Delaware Employment Law Blog

Employment-related background searches are commonplace today. For the past few years, there has been quite a bit of controversy over background searches that include searches of social-networking sites, such as Facebook and Twitter, for information about potential job candidates.

Personally, I’ve spoken to only one employer who outsources social-media background checks to a third-party vendor. I talk to a lot of employers about this topic, so I’d guess that there aren’t many engaging in this practice and probably for good reason. One of the features of searching online for information about candidates is that it’s free, which would be eliminated if outsourced.

Of course, there are risks that come with these searches, too, particularly if not done properly.
I’ve written about the risks and benefits extensively and have detailed the best way an employer can conduct these searches with minimal legal risk. A different way to minimize risk is by outsourcing these social-media searches.

This idea may seem even more attractive—despite the added costs—thanks to the Federal Trade Commission. According to Kashmir Hill’s blog on Forbes.com, the FTC investigated a company that performs these social-media background searches, Social Intelligence Corp., and concluded that its background checks complied with the Fair Credit Reporting Act. The FTC determined that Social Intelligence Corp., as a vendor for employers, may continue to search for Facebook photos and profile information, provided it continues to do so in a way that complies with the FCRA. In other words, the “old” rules still apply—even in the world of new media.

For more information about how employers can integrate social-networking searches into their job-screening process, see my three-part article on Screening Job Applicants With Facebook, Part 1, Part 2, and Part 3

A new opinion from the Delaware Superior Court sheds light on when off-duty conduct justifies an employee’s termination for purposes of denying unemployment benefits. Because Delaware is an at-will state, it is well established that an employer may terminate an employee for off-duty conduct. However, an employer must have “just cause” for termination in order to avoid payment of unemployment benefits. The Superior Court’s opinion clarifies that an employee’s off-duty conduct must have a non-speculative impact on the employer’s business in order to constitute “just cause” for termination.

A Hairy Situation

The case of Michael Christopher Designs v. Willey (PDF) revolves around the termination of a receptionist at the Michael Christopher Salon (the “Salon”). The Court’s recitation of facts indicates that the receptionist, Nicole Willey, engaged in a “heated and profane” argument with one of her co-workers, Dottie. The argument occurred during non-work hours, via text message, and stemmed from an incident where the Salon management had confronted the women about alleged sharing of prescription medication with another employee. The two employees then exchanged a string of profane and aggressive comments going in both directions, but Willey’s text messages included threatening language, such as “Hope u aint at work 2mor. Ur gonna b sorry.”

Following the employees’ heated exchange, Dottie went to work and shared select text messages with her supervisor, John Przbylski. Mr. Przbylski then shared the messages with his supervisor, Betty Armstrong. Both Mr. Przbylski and Ms. Armstrong spoke with Willey and Dottie, and then terminated Willey’s employment. Willey subsequently filed for unemployment benefits.

A claim for unemployment benefits receives several levels of administrative review by the Delaware Department of Labor, before it is reviewed by a Court. Benefits will be denied only if an employer had “just cause” for its decision to terminate an employee. Just cause may exist where an employee engages in “a willful or wanton act in violation of the employer’s interest.”

Willey’s claim was reviewed first by a Claims Deputy, and later by an Appeals Referee, both of whom denied benefits. The Appeals Referee found that the Salon had terminated Willey for just case, arising out of her frequent tardiness and harassment of other employees via text message. Willey then appealed to the Unemployment Insurance Appeals Board (the “UIAB”). The UIAB reviewed the evidence, and concluded that the Salon did not have just cause, because it did not present sufficient evidence to show that Willey’s conduct had an actual detrimental impact on any of its interests as an employer. The salon appealed the UIAB’s decision to the Superior Court.

Hair Me Out

In its appeal, the Salon raised several issues, including whether there was a sufficient nexus between Willey’s off-duty conduct and her workplace performance. In analyzing whether Willey’s conduct was sufficiently detrimental to the Salon to constitute just cause for termination, the Court considered several factors.

First, the Court noted that neither Mr. Przbylski nor Ms. Armstrong found Willey’s text messages to be so threatening that they called the police, or undertook any measures to keep her out of the Salon. Consequently, the Court concluded that the threats had not impacted the employer in a substantive way.

