Yesterday, I promised to discuss the analysis that a court applies to determine whether a government employer has unlawfully retaliated against an employee in violation of the employee’s right to free speech. As promised, the analysis is discussed below. In the next post in this series, I’ll discuss the cases that have been applied to employee’s off-duty, online, and social-media speech.

The Analysis
In order to establish a claim under the First Amendment, an employee must first show that the speech in question meets three requirements. First, the employee must demonstrate that his or her speech was made as a “citizen” in accordance with the U.S. Supreme Court’s decision, Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Second, the employee must show that the speech addressed a matter of “public concern. Third, the employee must show that his interest in the speech outweighs the employer’s countervailing interest in “promoting workplace efficiency and avoiding workplace disruption.”

If the employee successfully establishes each of these three elements, he must then prove that the speech was a “substantial or motivating factor” in the action taken against him by the employer. If he meets this burden, the burden then shifts to the employer to prove that the adverse action would have been taken absent the protected speech.

Because we are talking only about social-media policies, i.e., no employee is claiming that he has been disciplined for his speech, our analysis is limited to the first three steps, discussed above, which establish the test to determine whether speech is protected. If the speech that is restricted or prohibited in a policy is not protected speech, then the policy can be implemented without implicating the First Amendment. If the speech is protected, then the policy should be revised.

Step 1: Did the Employee Speak as a Citizen or as an Employee?
Speech made by an employee about matters relating to his employment is not protected by the Constitution. Thus, a government employer may discipline an employee who speaks (online or otherwise), about his or her job without triggering the protections of the First Amendment. So, the first question is whether the speech can be said to relate to the employee’s job.

Speech that is most easily classified as “employee speech” is speech that relates to the employee’s job responsibilities. For example, a teacher who posts complaints about the required curriculum is said to be speaking as an employee and receives no constitutional protection. On the other hand, a teacher who complains about increases in property taxes would be speaking as a citizen because taxes are unrelated to his job duties and he is, therefore, speaking as a citizen.

Step 2: Did the Speech Address a Matter of Public Concern?
If the employee can show that his speech was made in his capacity as a citizen and did not relate to his job duties or responsibilities as a government employee, then he proceeds to the second step of the analysis. Here, the employee must show that his speech addressed a matter of public concern.

In the hypothetical described above, taxes easily qualifies as a subject for public concern. On the other hand, it would be difficult to conclude that a matter for public concern is involved where a teacher who posts about the poor lunch selection offered in the teacher’s lounge. Just for purposes of contrast, though, if the teacher’s comments were about the poor nutritional content of lunches provided to the student body, a public concern may be at issue.

Step 3: Is the Employee’s Interest Outweighed by the Employer’s Interest in an Effective and Productive Workplace?
Speech that relates to a matter of public concern is next subject to what is known as the Pickering balancing test whereby the employee’s interest in her speech is compared to the employer’s interest in promoting wrokplace efficiency and avoiding workplace disruption. Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

The application of this balancing test is not a precise science. In some cases, this balancing test gives the employer a tremendous amount of leeway when considering whether it can discipline an employee for his or her speech. Some of the factors considered at this step is whether the speech impairs disciplien or control by supervisors; whether it disrupts co-worker relations or erods close working relationships based on personal loyalty or confidentiality; interferes with the speaker’s performance of his or her job duties; or obstructs routine office operations.

It’s this last step that gives employers the most protection–particularly in the context of a negative comment made by an employee on his or her Facebook profile. But for more about that, you’ll have to tune in for the next post in the series. Stay tuned!!

Delaware’s public employers seem to face a great deal of opposition when they propose to implement a social-media policy. In May, Kent County Levy Court tabled a proposed socia-media policy after critics raised somewhat confusing objections to it. And, last week, the Dover City Council rejected a proposed social-media policy after receiving a letter from the ACLU of Delaware. The ACLU’s letter concluded that the policy would encroach on employees’ free-speech rights. An ACLU representative spoke at the Council meeting, claiming that the policy would violate the First Amendment.

When the Kent County policy was first proposed, I wrote about some of the many reasons that employers do need social-media policies. In this series, I’ll address the constitutional issues that government employers face and explain that social-media policies, when properly drafted, do not violate the First Amendment. In the next post, I’ll explain the three-step test an employee must meet before he will be afforded constitutional protection for his speech. Then, in the third and final post, I’ll offer some examples of how the constitutional analysis has been applied by courts to employees’ off-duty speech, including online speech, and how those cases make clear that government employers, indeed, can restrict employees’ social-media activities in the interest of operating an effective and productive workplace. For now, what follows is a short summary of free-speech law as applied to social media:

The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.” But this restriction is not without limitation. The government may place certain restrictions its citizens’ speech. And when the government is acting as an employer, the limits it may impose on its employees’ speech are far broader. The U.S. Supreme Court has interpreted the First Amendment as providing government employers the ability to restrict speech to manage the workplace.

