NLRB: Nice Companies Finish Last

The National Labor Relations Board (NLRB) has decided that a policy encouraging employees of an Illinois BMW dealership to be courteous to one another violated the National Labor Relations Act (NLRA).  The NLRA prohibits punishing employees for discussing working conditions and, according to the NLRB, the policy did not make clear enough that it did not cover such discussions.

An employee of Karl Knauz Motors who was fired for a Facebook post challenged the handbook rule, which stated that “Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.”

The NLRB’s primary objection was to the last sentence prohibiting language that would injure the dealership’s reputation.

A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work . . . Reasonable employees would believe that even “courteous, polite, and friendly” expressions of disagreement with the Respondent’s employment practices or terms and conditions of employment risk being deemed “disrespectful” or damaging to the Respondent’s image or reputation.

Continue reading

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Plug or Perish

For FVLD’s September Legal Update, Jon Vegosen writes about the NLRB’s controversial stance on some common social media policies.  As Jon explains, these developments raise concerns for employers.

For example, many employers have trade secrets and other confidential and proprietary information. Often such information is restricted to a small group of employees, and for good reason. Yet, the NLRB has flagged as unlawful a social media policy prohibiting the sharing of confidential or proprietary information with coworkers unless they need the information to do their jobs. Likewise, doctors and lawyers owe confidentiality obligations to their patients and clients. Moreover, employers have confidentiality obligations concerning their employees when it comes to laws like the Americans with Disabilities Act. Nevertheless, these important obligations are threatened by the breadth of the NLRB’s pronouncements. Federal law gives companies rights to limit the use of logos and trademarks by third parties. Yet, the NLRB would deny a company this right when a company employee uses his employer’s logo or trademark for “non-commercial use” in connection with protected activities.

Click here to read the Update.

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Lawsuit: Smartphone and Memory Card Seized from Man Recording Police

A Washington D.C. man has sued two police officers for seizing his smartphone with which he photographed a police officer engaging in allegedly “aggressive conduct toward members of the public” after another officer hit a man on a motorbike with a squad car.  His smartphone eventually was returned, but was allegedly missing its memory card.

“Citizen journalism” is on the rise due to easy access to recording equipment afforded by smartphones combined with the ability to instantly broadcast observations via social media.  Courts have recognized this trend and protected individuals’ rights to record matters of public interests like law enforcement officers in action.  Still, those attending protests or other events where they are likely to record police officers should take precautions.  Particularly during mass arrests, officers may not be able to separate bystanders and journalists from rioters.  Some helpful measures include backing up the phone’s memory and labeling phones and memory cards with the owner’s name and contact information and, if applicable, an indication that the owner is a member of the media.   Continue reading

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Online Discussion Sites as Public Forums

Two recent cases deal with whether online discussion sites constitute “public forums” qualifying for additional speech protections.

In Backlund v. Stone, Stone, a website host, first allegedly posted lewd pictures of a teenage girl who he falsely claimed was Backlund.  Later, he tweeted a threat to Backlund (by then an adult) to post actual nude photos of her if she continued talking to a friend of his.  She sued him, and his defense that the lawsuit was a Strategic Lawsuit Against Public Participation (“SLAPP”) failed because California’s anti-SLAPP lawsuit “does not apply to indisputably illegal communications” like child pornography.

He then filed a cross-complaint for defamation based on comments Backlund made to an online magazine about the experience.  Continue reading

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New Illinois Laws Affect Online Privacy

Recently enacted Illinois laws are intended to protect the online privacy of both public and private employees in the state.

The Judicial Privacy Improvement Act (JPIA) is a legislative response to the 2005 shootings of relatives of a federal judge based in Illinois.  Authorities believe that the shooter was seeking revenge after the judge dismissed a lawsuit.   The statute allows judges to request that their personal information – defined as home addresses, telephone numbers, personal email addresses, Social Security numbers, federal tax identification numbers, checking and savings account numbers, credit card numbers, marital status and the identification of minor children – be removed from websites and public documents.   Those who fail to comply with such requests are subject to civil and criminal penalties.  The statute also exempts such information from disclosure under the Freedom of Information Act.