Second, the Court considered past practice. Willey testified before the UIAB that the Salon had a general policy of allowing employees to work their differences out without resorting to supervisors. Willey bolstered her position by emphasizing that she and Dottie had engaged in a previous off-duty argument, several months before her termination. In that case, the employees resolved their dispute the next day at work, and were able to continue working together successfully. The Court emphasized that there was no reason to doubt that the same outcome would result after this argument. Importantly, the text-message argument “took place outside of work, and had yet to manifest itself within the workplace or effect job performance.”

Bottom Line

While Delaware employers may terminate their employees for off-duty conduct, they may still be liable for unemployment benefits if the off-duty conduct does not have a sufficient nexus to the employee’s workplace performance. Employers should think twice before they wade into employees’ petty squabbles. In order to avoid finding themselves on the hook for unemployment benefits, employers should consider whether an employee’s off-duty conduct has any actual impact on the employer’s business interests.

We recently posted about Zimmerman v. Weis Markets, a case in which a Pennsylvania court required an employee to turn over his Facebook and MySpace log-in information to the opposing party during discovery. An earlier-filed opinion from a different judge in the same court, though, reached a different conclusion. In Piccolo v. Paterson, Pennsylvania Common Pleas Court Judge Cepparulo denied a motion to compel the plaintiff to accept a Facebook friend request from opposing counsel.

The Court’s Order did not elaborate on its rationale but the briefing on the motion to compel reveals that the plaintiff testified about the contents of her Facebook page during her deposition. As in Zimmerman, counsel was particularly interested in the photographs posted on Facebook. When it was discovered that the plaintiff’s photos could be accessed only by her “friends,” defense counsel sought to compel the plaintiff to accept his friend request. Just as in Zimmerman, the plaintiff in Piccolo demurred on the basis that disclosure of such information invaded her privacy and was generally annoying, embarrassing, oppressing, and/or burdensome.

The Court denied the motion to compel primarily based on the fact that the plaintiff already had provided photographs of her injuries. Because defense counsel made no showing that any photos of the plaintiff’s Facebook photos would be inconsistent with her allegations, the court denied defendant’s request. In essence, it appears that Judge Cepparulo concluded that the defense was unable to meet the threshold burden of establishing relevancy that was expressly established by the Zimmerman opinion. However, the Piccolo opinion seems to point out a significant loophole in the Zimmerman Court’s rationale: counsel cannot meet its threshold burden of proving relevance if a litigant’s social networking privacy settings limit access to “friends.”

See also Social Media Passwords Are Discoverable (McMillen v. Hummingbird Speedway, Inc.);

Defendant Granted Discovery of Plaintiff's Facebook Profile (Romano v. Steelcase)

Social media as evidence in an employment lawsuit is an area of the law that is, to put it mildly, unsettled.  A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. CP May 19, 2011), the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery.

The plaintiff-employee, Zimmerman, sued his employer after he was injured on the job by a fork lift. Zimmerman sought lost wages, as well as compensation for pain and suffering as a result of the “permanent diminution in [his] ability to enjoy life and life’s pleasures.” In support of his damages claim, Zimmerman alleged during a deposition that he could no longer wear shorts because he was so embarrassed by scarring on his leg.

Subsequently, counsel for Weis Markets did what all employment attorneys should do—they checked Facebook. On public portions of Zimmerman’s Facebook and MySpace pages, he had posted pictures of himself wearing shorts with his scars clearly visible. Based on the public information available, Weis Markets sought access to the private portions of Zimmerman’s profiles. In his effort to protect this information, Zimmerman claimed that his privacy interest outweighed the need to obtain relevant information in discovery.

In addressing the dispute, the Court relied on three principles: “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”

The Court then turned to other cases that emphasized the irony of allowing a party to litigation to hide behind privacy settings on a website where the primary purpose of the website is to share information. Given the intent behind social networking sites—the voluntary disclosure of private information—the Court concluded that Zimmerman did not have a reasonable expectation of privacy as to the information posted there, and consequently could not assert his privacy interest as a defense to discovery. This is particularly true since it was Zimmerman himself who raised the issue of his physical condition by initiating the litigation. Consequently, the Court ordered Zimmerman to provide opposing counsel with his passwords, user names, and log-in names for all MySpace and Facebook accounts he maintained.