Thus, speech on a matter of “public concern,” i.e., that relates to the political, social, or other community concerns, will receive a higher level of protection. On the contrary, speech that is not on a matter of public concern, i.e., purely personal in nature, receives far less protection. In the context of social media, as discussed in the upcoming posts in this series, the same rules apply-government employers may restrict (through policies or discipline), employees’ speech.

Stay tuned for Parts 2 and 3 later this week.

FINRA, the Financial Industry Regulatory Authority, is the watchdog agency for the financial brokerage industry. In January 2010, FINRA issued Regulatory Notice 10-36 cautioning brokerages about broker-dealers’ use of social media. FINRA released additional guidance last month, expanding upon the notice issued last year.

In short, the FINRA guidance explains that the supervisory and recordkeeping obligations that apply to any business-related communications apply equally when those communications are sent via social media. Companies also must oversee and track all customer interactions sent through personal mobile devices.

Brokers do not need preapprovals for “unscripted” interactions (i.e., unplanned communications), but they must alert their supervisors after the fact.

Also, a broker must be get advance approval from his or her employer before mentioning the firm on any social networking site, such as LinkedIn.

To explain the Guidance, FINRA is publishing a three-part podcast, the first segment of which is available now.

Guidance on Blogs and Social Networking Sites, Full Text of Regulatory Notice 11-39 (PDF)

Young Conaway Employment Law Partner Bill Bowser is a fan of the phrase, embarrassment of riches, meaning an overabundance of a good thing. Just today, Adria Martinelli and I each had occasion to use the phrase today in separate conversations and laughed when we realized that the real embarrassment of riches was our frequent use of the phrase in conversation. Embarrassment of riches had, itself, become an embarrassment of riches. And it now seems that we have yet another chance to use the phrase today, as I’ve learned that the Delaware Employment Law Blog has been named by LexisNexis as one of the Top 25 Labor and Employment Law Blogs!

There are so many incredible labor-and-employment law blogs and bloggers online today that I can’t imagine how tough it was to select just 25 of them for this award. I can’t even limit my annual Top 100 Labor and Employment Law Blog list to 100 anymore. I am a fan of each of the blogs named to the list of Top 25 and I recommend that you pay a visit to any of the sites you may not yet know. Between the whole motley crew of us, you’re almost guaranteed to get all of the up-to-the-minute coverage of what’s happening in the area of workplace law.

Without playing favorites, I will point you in the direction of a handful of blogs written by long-time bloggers whose posts I consistently enjoy. For example, two gentlemen I’ve had the pleasure of getting to know over the past few years, Dan Schwartz of the Connecticut Employment Law Blog and Jon Hyman of the Ohio Employer’s Law Blog, both post so often, they make my head spin! Dan, Jon, Phil Miles of Lawffice Space, Rob Radcliffe of Smooth Transitions, and I also collaborated on a recently published book, Think Before You Click, which is the first Human Resources publication dedicated to in-depth coverage of social-media related issues in the workplace.

I also would like to direct you to three blogs that I read religiously but whose authors I’m sorry to say I have not yet met. Michael Fox has been blogging at Jottings by an Employer’s Lawyer since before most of the rest of us knew what a blog actually was! Timothy Eavenson of Current Employment hasn’t been blogging quite as long (but, really, who has?), but still longer than most and yet consistently produces great posts on cases and issues that matter. And I am always amazed by Brian Hall of The Employer Law Report and his ability to constantly collect and curate stories from just about every source-and has the content-rich posts to prove it.

Finally, I have to mention my friend Seth Borden of Labor Relations Today. Although Seth’s blog didn’t appear in the LexisNexis list, I’m absolutely certain that it was only due to an oversight because nobody, and I mean nobody writes a better labor blog than Seth.

Although I could go on and on about the great folks with whom I’m so lucky to share the blogosphere with, I’ll, instead, leave you with the rest of those honored by LexisNexis this year. There is apparently a “race to the top” with readers able to vote for their most favorite blog from the Top 25. If you’re inclined to vote for this or any other blog on the list, you can do so here. That’s also the page where you can find the entire list of all 25 employment-law blogs. And, while you’re there, be sure to check out all of the resources offered in the LexisNexis Labor and Employment Law Community-many of the bloggers on the Top 25 list are contributors to this terrific resource.

