Proskauer Rose LLP recently released its third Social Media in the Workplace Around the World 3.0 survey. Drawing 110 responses from a broad range of businesses, the survey reveals interesting trends in how businesses are addressing the ever-increasing use of social media in the workplace.
In terms of social media policy implementation, while 20% of businesses still don’t have social media policies, the overall number of businesses with social media policies is on the rise. That percentage can be compared to Proskauer’s 2011 survey in which nearly 45% of businesses did not have social media policies in place.
However, as many of you already know, simply having a social media policy is only half the battle; the social media policy must also be comprehensive enough to cover multiple risks. The survey revealed that many businesses may not be drafting comprehensive policies. For example, while 80% of businesses reported that their social media policy protected against misuse of confidential information, only 17% of those with policies have provisions that protect them against ex-employees who may misuse social media. Additionally, only 64% of businesses reported that their policies address harassment via social media.
In terms of enforcement, 70% of businesses reported disciplinary action against social media misuse in the office and 36% of businesses block access to social media sides, compared to 27% in 2012. Additionally, 41% of businesses monitor the use of social media sites at work, compared to 36% in 2012 and 28% in 2011. While 43% of businesses permit employees to access social media at work, this is a decrease of 10% from the 2012 survey.
Overall, trends indicate that while businesses are taking social media use seriously, policies still have some holes that should be addressed to mitigate against certain risks, such as unlawful harassment. Additionally, while the number of businesses monitoring and even blocking social media is on the rise, businesses should be careful that any monitoring of social media does not expose them to liability under state and federal privacy or labor relations statutes.
How do the survey results compare to your company’s experiences with employee social media use? Do you see the trends changing in the near future?
Authored by Kristen Barlow Rand.
According to the Miami Herald, a Florida teenager’s Facebook posts cost her father an $80,000 settlement in an age discrimination case against his former employer, Gulliver Preparatory School.
The settlement, not surprisingly, contained a confidentiality clause requiring the “terms and existence” of the agreement to be kept private. Not letting this get in her way, the daughter, Dana Snay, posted to her 1,200 Facebook friends, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
After the school learned of the Facebook posts, its attorneys notified Snay that the school would not pay the settlement. Snay then sued to enforce the settlement, but the school appealed and won. With this, I wonder whether the breach of the confidentiality provision and subsequent refusal to pay voided the entire settlement. That is – does “Papa Snay” still have a claim against Gulliver – or did he lose the payment and any chance of asserting his claims?
As someone who drafts settlement agreements all the time and whose clients are often extremely concerned about confidentiality – just like the preparatory school in this case – it was nice to see the court conclude that a party’s breach of confidentiality can have serious consequences. This case also serves to underscore the need for everyone (including children) to “think before you post.”
Do you think the school made the right decision to void the settlement agreement or should they simply have let the post go?
In early 2013, Snapchat, an app that allows users to send self-destructing photos, became the second-most popular iPhone app with approximately 50 million snaps a day. While Snapchat is aimed at a younger non-business audience (think teens sending “selfies” to their friends), we had recently been talking about the potential legal implications arising from employee use of Snapchat. In the midst of that discussion, along comes Confide. Confide is a free text-based iOS app that permits users to send text/email messages to others which disappear as soon as they are read by the receiving party (the app requires iOS 7.0 or later and is optimized for the iPhone 5).
Confide targets its service to professionals who want to discuss personal, business or legal issues without the fear of an evidentiary trail. In the “Frequently Asked Questions” section of its website, Confide provided its “good use cases for Confide” as follows:
1. Anytime you send an email or text saying “Confidential — don’t forward”
2. Anytime you respond to an email or text with “I’ll call you”
3. Anytime you say “Can you send me your personal email; I’d prefer this conversation not be on work servers”
The FAQ’s go on to state that good uses could include discussions about “[j]ob referrals, HR issues, deal discussions, and even some good-natured office gossip.”
I admit the thought of business messages being sent purposefully so that employees (including management) can have “off-the-record” discussions – that immediately disappear – causes some level of anxiety for the employment lawyer side of me. But, let’s look at how this app works before I provide any thoughts on its business use.
So – in light of all of those features, what do businesses need to be thinking about in deciding whether to embrace or reject this new technology?
- Confide grants users the ability to engage in private communications that won’t be stored anywhere. This could be used for communications that really don’t need to be permanently recorded, such as where to meet for lunch, whether you are attending a particular meeting, or the like.
