Whether or not your friends and family get a kick out of your misery at work, that online post of yours might tick off your employer. But what rights do employers have to restrain their employees from complaining about them online? Can employers punish employees for posting their grievances online? How do courts differentiate between “protected” and “tantrum” posts? What is the Government’s view on employees’ social media postings? In 2011, Pier Sixty LLC fired Hernan Perez for labeling his supervisor a “nasty M.F.” and using similarly profane language against his supervisor’s family in a Facebook post that ended with a plea to “Vote YES for the UNION.” In a 2016 decision, the Second Circuit enforced the National Labor Research Board’s (NLRB) decision and found that the employee was protected under the National Labor Relations Act (NLRA) because the post was in relation to a union-related activity.
At the end of 2016, the U.S. Customs Border Protection (CBP) implemented a rule to include questions concerning social media accounts of travelers to the United States during the Visa Waiver Program screening process (VWP). The VWP permits citizens of 38 countries to visit the United States for up to 90 days without having to obtain a visa. ESTA is the automated system that determines the eligibility of travelers entering through the VWP. Now, in addition to collecting biographical information from a traveler, CBP will request social media identifiers of travelers during the ESTA application process for vetting purposes. Continue reading →
Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with the ubiquitous selfie, brand companies have discovered a rich supply of user-generated content. Consider a consumer who takes a selfie wearing a favorite pair of jeans, posts the photo on Instagram, and then tags the photo with #brandname. The jean company sees and likes the photo, re-posting it on the company website. Legal issues? If the consumer or user was hoping to get attention from the brand for the photo and opinions shared online, not at all. This is how many digital influencers get their start. But if the user was not seeking such attention? Then, problems can arise.
Notwithstanding that the people involved are often surprised at their public exposure, it has become somewhat commonplace for individuals to be either caught on video by a smartphone or to have a social media website posting that demonstrates poor judgment go viral. All employers should consider having a social media response plan for just these sorts of incidents, in some cases to protect other employees and in many cases to protect the employer’s brand and reputation. Even then, employers must strike a fine balance in navigating their rights and responsibilities towards all affected by the sudden exposure.
The Federal Communications Commission’s Accessibility and Innovation Initiative will host an “Accessing Social Media” event on Thursday, July 17, 2014 from 9 a.m. to 4 p.m. in the Commission Meeting Room in its headquarters located at 445 12th Street, S.W., Washington, D.C. The event will be webcast without open captioning. The event is open to the public, however, RSVPing for in-person attendance is encouraged.
The FCC’s stated purpose of the event is “to facilitate a collaborative, cross-sector exchange of information about making social media tools and content accessible to people with disabilities, including information about authoring tools, client apps and best practices.” The event will include panels of industry, consumer and government representatives and feature technology demonstrations in an exhibit area.
2013 was an incredibly active year for social media legal issues. Below are selected highlights on some of the more interesting legal issues that impacted social media, along with links to reference material relating to the topics.
1. Virtual Currency/Bitcoin
FinCEN Virtual Currency Guidance and Enforcements – FinCEN published legal guidance on virtual currency making clear that existing regulations regarding money transmitter and anti-money laundering laws apply to certain virtual currency activities. Shortly after issuance of the guidelines,
a wave of enforcements shut down non-complying entities. [BLOG]
Congressional Hearings on Virtual Currency – Congressional hearings were surprisingly more friendly and receptive of Bitcoin and other virtual currencies.
2. Privacy – Guidance and Enforcements
CA Privacy Law
– California passed new privacy laws.
3. Intellectual Property/Patents
Patents – The number of social media patent filings continued to increase. The America Invents Act (AIA) fully kicked in, providing a greater ability to challenge patents believed to be invalid without going through district court litigation. The Fast Track
process to get patents issued more rapidly (often in less than a year)
Ownership of Social Media Accounts and Followers – Despite a number of cases (including ones involving LinkedIn and Twitter) relating to ownership of social media accounts, the law remained murky and fact specific.
This uncertainty can be avoided by proper attention to social media policies before issues arise.
4. Employment Law and Social Media
National Labor Relations Board (NLRB) – The NLRB continued to issue surprising guidance and decisions on social media usage. In many cases, some or all provisions of employers’ policies governing the use of social media by employees were found to be unlawful. [BLOG] The NLRB affirmed that workers have the right to discuss work conditions freely without fear of retribution,
whether the discussion takes place in the office or on Facebook. But later in the year it actually found some uses of social media for employment (firing) decisions to be okay.
Employer Access to Social Media User Names and Passwords – By year end, 36 states had passed or initiated legislation prohibiting employers from requesting personal social media account information or passwords in connection with employment decisions.