Statutes restricting the publication of information regarding public figures always raise First Amendment concerns. Continue reading

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Music Publisher Seeks Removal of Campaign Ads

Music publisher BMG Rights Management has reportedly filed a notice under the Digital Millennium Copyright Act (DMCA) leading YouTube to remove video of a Mitt Romney campaign ad featuring President Obama’s rendition of Al Green’s “Let’s Stay Together”.  BMG is also seeking removal of other clips of Obama singing the 1972 hit.

The Romney campaign has reportedly re-posted the ad to YouTube competitor Vimeo.

The ad features Obama’s singing in the background while displaying headlines from articles alleging that he “stayed together” with campaign contributors by rewarding them once in office.

As Ars Technica notes, the ad’s use of the song is likely a “fair use” exempt from liability under the Copyright Act.  The political ad uses only the small part of the tune that Obama famously sang during a speech earlier this year and is highly unlikely to affect the market for Green’s original recording.   Continue reading

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IL High Court Shoots Down “Deadwood” Fraud Claim Based on Chat Room Romance

A woman who frequented a chat room devoted to the HBO show Deadwood claimed she found herself caught up in her own fictional western drama when another female fan drew her into a long distance relationship while posing as a man named Jesse James and a cast of several other fake acquaintances of Jesse who corroborated “his” story.  The Illinois Supreme Court, however, recently held that the woman could not recover damages suffered from the alleged “fraud”.

The ordeal allegedly led to significant distress, particularly when a “friend” of Jesse told the woman, Paula Bonhomme, that Jesse had attempted suicide and then that Jesse had died of cancer, halting her plans to move in with Jesse in his supposed Colorado home.  After that, Bonhomme visited Jesse’s friend (actually Jesse under her real name, Janna) in Colorado to see Jesse’s favorite sites, followed by a return visit to Bonhomme’s home.

Expenses allegedly incurred by Bonhomme include thousands of dollars in therapist bills, gifts for Jesse and friends, and expenses related to making her home handicap-accessible for Janna’s visit.  The relationship and particularly Jesse’s tragic death – complete with a final love letter to Bonhomme – also led to Bonhomme’s severe depression.

As we previously discussed, the Illinois appellate court upheld Bonhomme’s claim against “Calamity” Janna for fraudulent misrepresentation. The appellate judges debated whether reliance on a chat room user’s representations regarding her identity can be justifiable (justifiable reliance is a key element of the tort) with the majority holding that Bonhomme was entitled to rely on Jesse’s elaborate story.

The reprieve was short lived, however, because the Supreme Court sent the case on to the last roundup. Continue reading

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Plug or Perish

Entrepreneur Magazine’s Daily Dose recently spoke with Damon Dunn about two recent cases on First Amendment protection for public employees’ Facebook “likes”.  We previously discussed the cases here.

Should a “Like” be protected as freedom of speech? Damon E. Dunn, a partner in the law firm Funkhouser Vegosen Liebman and Dunn Ltd., says public employees can bring retaliation claims based on First Amendment rights because the government employs them. Maybe not when speaking on behalf of their employer as part of their job duties, but certainly when speaking as private citizens.

. . . .

In the sheriff’s department firings, the judge found that the “Like” button was too generic to constitute expressive speech. Had it qualified as speech, the judge still might not have had enough context to ascertain whether the workers expressed an opinion qualifying for protection, Dunn says.  The Library of Congress employee, Dunn says, might be able to show that the page he “liked” was sufficiently specific so that one can infer his opinion involved a matter of public concern.

In cases involving private employees, Damon notes, “likes” may turn isolated statements into protected concerted activity protected by the National Labor Relations Act.

You can read the full Entrepreneur article here.



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Public Employees Sue After Being Fired for Facebook “Likes”

A federal judge in Virginia recently held that “liking” a Facebook post is not sufficiently expressive to warrant First Amendment protection.  One of the plaintiffs in Bobby Bland et al. v. B.J. Roberts alleged he lost his job with a sheriff’s department for liking a Facebook page belonging to the sheriff’s political opponent and characterized the “like” as a “statement of support”.  The court disagreed

[I]n cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record . . . Simply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection.    Continue reading

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Prosecutors Entitled to Occupy Protester’s Twitter Account

In a hashtag-heavy opinion, a New York judge “#denied” an Occupy Wall Street protester’s motion to quash a subpoena to Twitter for his account records.