- The impermanence might be also be good if employees are simply venting to each other about the workplace – providing an outlet for employees to let off harmless steam without those remarks coming back to haunt them, or their employer.
- Confide grants users the ability to engage in private communications that won’t be stored anywhere. This feature and the app’s impermanence might raise problems for businesses required by law to retain certain types of records or preserve documents or data for litigation purposes, or which are are prohibited from engaging in certain types of communications.
- From an employment standpoint, these ultra-private communications could lead to inappropriate discussions between employees – leaving the employer left with trying to work out a “he said, she said” situation without any concrete evidence.
- Confide requires the user to grant complete access to their Address Book. This should raise concerns for companies seeking to protect certain contact information – such as client information. Clients too might not appreciate their contact information being shared freely with Confide.
- Employees may also make improper use of the app – whether to share confidential information, to make plans to go work for a competitor to name just a few, to share confidential information with that competitor, to discuss important internal matters that really ought to be recorded in some fashion, and the list goes on.
In light of the pros and cons above, businesses will have to decide whether they want to encourage “off-the-record” discussions between employees and permit the use of apps like Confide. At the very least, the advent of apps like Confide should serve as a reminder for business to take affirmative steps to keep current with all new technologies to protect business interests, trade secrets, and regulatory and legal obligations. Our next post will address some affirmative actions you can take to stay on top of new technologies.
Does your business or its employees use applications like Confide? If so, how do you regulate the use, and the disappearing nature of the documents? As always, we are interested in your thoughts.
Can a Facebook post count as a sexual harassment complaint to an employer?
The Tenth Circuit recently said no in Debord v. Mercy Health Sys. Of Kan., Inc., 2013 U.S. App. LEXIS 23733 (10th. Cir. Nov. 26, 2013). The case involved Sara Debord, a nuclear-medicine technician, who claimed her employer, Mercy Hospital in Independence, Kansas, retaliated against her for making a complaint of sexual harassment. The “complaint” in question was a Facebook post Debord made stating:
“Oh, it’s hard to explain…basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas…and [her supervisor] tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus [her supervisor] adds money on peoples [sic] checks if he likes them (I’ve been one of them)…and he needs to keep his creapy [sic] hands to himself…just an all around d-bag!!” (Emphasis added.)
The post was viewed by Debord’s co-workers, who reported it to HR. HR met with Debord, and she repeatedly denied making the posts. When she eventually admitted she made the post, HR asked her about the “creepy hands” comment. She said that she did not think that her supervisor sexually harassed her, but instead he was just “a pervert.” Debord was eventually terminated for failing to cooperate with HR’s investigation, lying about the posts, and disrupting the workplace by sending false messages about the investigation to other employees.
Debord then sued Mercy Hospital, for, among other things, retaliating against her for making a claim of sexual harassment. She claimed that the Facebook post was her way of reporting sexual harassment, and Mercy’s decision to terminate her for the post was unlawful. The Tenth Circuit rejected her argument, finding that Debord’s Facebook post “falls short.” The court explained that Mercy had an “otherwise flexible reporting system,” and that her post, by itself, did not provide any notice to Mercy. The court noted that Debord did not attempt to avail herself of Mercy’s reporting system and, when confronted, denied making the posts. Based on her conduct, the court refused to believe her argument that she was attempting to report sexual harassment to Mercy in a meaningful way and denied her retaliation claim.
Much of the court’s decision rested on the employee’s conduct in denying that she made the posts and failing to follow the employer’s reporting policy. Under different circumstances, might there be situations in which a Facebook post could constitute a report of sexual harassment to an employer? What if the employer did not have a good reporting system in place?
Authored by Kristen Barlow Rand, Associate, Fredrikson & Byron, P.A. Thanks, Kristen, for the great post!
The saga of Facebook firing cases continues. In this episode, a non-profit organization operating after school programs for high school students terminated two employees who engaged in an extensive Facebook trash talk session about their employer, screen shots of which were sent to Human Resources. (See NLRB v. Richmond District Neighborhood Center.) After the employees were terminated, they filed an unfair labor practice charge with the NLRB.
Interestingly, the employer actually prevailed in this case and the administrative law judge found that the Facebook posts were not protected under the National Labor Relations Act. Here’s a sampling of the posts between the two teen center employees:
Moore: U goin’ back or no??