The Court did note, however, that its opinion did not open the door to fishing expeditions into the private portions of any party’s social networking accounts. The Court emphasized that this case was distinguished by the fact that Weis Markets was able to meet a threshold burden of showing that publicly accessible portions of the site contained relevant information, allowing an inference that similar information existed in private portions of the site.

So far in this series, we've seen how an employee's LinkedIn profile can (at least arguably) constitute evidence of the following:

• the existence of an integrated enterprise or successor-entity status;
• the existence of an agency relationship;
• misappropriation of trade secrets. 

In this post, we'll look at the potential implications of a former employee's inaccurate LinkedIn profile.

In Asanov v. Legeido, a former employee posted, inaccurately, on his LinkedIn profile that he was the owner of the company by which he was previously employed.  The company alleged that the employee posted the inaccurate information in his profile to help his job search.  The company filed suit against the former employee alleging trademark infringement and intentional interference with its prospective business relations.

No. 3:07-1288, 2008 WL 481426, at *3 (M.D. Tenn. Oct. 31, 2008).

Now comes the really important question--what's an employer to do?  There are two different problems to address.  First, the current employee who inaccurately states his job title on his LinkedIn profile (i.e., VP of Sales, instead of Inside Sales Manager).  Second, there's the former employee whose LinkedIn profile describes his job duties and/or title held while employed by you as different (and, presumably, "better"), than they actually were.  Here are some thoughts on both problems.

The Current Employee

In the event that you discover that a current employee has slightly "enhanced" his job title or responsibilities in his LinkedIn profile, handle it in exactly the same way you would handle a "offline" problem (as opposed to an online one).

In other words, put aside for a minute the context--a professional social-networking site.  And turn, instead, to the real problem.  The real problem is that you've got an employee telling lies.  It's irrelevant that the lie is being told in cyberspace. 

So what would you do if he spoke the lie instead of posting it?  It almost certainly depends.  You may not care one bit.  Fine.  You may care a lot, particularly because it relates to his employment and, as we've seen in the past several posts--your employee's LinkedIn posts can be used against you.

The answer, then, is simple--deal with it in exactly the same way you would deal with it had you been told that he made the misstatement at a local ball game or at lunch with clients. 

The Former Employee

This is more difficult to deal with only because the employee is no longer within your "control;" in other words, you no longer have the leverage of termination or discipline since he no longer works with you.

The first step probably is to contact the employee directly and ask that he correct the inaccuracy.  If he refuses or fails to comply, you may want to involve legal counsel, depending on the nature of the misrepresentation.

One preventative step to consider is whether you want to address the issue at the exit interview or in a post-termination letter.  In other words, it may be wise to "gently remind" your recently separated employees to change their online social-networking profiles to reflect the change. 

The next question, then, is whether you should be monitoring the profiles of those individuals.  For employees who worked in sales or other direct-client positions, it may not be a bad idea.  Of course, it means one more commitment of your valuable time but, for certain positions, it could help to prevent a number of potential problems.

See also these prior, related posts:

LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

LinkedIn Lessons for Employers: Part 3 (Agency Liability)

LinkedIn Lessons for Employers: Part 4 (Trade Secrets)

Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes.

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers."  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states' medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

Continue reading . . .

Stories of employees who get fired for exercising poor judgment in their use of social media constantly make the news.  There are too many to report, really.  But some can serve as valuable lessons, thereby warranting a bit of special attention.  Here's one such story, reported by My Fox Philly.com. 

Vanessa Williams was a social-media specialist with an economic development agency in Bethlehem, Pa.  That was, at least, until Friday, when she posted the following on the company's official Twitter account:

We start summer hours today. That means most of the staff leave at noon, many to hit the links. Do you observe summer hours?  What do you do?

Her (former) employer, the Lehigh Valley Economic Development Corp., is funded partly with tax revenue and is charged with helping bring business to the area.  Another user responded to the tweet and asked if economic development wouldn't be better served by having the agency's staff stay at work and off the links on Fridays. 

I suppose the lesson here, like the lesson in so many of these stories, is to never assume that you're "too smart" or "too experienced with social media" to make a mistake or have a lapse in judgment.  The casual nature that makes social media such an attractive form of communication is exactly what can make it so risky to use. In short, the moral of the story is to tweet with caution. 

