular, the court finds that Facebook is an interactive computer service when acting as the publisher of a user-created Facebook page.
The plaintiff (Klayman), a Facebook user who is the chairman and general counsel of an organization called Freedom Watch, found a Facebook page titled “Third Palestinian Intifada.” This Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that ‘Judgment Day will be brought upon us only once Muslims have killed all Jews.” This page caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to Facebook requesting that they take down this and related pages. Klayman alleges that Facebook initially resisted removing the page, but eventually did so “begrudgingly.” Klayman then filed an action against Facebook and its CEO, Mark Zuckerberg, in the District of Columbia, who removed the action to federal court. The action asserted claims of negligence and assault against the defendants and sought, among other things, injunctive relief and punitive damages of over $1 billion.
Facebook argued that it had immunity under the CDA, and the court agreed. First, the court found that Facebook meets the definition of an “interactive computer service provider” because its website gives its users the ability to create, upload, and share various types of information with multiple users. Second, the court ruled that the allegations supporting the negligence and assault claims are based on Facebook’s status as a publisher or speaker. Third, the court concluded that Facebook was not the “information content provider” because it did not contribute in any way to the contents of the Facebook page in question.
LegalTXTS Lesson: The analysis of CDA immunity in this case is straightforward, but it’s noteworthy for concluding that Facebook is an “interactive service provider” for purposes of the CDA. Not many have cases have addressed the issue. This case joins Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), and Young v. Facebook, Inc., 20120 WL 42690304 (N.D. Cal. Oct. 25, 2010) (both cited in Klayman), as well as Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. Feb.2, 2012). Note, though, that the status of a social media website status as an “interactive service provider” could hinge on the functionality of the site at issue (e.g., Facebook newsfeed vs. Facebook ads).