Callaghan: I’ll be back, but only if you and I are going to be ordering shit, having crazy 10 events at the Beacon all the time. I don’t want to ask permission, I just want to be LIVE. You down?
Moore: I’m goin’’’ to be a activity leader I’m not doing the t.c. [sic] let them figure it 15 out and they start loosin’ kids I ain’t help’n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to 20 graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool shit, and let them figure out the money. No more Sean. Let’s [f*&^] it up. I would hate to be the person taking your old job.
Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho [sic] shawn gone its still hella stuck up ppl there that don’t appreciate nothing.
Callaghan: You right. They don’t appreciate shit. That’s why this year all I wanna do is shit on my own. Have parties all year and not get the office people involved. Just do it 35 and pretend thay [sic]are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help.
Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids
Callaghan: hahaha! [F*&^] em. Field trips all the time to wherever the [f*&^] we want!
Once the organization learned of these posts it was understandably upset – what would the parents of the teens who attended the program think – not to mention program funders? And how could they trust these employees to do their jobs?
These were the arguments the organization made in its defense to the employees’ unfair labor practice charge. They argued that the Facebook posts were so “egregious” that they went beyond the bounds of what is protected under the NLRA. And the ALJ agreed with them, finding that the fact that the organization believed that the Facebook comments jeopardized the program’s funding and the safety of the youth it served meant that the employer “could lawfully conclude that the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.”
So, a victory for the employer. But what does that mean for other employers facing situations where employees bad mouth the organization on Facebook or other social media sites?
We still think that any time an employer is considering terminating an employee based on the employee’s social media activity, the employer needs to carefully consider whether the posts might be protected and consider seeking legal counsel for assistance in wading through these tough issues. What are your thoughts?
The texting/tweeting scandals just keep coming – and once again this one is all true. This unfortunate episode comes from the Coatsville Area School District in Pennsylvania. The scandal highlights technology, ethics and employment issues, as well as the complexities that IT staff must navigate when dealing with evidence of alleged immoral and illegal activities on company-owned devices. In this first post, we will look at the issues businesses face when employees engage in nefarious activity on company-owned electronic devices.
So, let’s take a look at some of the facts. The Coatesville, Pa., School District Superintendent Richard Como and Coatsville Area High School Athletic Director Jim Donato recently resigned following the disclosure of their inflammatory texting conversation. The pair had exchanged a myriad of racist and sexist slurs directed at students, faculty, and administration officials on district-owned cell phones. In one appalling exchange, Como and Donato used fourteen slurs using the “n” word. In another text, the pair allegedly discussed financial misdealing within the district and monetary kickbacks.
The district’s IT Director (Hawa) discovered the racist slurs while performing a routine data transfer on Athletic Director Donato’s district-owned cell phone. Mr. Hawa reported the incident to the district’s deputy superintendent, and then to the district’s attorney. News reports confirm that Hawa ultimately sent the transcript to the Chester County District Attorney after he became concerned that some Coatsville school board members and their attorney were attempting to cover-up the texting scandal. See Daily Local News, Coatsville school officials sighted at courthouse, dailylocal.com, October 18, 2013. The District Attorney initiated a grand jury proceeding into the texting scandal, the alleged financial kickbacks, and other alleged improper activities of the school employees. See abclocal.go.com, Grand jury investigation into Coatsville texting scandal, October 15, 2013. The NAACP also conducted its own hearing into the incident revealing additional claims that the district discriminated against low-income and minority families, as well as disabled children. The NAACP plans to investigate the claims made at the hearing for possible legal action against the district. See philly.com, Coatsville school board denies accusation of bias, October 18, 2013.
So, what are the lessons learned from this scandal? First, there are lessons for anyone who uses social media, electronic devices, etc.:
- In the digital age, everyone must understand that electronic communications will NOT remain private.
- Emails and texts – whether good or bad – do not disappear. As discussed in prior posts, forensic experts can often easily retrieve “deleted” information from a cell phone or computer. If you would not say what you are saying in front of a judge (or your grandmother) – don’t post it!
- Don’t use your work provided device as if it were your own device. As happened here, what happens if you turn in that device for a routine data transfer? What will someone find? Company officials and IT staff – under appropriate policies and procedures – will have the right to investigate information contained on company-owned cell phones and computers. Employees must understand that even though they might be permitted to use a company-owned device for business and personal purposes, that device, and the content on that device, still remain the property of the business.