But regardless of whether or for whom you vote, thanks for reading the Delaware Employment Law Blog and any of the other many high-quality employment law blogs that are published every day. This blogging stuff can be a lot of work! But for those of us who do it, it’s a labor of love and we do appreciate having you come along for the ride.

In Pitts v. Terrible Herbst, Inc., the 9th Circuit held that an offer of judgment made by an employer to an employee-plaintiff in an FLSA case will not moot the case where the Court has not yet ruled on certification. As a practical matter, what this ruling meant was that the plaintiff-who alleged that he was owed less than $100-could continue to litigate his collective-action claim, despite having rejected an offer of judgment in the amount of $9,000. In other words, employers who are sued for unpaid wages can do nothing to prevent being targeted by a class-action lawsuit.

The 9th Circuit’s decision in Terrible was a terrible one for employers. And, making it worse, the 3d Circuit is on the side of Terrible.


In Symczyk v. Genesis Healthcare Corp., the defendant-employer made an offer of judgment in the full amount of the plaintiff’s claim plus reasonable attorney’s fees. Because the offer provided for all of the relief that the plaintiff could have received had she pursued the claim through trial, the offer constituted “full relief” of her claims. The employee did not accept the offer.

Ten days after the offer expired, the court held a scheduling conference. The offer was not addressed and the court provided for a 90-day period for discovery, after which the plaintiff could move for conditional certification of a class of putative plaintiffs. Thereafter, the employer moved to dismiss the lawsuit on the ground that the court lacked subject matter jurisdiction because the offer of judgment for full relief had mooted the plaintiff’s claim. In other words-there was nothing more that she could have recovered and, therefore, she no longer had a “legally cognizable interest in the outcome.”


Standard of Law for Conditional Certification

Before addressing the mootness issue, the court first discusses the plaintiff’s burden at the conditional-certification stage. The court notes that there has been a split among district courts in the 3d Circuit, with some courts requiring the plaintiff’s pleadings to contain “substantial allegations,” with others requiring the plaintiff to make a “modest factual showing.” By no means is either test a difficult one to satisfy and, in all reality, the motion is likely to be granted. Nevertheless, the court did adopt the higher-burden test, which requires, the court explained, the plaintiff to produce some evidence “beyond pure speculation” of a factual nexus b/w how the employer’s policy affected her and how it affected other employees.

The Effect of an Offer of Full Relief on FLSA Collective Action

The court then turned to the main issue-whether an offer of full relief made pursuant to Rule 68 of the Federal Rules of Civil Procedure moots the claim of an FLSA plaintiff who has not yet moved for conditional certification. Like the 9th Circuit, the Third Circuit held that the answer is “no.”

The court acknowledged that an offer of complete relief will generally moot the plaintiff’s claim. But the court then went on to offer several policy-based reasons why this “general” rule limiting the jurisdiction of the federal courts should not be applied in the context of an FLSA collective action.

The court opined that, although Rule 68 was designed “to encourage settlement and avoid litigation,” the Rule can be manipulated in the class-action context to “frustrate rather than to serve those salutatory ends.” The court then states that, if the “general” rule were applied, the defendant would be able to “pick off” the claims of the named plaintiff and avoid certification of the class. This, in turn, would require “multiple plaintiffs to bring separate actions, which effectively could be picked off.” This application of the rule “obviously would frustrate the objective of class actions and waste judicial resources.”

Continue reading for my take on why this decision is so terrible for employers . . .
Continue reading

The NLRB announced the “first case involving Facebook” to have resulted in a decision by an Administrative Law Judge (ALJ). The case, Hispanics United of Buffalo v. Ortiz, held that the employer violated the National Labor Relations Act (NLRB), by terminating five employees for their Facebook posts regarding a coworker’s complaint about their job performance.

One of the five employees posted a message on her Facebook page about the complaint and solicited comments from her coworkers. The responsive comments included plenty of profanity, as well as various reasons why the coworker’s complaint was unfounded.

When the coworker learned of the posts, she complained and the Facebook posters were terminated.

The ALJ concluded that the posts were protected by the NLRA because they were about “matters affecting their employment” and were made amongst coworkers. The ALJ then concluded that the posts did not lose their protection by virtue of the fact that they contained “explicit or implicit criticism of a co-worker,” profanity, or sarcasm.

The lesson to be learned from Hispanics United? Legally speaking, employers must understand what type of conduct-whether it occurs online or offline-will trigger the protections of the NLRA. Practically speaking, employers should plan ahead-discuss how your organization will handle a complaint about employees’ Facebook activities, particularly when the activity is critical of management or other employees. And know not to react with emotion if (and when) the situation occurs. Instead, call your employment counsel for sound advice about how to proceed.