In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role.  In the first post in the series, I discussed a case in which an employee's LinkedIn profile was argued to constitute evidence of a single, integrated enterprise.  In the second post, I discussed a case in which LinkedIn profiles were used to establish successor liability.  In the third post, I discussed the use of a LinkedIn profile to establish an employer's liability for the acts of its agent.  In this post, I discuss cases in which LinkedIn evidence was argued to constitute evidence in support of a claim for misappropriation of trade secrets.

In Sasqua Group, Inc. v. Courtney, an employer sought an injunction against its former employee, who had left to open a competing business.  The employer alleged that its client database constituted a protectable trade secret.  But the court disagreed, giving credit to the testimony of the former employee that she could easily replicate the information contained on the database through Internet searches of LinkedIn, Facebook, and Bloomberg.

This case raises interesting questions about what steps employers should be taking to protect their client contact information from becoming publicly available and, more specifically, whether employers should consider a policy that addresses whether  an employee may or may not upload his work-related contacts to his LinkedIn profile. 

No. 09-cv-528 (ADS)(ETB), 2010 U.S. Dist. LEXIS 93442 (E.D.N.Y. Aug. 2, 2010) (report and recommendation), adopted, 2010 U.S. Dist. LEXIS 98621 (E.D.N.Y. Sept. 7, 2010).

See LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

LinkedIn Lessons for Employers: Part 3 (Agency Liability)

The Third Circuit gave employers new reasons to worry about misclassifying their employees in its decision in Figueroa v. Precision Surgical, Inc., (PDF), C.A. No. 10-4449.  A former employee brought suit seeking to invalidate the non-competition provision in his independent-contractor agreement (“ICA”).  The plaintiff alleged that his former employer had materially breached the contract and, therefore, could not enforce it against him.

During the course of his 6-years with the organization, the plaintiff's relationship became more like that of an independent contractor.  For example, the company required that the plaintiff: (1) devote 100% of his energy to selling the company's products; (2) report to his supervisors daily and attend monthly meetings; (3) abide by a dress code; and (4) obtain permission from before giving quotes to certain prospective customers.

As the supervision and reporting requirements became more onerous, the plaintiff objected and, eventually, requested a new contract that clarified his status as an independent contractor.  The company refused and stated that it intended to convert all sales positions to employees, eliminating all independent contractor positions.  When he refused to make the conversion to employee status, his contract was terminated. 

The employee brought sought suit seeking declaratory relief invalidating the non-compete provision in the agreement. The company filed a counter-claim alleging breach of the non-compete agreement based on the plaintiff's new contract position as a sales representative for a competitor.

The District Court denied the employer's request for a preliminary injunction, finding that the employer had more likely than not breached its obligations under the independent-contractor agreement.  The Third Circuit affirmed, finding that the requirements to which the plaintiff had objected were not consistent with requirements for an independent contractor.  As a result, the court held, the employer breached the agreement by treating the plaintiff as an employee. 

Well-informed employers understand the significance of properly classifying employees for tax and benefits purposes. The Third Circuit’s recent opinion gives employers another reason to avoid misclassifying their employees: failure to properly classify workers as employees or independent contractors may impact their ability to enforce restrictive covenants and non-compete agreements.

In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role in the outcome of the parties’ dispute.

In the first post in this series, I discussed Freire v. Keystone Title Settlement Services, in which the LinkedIn profile of the plaintiff’s manager was argued to constitute evidence that two entities should be considered a single, integrated enterprise. In the second post, I discussed Steinberg v. Young, in which the court found that the LinkedIn profiles of 5 employees constituted evidence that the defendant was the successor entity of the company that previously had employed the plaintiff.

In this post, I discuss a case involving the LinkedIn profile as the basis for holding an employer liable for online comments of another party.

3. Agency Relationship

In Park W. Galleries, Inc. v. Hochman, the defendant filed a counter-claim against the plaintiff-art gallery, alleging that an individual, acting on behalf of the gallery, posted defamatory statements about the gallery on his blog.  In response, the art gallery argued that there was no evidence to show that the individuals who made the statements were acting on the gallery's behalf.  The gallery's CEO testified that individual was not and had never been an agent or employee of the gallery and that the gallery had never authorized the individual to speak on its behalf. 