Second, there are important lessons for private and public corporate entities:
- Implement policies and procedures that permit you to monitor, inspect and act upon inappropriate text messages or interactions.
- Implement policies and procedures that outline the circumstances and procedures for reporting alleged illegal activities. These policies could spell out the appropriate chain-of-command for reporting this activity, as well as the individual in the organization who has the authorization to discuss company matters with outside law enforcement officials.
- Implement policies and procedures on appropriate and inappropriate use of company provided devices. Then, train your employees on what that means – clearly not everyone understands this concept yet.
Third, evidence obtained from a company-owned device might be used in a termination decision, however, there could be consequences beyond loss of employment for inappropriate text messages:
- For example, the former Coatsville Superintendent may find out his conduct might negate the school district’s obligation to pay-out his retirement pension. I bet that Como never thought that his texts with the Athletic Director could ever jeopardize his reputation, career, and ultimately his retirement pension.
- Depending on the content of the inappropriate exchanges, district attorneys could use employee text messages to prosecute employees or their employers under criminal statutes. Just think of what may face the Superintendent – “Theft by deception or extortion, theft of services, tampering with public records or information, are a few stated crimes listed under the forfeiture act that could cause Como to forfeit his pension.” See Daily Times News, delcotimes.com, Former Coatsville schools chief at center of racist text saga files for pension, November 6, 2013.
- The EEOC, local departments of human rights or the NAACP may use those text messages to support claims of discrimination, retaliation or unequal treatment against the employer.
In short, employees need to exercise some modicum of restraint in their communications. Employers, knowing that employees may not do so, need to have policies in place to respond to inappropriate and possibly illegal conduct by employees. Are you prepared?
You really can’t make this stuff up. The story sounds like the plot of a D.C. beltway suspense novel – senior White House director involved with national security and Iranian nuclear negotiations caught and fired after anonymously leaking sensitive national security information, and lobbing insults at Capitol Hill, White House staffers and politicians via Twitter. The abrasive tweets criticized government policies, and even the actions of the director’s boss, the President of the United States. But someone did not make it up…sadly, it is all true. See White House Official Fired Over Anonymous Tweets, Reuters.com, October 23, 2013.
Jofi Joseph, was the director of nuclear non-proliferation on the White House National Security Council staff. But his employment was terminated after the government discovered that for two and a half years, Joseph anonymously posted hundreds of the blunt tweets like those outlined above. According to news reports, Joseph described himself in his Twitter bio as a “keen observer” of national security, noting that he was unapologetic for saying what others only thought (the Twitter account has since been shut down). See White House Staffer Fired for Tweets Criticizing Bosses, NBCWashington.com, October 23, 2013. The White House confirmed Joseph’s termination.
So have these highly publicized terminations deterred employees from posting negative comments regarding their employers? Probably not. Yet, the lesson from this recent termination (and so many of those in the past) is that even an employee’s anonymous posts can be uncovered and have a significant negative impact on that individual’s job security and reputation. In this day and age, individuals should not rely upon the supposed anonymity of the internet to protect their identities. As an aside, Joseph’s antics could also impact others… Joseph’s wife is currently employed in a high profile job on Capitol Hill. I wonder whether Joseph had any thought about how his actions might affect his wife’s career. Whether he thought about it or not, the circumstances surrounding his termination might affect how others view his family. When conducting training on social media use for employees, I always caution employees to consider all the ramifications of their actions before proceeding down the road of negative posts. This situation certainly highlights why this guidance is important.
From an employment perspective, companies should consider how their social media policies handle employees’ negative posts or, more importantly, the leak of sensitive information. Employers should consider having procedures in place to investigate and address potentially damaging posts. As you all know from past posts, certain laws, e.g. the National Labor Relations Act, may protect employees for negative comments on the internet (see A Reminder to Avoid Prying Into Private Group Facebook Pages!) but not all employee posts are protected. Employers should be prepared to act on those that are not – particularly if the posts contain confidential information.
Have you ever personally posted something you later regretted, or have you had to address negative employee posts in the workplace? Do you have the policies and procedures in place to handle these situations? As always, we welcome your insight.
Do private Facebook wall posts fall within the protection of the Federal Stored Communications Act (“SCA”)? The United States District Court of New Jersey ruled they do in Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-CV-03305 (WJM) (Aug. 20, 2013). So what is the SCA and how could the Court’s ruling affect your HR decisions?