National Conference of State Legislatures Report – Some states have similar legislation to protect students in public colleges and universities.
5. Online Gaming
First mover states
forged forward with online gambling.
· Nevada – Legalized online poker and granted its first licenses for interactive gaming.
· New Jersey – In February, passed legislation (signed into law by Governor Chris Christie) allowing on-line wagering. Subject to certain limitations, licensed operators are permitted to offer online versions of a wide variety of games currently permitted in Atlantic City casinos (e.g., roulette, craps, black jack, and slots).
· Delaware – On October 31, launched what Delaware officials call a “full suite” of internet gambling.
Zynga – In September,
Zynga withdrew its bid for a gambling license in Nevada
Federal Gambling Legislation
– The prospects for a federal law for online gambling remain elusive.
Mobile Health Applications
– The Food and Drug Administration (FDA) issued guidance that focused on applications that present a greater risk to patients if they do not work as intended or that cause smartphones or other mobile platforms to impact the functionality or performance of traditional medical devices.
– The FTC issued guidance in April focusing on truthful advertising and privacy.
gaming promotions in a cause-related marketing campaign (where purchase of a good or service benefits a charitable cause).
Internet Sweepstakes Café Conviction in Florida – Lawyer Kelly Mathis was convicted on 103 of 104 counts related to illegal gambling based on his role in Internet Sweepstakes Cafés in Florida. He faces up to 30 years in prison. CA, OH, SC and other states moved quickly to shut down similar operations.
Equity-based crowd funding legalized in the United States
Equity crowd funding is much like crowd funding, which has been popularized in the United States through sites such as Kickstarter and Indiegogo. The difference is that instead of individuals supporting campaigns through donations, numerous investors are purchasing small stakes in startups or small businesses.
– Critics of equity crowd funding worry that the industry will be rife with Ponzi schemes or that having too many investors will hurt startups’ prospects for future funding.
FTC Enforcements on Fake Endorsements – In February, the FTC permanently stopped a fake news website operator that allegedly deceived consumers about acai berry weight loss products. The settlements will yield more than $1.6 million and conclude a sweep against online affiliate marketers and networks. The sites falsely claimed endorsements from ABC, Fox News, CBS, CNN, USA Today and Consumer Reports.
Many companies’ understanding of and compliance with the FTC Endorsement Guidelines remains lacking, yet enforcements continue.
Wearable Computing Lawsuit
Google Glass Liability? – In what may be a foreboding development, a California woman received a traffic ticket for wearing Google Glass while driving. Many states have broad distracted-driving laws or bans on certain monitors that may apply to Google Glass and similar wearable computing devices.
The Sacramento Bee in an article titled Job Front: Social media are growing recruitment tools reported that “[e]mployers in greater numbers are relying on social media to recruit new talent,” according to Jobvite’s 2013 Social Recruiting Survey. The Sacramento Bee noted that the survey “showed about 94 percent of employers either use or plan to use social media to recruit workers.” It also noted that “Pollsters found that social-network giants Facebook, LinkedIn and Twitter remain the most popular tools to recruit talent, but that employers are also using YouTube, Instagram, blogs and other social media to find new employees. Still, LinkedIn leads the way among those hiring officers polled.”
Additional Resource: The Sacramento Bee; Jobvite
Last month, in KNF&T v. Muller (October 2013), the Massachusetts Superior Court found that a LinkedIn update regarding an employee’s new job was not a solicitation of business in violation of her non-competition agreement, which also prohibited solicitation. In that case, the court denied the former employer’s request for a preliminary injunction finding that the former employee’s LinkedIn update notifying more than 500 contacts about her new job, including contacts she established during her nearly 8 years with her former employer, was not a an impermissible solicitation. This was despite the fact that the First Circuit recently held in Corporate Technologies, Inc. v. Harnett (August 2013), that an email blast to former clients announcing an employee’s new position constituted solicitation in violation of an employee’s non-solicitation agreement.
Notwithstanding the rapidly increasing use of social media, very few courts have addressed the issue of when the use of social media violates a non-solicitation provision. The case law that has addressed this issue over the past few years focuses on whether the former employee has proactively used social media to encourage former colleagues to come to work for, or encourage former clients to give business to, his or her new employer.
For example, in Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp. (June 2011), the Indiana Court of Appeals found that posting an employment opportunity on LinkedIn did not constitute prohibited solicitation. In that case, two software companies entered into a subcontracting agreement in which ENS, an advanced software engineering company, and Hypersonic, a software modification company,
agreed that ENS would acquire certain services from Hypersonic to serve ENS’s own clients. The companies agreed that they would “refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other party.” During their contractual relationship, Hypersonic posted an open position for an outside sales representative on LinkedIn. A field representative for ENS saw the posting and was interested. He reached out to and met with Hypersonic executives and was eventually offered employment,
which he accepted. ENS brought suit against Hypersonic for breach of their agreement.