The test to determine whether there is an agency relationship such that an entity may be held liable for an individual's actions or statements is whether the principal has a right to control the actions of the agent.  Under Michigan law, if there is any evidence to support the existence of an agency relationship, the question cannot be decided by the court but, instead, must be presented to the jury. 

The court determined that there was sufficient evidence to support the existence of an agency relationship between one of the individuals when he made the allegedly defamatory statement.  The evidence cited by the court was a posting on the individual's LinkedIn profile, on which he had identified himself as a "Consultant/Writer at Park West Gallery."  In the "Experience" section of his profile, his profile included experience as a "Public Relations/Blogger/Writer" for the gallery.  And, according to the gallery's website, the individual was editing a book to celebrate the gallery's 40th anniversary. 

Based on this evidence, the court concluded that the individual could have been speaking on behalf at the behest of the gallery when he posted the allegedly defamatory statements on his blog.

No. 08-122471, 2010 U.S. Dist. LEXIS 12488, at *15 (E.D. Mich. Feb. 12, 2010).

See also:

LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

Law360 reports (subscription required), that the Chicago Regional Office of National Labor Relations Board (NLRB) issued a complaint last week against Karl Knauz Motors, Inc., alleging that it violated the National Labor Relations Act (NLRA), when it fired an employee for comments he posted on his Facebook page.  The allegations in the complaint are minimal at best.  In sum, it claims that:

On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees' concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

It then states that Becker was terminated a week later and claims that the termination was intended to discourage employees from engaging in concerted activities. 

A hearing is scheduled to be heard on July 21, 2011. 

This is just the latest in a seeming flurry of activity involving the NLRB's interest in so-called "Facebook Firings," including one reported last week issued by the Manhattan Office, the threatened complaint that never materialized against Thomson-Reuters, and the NLRB's GC's determination that the termination of an Arizona journalist for his Twitter comments did not violate the NLRA.

Probably not successfully.  But that didn't stop one employer from trying. In Lee v. PMSI, Inc., the plaintiff sued her former employer for pregnancy discrimination. The employer filed a counterclaim under the Computer Fraud and Abuse Act (CFAA).  The basis for the claim was that Lee engaged in "excessive internet usage" and "visit[ed] personal websites such as Facebook and monitor[ed] and [sent] personal email through her Verizon web mail account."  That's right--the employer sued its former employee on the basis that the employee's on-duty Facebook use constituted a violation of the CFAA.

As you may imagine, the federal district court did not find merit in this claim.  U.S. District Judge Steven D. Merryday, of the Middle District of Florida, Tampa Division, granted the employee's motion to dismiss, finding that the employer had failed to allege either of the two bases for a CFAA violation--that the employee caused damages to the computer system or that the employee obtained information to which she was not entitled.

Additionally, the employer failed to allege that the employee "exceeded authorized access."  This prong has been the sticking point for those courts that are split as to whether the CFAA--a statute intended for use in the prosecution of computer hackers--should be applied in the employment context.  Although there is a split of authority on when it is that a disloyal employee loses her authorization to access the employer's computer network, these facts seem to go beyond any reasonable interpretation of the statute. 

I suppose we could give the employer some credit for its attempted "novel" application of the CFAA.  But I think more credit should be allocated to the court for rightly applying what can be a complicated law. 

Thanks to Michael R. Greco at Fisher & Phillips, LLP's Non-Compete and Trade Secrets Blog, whose post alerted me to the case.

See also:

Putting the Computer Fraud Abuse Act to Work for Employers

In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role in determining the case’s outcome. In the first post in this series, I discussed Freire v. Keystone Title Settlement Services, in which the LinkedIn profile of the plaintiff’s manager was argued to constitute evidence that two entities should be considered a single, integrated enterprise. In this post, I look at a similar case involving successor liability.

2. Successor Liability

In Steinberg v. Young, the plaintiff had alleged breach of his employment contract. The claim went to arbitration and the plaintiff won. When he tried to collect on the judgment, though, he claimed that the defendant—the owner or majority shareholder of several corporate entities, including the one that had lost in arbitration—had been fraudulently transferring assets out of the various entities to defeat the plaintiff’s collection efforts.

The plaintiff pursued a claim in federal court on the basis of the state’s fraudulent-conveyances law and under a theory of successor liability. On the successor-liability claim, the court found that there was evidence to support that the defendant was the “mere continuation” of one of the corporate entities. In denying the defendant’s motion for summary judgment, the court looked to the LinkedIn profiles of at least 5 employees of the original company who had continued with the successor company.