Here is the case in a nutshell. Plaintiff Deborah Ehling, a registered nurse and paramedic, frequently posted comments and photos to her Facebook wall – a wall that limited access to only her Facebook friends. Plaintiff was not shy with her comments. For example, after a shocking shooting in Washington D.C., Plaintiff posted the following:
“[a]n 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning killing an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards ….. go to target practice.”
Plaintiff’s employer, Monmouth-Ocean Hospital Service Corp. (“MONOC”), received a copy of the post from a co-worker and Facebook friend. As many of you likely know – most employers learn about employee Facebook posts because their so-called “friends” turn them in.
After receiving the post, MONOC suspended Plaintiff with pay stating her comments reflected a “deliberate disregard for patient safety.” Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”). The NLRB found MONOC did not violate the National Labor Relations Act, and that no privacy violation occurred as the post was sent unsolicited to MONOC management.
MONOC ultimately terminated Plaintiff for other disciplinary violations, unexcused absences, and her failure to return to work after numerous FMLA leaves of absences. Ehling then filed suit in federal district court alleging, among other things, that MONOC violated the SCA, and the common-law claim of invasion of privacy for inappropriately accessing her Facebook post.
So, let’s step back a minute. What does the SCA do? The purpose of the Act is to protect information that a “communicator” meant to keep private. The SCA applies to: (1) electronic communications; (2) that were transmitted via an electronic communication service; (3) that are in electronic storage; and (4) that are not public. Given this, the Ehling Court ruled that Facebook posts configured to be private – not open for general public viewing – met all four criteria. “The Court note[d] that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on their Facebook walls.”
Although Ehling chose to keep her Facebook wall private, and hence her posts were covered under the SCA, the Court determined the “authorized user exception” applied. The authorized user exception applies where (1) access to the communication was “authorized,” (2) “by a user of that service,” (3) “with respect to communication … intended for that user.” Each prong of this exception was met in the Ehling case. Access to Ehling’s Facebook posts was “authorized” as her co-worker voluntarily – without solicitation or coercion – provided copies to management. The co-worker was also a “user” under the exception as he had a Facebook account, and Plaintiff had friended him. Plaintiff intended her Facebook rants to be viewed by her friends – including all of her Facebook friends at work. The Court, therefore, dismissed Ehling’s claims under the SCA. Interestingly, Ehling’s common law claim for an invasion of privacy into her Facebook account also failed. The Court, just as with the SCA claims, found that there was no intentional intrusion into her Facebook account.
So what might an employer learn from Ehling v. MONOC? First, at least one court found that an employee’s private Facebook posts fell within the protection of the SCA, and that accessing them without authorization might open up the employer to liability. Second, how management accesses, or receives copies of, the employee’s Facebook post matters. If management solicits, or coerces, an employee to provide copies of, or access to, another’s Facebook posts, or asks the employee to login to Facebook to view the other employee’s account, the SCA exception might not apply – the access might not be “authorized.” But if, as in Ehling, a co-worker voluntarily provides information to management without strings attached the access might fall within the “authorized user” exception.
This case should remind all Facebook users to think about who their Facebook “friends” are…would your “friend” turn you in to an employer for a thoughtless Facebook comment? Food for thought.
Do school districts need help with monitoring students’ social media behaviors to prevent bullying, threats, acts of violence and self-harm? Several districts believe so. Following a pilot program, Glendale Unified School District in Glendale, California recently hired Geo Listening to monitor and report on the cyber-activity of over 14,000 middle and high school students.
According to Geo Listening’s website, their mission is to “provide more timely and relevant information to school administrators so they can better intervene in the lives of children.” The company’s monitoring service analyzes and reports on the social media activity of students from their public posts. Geo Listening then provides a daily report of conduct such as bullying, cyber-bullying, despair, hate, harm to self or others, crime, vandalism, substance/drug abuse, and truancy. What to do with the monitored information is then left to the discretion of the school district. Geo Listening simply hunts and gathers for the data. Despite this, the program has raised some concerns over privacy and free speech rights by students.
