BY: MICHAEL J. DAVEY, ESQ. Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. 344 West Front Street Media, PA 19063 (610) 565-3700 www.paemploymentlaw.blogspot.com firstname.lastname@example.org @PaEmploymentLaw SOCIAL MEDIA PLUS OMG!
“ The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”
City of Ontario v. Quon , U.S. Supreme Court (6/17/2010)
During oral arguments in Quon , Chief Justice John Roberts asked (seriously) what the difference was “between email and a pager?”
Prohibiting employees from talking about company business; posting anything they would not want their manager or supervisor to see or that would put their job in jeopardy; disclosing inappropriate or sensitive information about employer; or posting any pictures or comments about employer or employees that could be construed as “inappropriate.”
These types of broad policies could all be interpreted or applied in such a way so as to prevent or foreclose employees from engaging in concerted, protected activities or collectively bargaining through social media.
NLRB found ambulance company’s termination of employee who had posted negative remarks about her supervisor on employee’s personal Facebook page, which drew supportive comments from employee’s co-workers, was unlawful.
NLRB found car dealership violated NLRA when it fired salesperson for posting Facebook photos and comments criticizing the inexpensive food and drinks served by employer at a sales event – criticisms that had been discussed among the sales personnel in attendance.
NLRB found newspaper’s firing of reporter who had repeatedly posted inappropriate Tweets about homicides in the city and about a local TV station, despite being told by newspaper to stop, was lawful - none of the Tweets related to the terms or conditions of reporter’s employment.
NLRB found that restaurant was not prohibited from firing a bartender for unilaterally posting a Facebook comment about the low amount of money he was earning, along with an inappropriate comment disparaging the restaurant’s customers.
Bartender posted that he hadn’t had a raise in 5 years and was doing waitresses’ work without tips. He also called the customers “rednecks” and that he wished they “choked on glass as they drove home drunk.”
NLRB found that nonprofit facility for the homeless was permitted to fire employee who worked with residents with mental health issues, because employee had engaged in Facebook conversation while on duty in which she made disparaging comments about some of the residents.
Employee post : “My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh.”