No. 09-11836, 2010 U.S. Dist. LEXIS 31996, at *20-22 (E.D. Mich. Mar. 31, 2010).

Thus, unlike in the Freire decision reviewed in yesterday’s post, here the court found that evidence from LinkedIn did constitute evidence sufficient to show the legal relationship between two entities.

See, LinkedIn Lessons for Employers: Part 1

Last week, LinkedIn debuted on the NYSE with an initial public offering of stock at $45 a share. The share price climbed on Friday, sending the social-networking company’s market value to $9.1 billion. According to the Washington Post, this is approximately 24 times its 2011 revenue.

Employers like to think of LinkedIn as the “good son” among social-networking sites, especially as compared to Facebook.  LinkedIn is marketed to professionals and is used widely for recruiting. It also can be used as an online rolodex, enabling professionals to connect with others in their industry and get automatic updates when your “connections’” contact information changes.

In light of the recent LinkedIn IPO, it seems like a good time to give some thought to some of the employment-law implications of this darling of the social-networking sites. In this series, I'll review some of the employment-law cases in which LinkedIn has played a substantive role.  In the last post in the series, I'll discuss some of the ways that the lessons from these cases can be applied to an employer's social-media policy. 

1.  Integrated Enterprise:  Will the Real Employer Please Stand Up?

In Freire v. Keystone Title Settlement Services, the plaintiff sued her former employer, alleging unlawful harassment and discrimination. The employer argued, among other things, that it did not employ the minimum number of employees to subject it to liability under Title VII. The plaintiff countered that the employer and its parent company operated as an integrated enterprise and, together, did employ the required minimum number of employees.

As evidence of the integrated nature of the two entities, the plaintiff introduced the LinkedIn profile of her former supervisor, which stated that the supervisor was employed by the parent company. The defendant countered with an affidavit by the supervisor, which stated that the supervisor had mistakenly used the wrong company name as her employer and that she had completed that portion of her LinkedIn profile before the relevant period.

No. AW-08-2976, 2009 U.S. Dist. LEXIS 121190, at *10-11 (D. Md. Dec. 30, 2009), aff’d 2010 U.S. App. LEXIS 15817 (4th Cir. July 29, 2010).

The National Labor Relations Board (NLRB) has announced that, on May 9, it issued a complaint against a non-profit for allegedly terminating five employees for comments they made on Facebook.  This is the latest development in what appears to be the final frontier of social media and employment law. 

Seth Borden at Labor Relations Today gives a more detailed account of the facts as alleged by the NLRB but the short version is this:

Employee posts comments on Facebook.  Co-workers respond to the comments with comments about their own job performance staffing issues. Employer fires co-workers for the posts, which the employer contends constituted unlawful harassment.

A hearing is set for June 22, 2011.  This is only the second time that the NLRB has issued a complaint--the first was in the American Medical Response (AMR) case, which was settled before a decision was reached.  That complaint was issued by the NLRB's Connecticut Regional Office. 

Although a settlement was reached before a complaint was issued, the NLRB's Manhattan Regional Office announced earlier this month that it intended to file a complaint against Thomson-Reuters for allegedly reprimanding an employee for complaining about the company on Twitter.  However, just last week, the NLRB's General Counsel's Division of Advice concluded that the termination of an Arizona newspaper reporter for posting comments critical of his employer on Twitter was lawful. 

Adding yet another layer to the analysis of union rights and social media, on April 12, the NLRB's Office of General Counsel announced that social-media disputes must be submitted to the Division of Advice due to the novel issues involved.  Yet, Philip Gordon, of Littler Mendelson, reported that the Director of the Connecticut Regional Office revealed that the Regional Offices, "at the direction of the Board's Acting General Counsel, are filing complaints to set the stage to reverse the Board's [] decision in Register Guard."

On one hand, it seems that the NLRB's General Counsel is taking a cautious approach to ensure consistency in this new area of the law.  On the other hand, though, it appears that the Regional Directors have been directed to take an aggressive approach to these issues, as certainly seems to be the case in the recent filing by the Manhattan Regional Office.

Stay tuned as the NLRB-vs.-social-media battle continues.