Twitter informed the protester, Malcolm Harris, upon receiving the subpoena and, once he filed his motion to quash, said it would not comply with the subpoena until the motion was decided.

The judge focused on whether Harris – who was arrested during a protest in Brooklyn – had standing to quash a subpoena to a third party, either with or without being granted leave to intervene.  He analogized to cases holding that an individual has no right to challenge a subpoena issued to a bank or telephone company for its records because such records belong to the company, not the customer.  The court also quoted from Twitter’s terms of service Continue reading

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Toll of “Facebook Victims” Mounts

Although social media is no longer a new phenomenon, evidently even people who should know better still have not grasped that nothing on the Internet is confidential.  What’s more, there is no sure demarcation between private postings and those that spill over onto your resume like an indelible coffee stain.

Exhibit A is a high level General Services Administration official who recently made news (and got suspended) after pictures of his family’s taxpayer-funded “business trips” to Hawaii and Las Vegas showed up on Facebook.  A post by his daughter reportedly included comments like “The number one BEST part of the vacation. AMAZING.  Snorkeling at Black Rock in Maui” and photos of the official, Jeff Neely, grinning from a hot tub.  Emails also have emerged where Neely referred to a government-funded trip as his wife’s birthday present.  Neely has since developed an intimate acquaintance with the Fifth Amendment.

Next up is the school board member who, when contacted by a reporter about a racist post on his Facebook page, blamed his teenage son.  Continue reading

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Maryland Takes Lead in Banning Employers from Demanding FB Access

Maryland recently became the first state to ban employers from requiring prospective employees to let them access their social media accounts.  The law was passed in response to protests after the state demanded corrections officers’ social media passwords to search for gang affiliations.

Even in states where reviewing prospects’ Facebook accounts remains legal, employers may want to think twice before incorporating the practice into their hiring procedures.  Employers who require access to private pages risk losing qualified applicants who have nothing to hide but object to the intrusiveness.

There are also legal risks: for instance, a discrimination plaintiff needs to show that the employer knew he was a member of a protected class.  A potential employer who otherwise would not have known the job applicant’s religion or race is likely to inadvertently find out while scouring social media.  An employer who retains applicants’ or employees’ login information could also be subject to a lawsuit if the information is leaked or used by someone else in the office for improper purposes.   Continue reading

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Homeless Hotspots Create PR and Wage Controversies

Digital media opens up a world of possibilities for marketers but also can lead to PR nightmares when creative campaigns backfire by losing touch with real-world sensibilities.

The marketing agency BBH recently sparked an online debate by hiring homeless people to carry mobile Wi-Fi devices and wear t-shirts declaring “I’m [name], a 4G hotspot” and listing an access code.

The marketer compared the project – launched during the South by Southwest technology conference in Texas –to street newspapers sold by homeless vendors and said it inspired an “entrepreneurial spirit.”  While critics felt the project “symbolizes everything that’s awful about both South by Southwest and living in America in the 21st century” by turning “people [into] platforms” many of the homeless participants defended it in media interviews.

The New York Times reported that participants were paid $20 per day (as well as the donations they receive from Wi-Fi users) but BBH claims participants were guaranteed a minimum of $50 per day for six hours of work and that, based on the donations so far, the participants’ take will “significantly” exceed that amount.

It is nonetheless questionable whether BBH has complied with minimum wage obligations under the Fair Labor Standards Act.  Continue reading

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Plug or Perish

The Internet continues to generate localized forums for businesses and professionals to interface with the public and each other.  For example, FVLD Founding Member Vance Liebman was recently profiled by LinkedLocalNetwork, as a “different kind of lawyer”.  Vance also can be viewed discussing recent legal developments on, a members-only network allowing CEOs to interact with each other online.  The network originated in Philadelphia, expanded into Chicago last year and has other cities planned.  You can watch Vance’s interview here.

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Courts Mull Identifying Anonymous Commenters

Two recent cases deal with the protection of website commenters’ identities, one in a traditional media context and the other dealing with pseudonymous Tweets sought by a grand jury.

In re: Indiana Newspapers Inc. involved a comment to a story titled “Junior Achievement faces questions, audit” regarding financial troubles facing a culinary school construction project. Continue reading

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