In determining that there was no unlawful solicitation, the Court of Appeals focused on the fact that the non-solicitation provision lacked a definition of the terms “solicit” and “induce.” Based on the commonly used definitions of these words, the court found that there was no violation because the employee had reached out to Hypersonic. The court further noted that should ENS have wanted to eliminate the possibility of such conduct, it should have provided a definition of “solicit” in future agreements that clearly specified the kind of activity it wanted to prohibit.
In Invidia, LLC v. DiFonzo (October 2012), a popular hairdresser left her position with a salon to work for a competitor. The new salon posted on her Facebook page that she was coming to work for it, and the hairdresser became Facebook friends with eight of her former clients. The Superior Court of Massachusetts (October 2012) held that neither of these actions were solicitations in violation of the hairdresser’s agreement with her former salon and denied a motion for preliminary injunction because there was no evidence that she had actually encouraged her former clients to come to her new salon.
Similarly, relying on Enhanced Network Solutions Group and Invidia, the United States District Court for the Eastern District of Oklahoma held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer in Pre-Paid Legal Services, Inc. v. Cahill (February 2013). The court found that the former employer did not present evidence demonstrating that the former employee’s Facebook posts resulted in the departure of any of his former co-workers, or any evidence showing that the former employee was targeting his former co-workers by posting directly on their walls or through private messages. The former employee’s posts only touted his professional satisfaction with his new employer and their products.
The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, they did not contain any information about the new employer, and they were sent by Twitter, not targeted email blasts by the former employee.
Employers should be mindful of the implications of social media for the protection of their trade secrets and good will and may consider directly addressing the use of social media in their non-competition and non-solicitation agreements with their employees. And employees should not mistake this case law for a free license to promote their new employment on social media, as these cases are limited to their own discrete set of facts.
In early November, an administrative law judge of the National Labor Relations Board dismissed a complaint filed against an employer, finding that the employer did not violate the National Labor Relations Act by withdrawing rehire offers from two employees’ based on their Facebook conversation.
The two employees worked for a non-profit corporation’s teen center. Shortly after the employees were issued rehire letters, they had a Facebook conversation regarding their work at the teen center. The conversation included a large amount of profanity as well as statements that the employees would not ask permission to engage in certain activities; would do whatever they wanted with the center’s funds; and would generally “raise hell.”
Another employee saw the conversation and sent screenshots to the director of the teen center. Letters rescinding the rehire offers were sent to the employees, citing concerns that they would not follow directions and could endanger the children at the teen center.
As in many recent cases, the administrative law judge found that the employees were engaged in “concerted activity” when expressing disagreement with management’s running of the teen center. The judge noted that the Facebook conversation included discussion of (1) how the employees were treated, (2) the employer’s failure to respond to certain employee concerns, and (3) the one employee’s demotion.
not every instance of concerted activity is protected. The judge found that the employer could reasonably and lawfully conclude that the employees’
actions were not protected. The judge noted the employer’s arguments (1)
that its funding from the government and donors could be impacted by the comments, and (2) that the safety of youth served by the teen center could be jeopardized.
While not every social media-related firing may be unlawful, employers should still be aware of the NLRB’s crackdown on social media policies.
On July 30, 2013, the Florida Judicial Ethics Committee issued an opinion stating that a judge running for re-election may create a Twitter account for campaign purposes, but warned of potential pitfalls surrounding social media.
The opinion resulted from an inquiry submitted by an anonymous judge who plans to use a Twitter account to tweet about judicial philosophy, campaign slogans, and the candidate’s background. While the opinion is permissive, it also explains that many of Twitter’s features “could prove problematic” as a judge’s campaign tool:
- Blocking specific followers;
- Re-tweeting and marking tweets as favorites;
- Creating lists of users and subscribing to lists created by other users;
- And direct messaging that could result in ex parte communications.
To avoid these problematic aspects of Twitter, the Committee suggests that the “most sensible way” to use a Twitter account would be for the judge’s campaign manager to create and maintain the account.
The Committee’s concerns reinforce a 2009 opinion regarding the use of social networking sites such as Facebook and LinkedIn. In that opinion, the Committee stated that judges may post comments and other material on their social networking sites, but that judges are prohibited from becoming “friends” with lawyers who may appear before them.
As discussed in a previous post on this blog, opinions such as these represent the more restrictive views of social media. Earlier this year, the American Bar Association issued an opinion giving its stamp of approval to these kinds of online relationships.