Yet, school districts do not provide a list of students to Geo Listening. Rather, the company uses “deductive reasoning to link public accounts” to the students. LA Times, Glendale district says social media monitoring is for student safety, (Sept. 14, 2013). Geo Listening declined to articulate what that means and how that is accomplished. However, if the school district does not provide student names to Geo Listening, or reveal private confidential information in the monitoring process, then the district is not likely violating any privacy laws. Indeed, many employers hire companies to review public social media posts of applicants or employees. (See More Risks to Job Applicants with Questionable Social Media History – where we talked about Social Intelligence, a company which performs social media background checks on applicants for employers).
Geo Listening also contends it does not violate student privacy – it neither hacks into students’ accounts nor peeks into private communications or emails. According to Geo Listening, the students themselves make the information public – the company simply monitors where and what kids communicate. “Parents and school district personnel – they are not able to effectively listen to the conversation where it’s happening now,” Geo Listening CEO told CNN, California school district hires firm to monitor students’ social media, (Sept. 15, 2013). Geo Listening believes its service bridges this communications gap without violating any privacy or free speech rights.
In the end, despite the criticisms and questions – has monitoring Glendale’s students helped? Superintendent Richard Sheehan certainly believes that the monitoring will assist the district in providing a safer environment for students. Recently, the district was able to intervene on behalf of a student who had expressed a desire on social media to end his life, and to date, the district has not commenced any disciplinary action for conduct reported under the monitoring program – even against a student who posted a photo of himself holding what turned out to be a fake gun. Sheehan’s staff simply talked with the student’s parents about the dangers of posting those types of photos online. See, CNN, California school district hires firm to monitor students’ social media, (Sept. 15, 2013).
What do you think? Should school districts look at all student behavior – in and out of the classroom? As we have discussed previously, social media platforms are public venues. Information disclosed is no different than carrying on a conversation in a public place. Regardless, when, how and why we look at that information becomes an important question to ask. How would this apply in the employment context? Should employers be monitoring the communications of its employees online – and what information would employers be looking at? As always, we welcome your input.
Does clicking the “Like” button on Facebook amount to protected speech under the Constitution? According to a ruling on Wednesday from the Fourth Circuit, yes, it does. In fact, according to the Court, “it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
The Court’s decision in Bland v. Roberts doesn’t have any direct impact for private employers because it solely deals with the First Amendment rights of a group of public employees’ from the Sheriff’s office in the City of Hampton, Virginia. However, we have been waiting for this ruling to see how the Court viewed the legal impact of “liking” something or someone on Facebook. We wondered whether the Court find that one mouse click equates to conduct that is protected under the law?
So, let’s take a look at the background of this case. The dispute arose because a group of employees refused to support their boss – the local Sheriff – in his reelection campaign and instead expressed support for his opponent. According to the employees, that support cost them their jobs. After the Sheriff won reelection, he refused to reappoint the employees and they sued claiming the Sheriff violated their First Amendment right to free speech.
The employees expressed their support for the other candidate in various ways, but the one that interests us is the employee who “liked” the opposing candidate’s Facebook page. Prior to the appeal to the 4th Circuit, the district court had found that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”
But the Court of Appeals disagreed noting that when the employee clicked “like”, several additional things happened. First, the candidate’s campaign page’s name and a photo of the candidate were added to the employee’s profile, which other Facebook users could view. Additionally, Facebook issued a notification that the employee liked the candidate’s campaign page, and the employee’s name and profile photo were added to the candidate’s campaign page’s “People [Who] Like This” list.
The Court held that the fact that “a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”
Several things about this case interested me. For example, how will this case be used in other legal contexts? Presumably, the National Labor Relations Board will jump on this case to support the notion that “liking” something on Facebook constitutes protected concerted activity. Additionally, there was such a stark contrast in how the district court thought about a Facebook “like” versus the Court of Appeals – how will other courts view similar activity?
The district court seems to have focused on the mechanics – liking is just clicking a button – but the Court of Appeals really dug into the implications of that mouse click, engaging in a multi-page analysis of “what it means to ‘like’ a Facebook page.” Reading, in a court opinion, a lengthy explanation of how Facebook works, what users do to log on and create a profile, etc. is rather amusing since much of what the Court included seems so obvious to the rest of us, but I give them credit for taking the time to do a careful analysis.
What other actions on Facebook might be considered protected under various laws? What about being “tagged” in a photo at a political event or a fundraiser – would that be enough to show an employee’s support for a particular cause? It will be interesting to see how this all unfolds. As always, if you have any thoughts, please share them with us.
Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.