Hispanics United of Buffalo v. Ortiz, 03-CA-027872 (Sept. 2, 2011)

Employees of Delaware’s capital may soon be subject to a social-networking policy. The City of Dover has proposed a new policy on employees’ on-duty and off-duty use of social-media sites, such as Facebook, Twitter, and YouTube, reports The News Journal.

According to The News Journal, the policy prohibits on-the-job use of social-networking sites, like Facebook. Off the clock, employees would be prohibited from “posting disparaging comments about co-workers, their bosses, or members of the public” with whom they interact during the course of their jobs. The policy also prohibits employees from making racist statements or “negative comments” based on other legally protected characteristics and from “promoting” illegal activity, illegal drug use or violence.

Before being implemented, the policy first must be approved by the City Council. The usual objections have been raised by Councilman Bill McGlumphy, who claims that employees’ off-the-clock activities are not the City’s concerns. Councilman David Anderson raised the “free-speech” objection, apparently on the basis that the policy’s language is overly broad. Similar objections were voiced in response to the social-networking policy proposed by Kent County, Delaware in May 2011.

The current trend of litigation over social-media policies has been limited to policies that violate the National Labor Relations Act (NLRA). But the NLRA does not apply to public employers. For state and city governments, the First Amendment is the hurdle that must be crossed. Although the First Amendment does guarantee employees some rights of free speech, those rights become limited when employees work for the government.

Navigating the boundaries between employee speech that can and cannot be limited is not easy.

See also, Police Departments Revise Their Social-Media Policies and Jumping the Gun on Public Employees’ Internet Activity.

The Circuit Courts of Delaware County, Ohio, have adopted a social-networking policy for court employees. As reported by, the policy prohibits employees from accessing social-networking sites, like Facebook, during working time, including access with personal smartphones.

The policy goes beyond on-duty activities, though, by prohibiting employees from discussing or revealing “any information related to a judge, co-workers, parties before the court, attorneys who appear before the court, local law enforcement officials,” and any information, “obtained through the employees’ observation of events at work.” The policy also prohibits employees from making derogatory comments in online postings. Specifically, employees may not make comments that “are negative about another employee or might be perceived as negative.”

The four-day workweek is no more. Well, at least in Utah, reports NPR. Next week, Utah State employees will return to a traditional five-day workweek. The four-day workweek officially died last week but workers can ease their way into the grueling five-day schedule thanks to the Labor Day holiday.

Former Utah Governor John Huntsman initiated the program in 2008, heralding it as a way to increase efficiency and morale, while reducing costs and conserving energy. As our long-time readers may recall, I was skeptical that the purported benefits of a four-day workweek would be realized fully. It seems that my skepticism was well founded. The State-wide program is being abandoned after a legislative audit revealed that the savings were not as great as had been hoped and residents were dissatisfied with the limited access to government services.

Not all four-day workweeks have been unsuccessful, though. The smaller size of local governments appear to be the key to successful implementation of the so-called 4/10 workweek. With fewer employees and offices, towns and municipalities are able to more effectively adjust the program to fit the needs of residents and demands of employees.

As for me, my opinion is unchanged. Workplace flexibility is a good thing. And that’s exactly why the Utah program did not work. Utah’s four-day workweek was mandatory. “Mandatory flexibility” is an oxymoron. That’s why, in my opinion, mandatory workplace flexibility in the form of a state-wide program doesn’t work.

The U.S. Court of Appeals for the Third Circuit recently ordered that former Pennsylvania State Senator Vincent Fumo resentenced. As reported by Reuters, Fumo had been sentenced to 55 months in a minimum-security prison after being convicted of fraud and related charges in 2009. The prosecution appealed the sentence, though, arguing that it was too lenient.


On appeal, Fumo had a request of his own, seeking a new trial due to comments made by a juror via Facebook while the trial was still in progress. Fumo’s counsel had moved for a mistrial for the same reason but, after examining the juror in question, the trial judge denied the motion and the trial continued. The Third Circuit affirmed the decision and, in its opinion, reviews the standard for a mistrial based on juror misconduct.

Even more interesting, though, was the court’s comments on how social media is influencing the legal system. The Third Circuit “enthusiastically endorse[d]” the Proposed Model Jury Instructions regarding the Use of Electronic Technology to Conduct Research on or Communicate about a Case, which were promulgated by the Judicial Conference Committee on Court Administration and Case Management in 2009. The Court continued its “enthusiastic endorsement,” stating that it:

strongly encourage[s] district courts to routinely incorporate them or similar language into their own instructions.

The full opinion is available on the Third Circuit’s website–the portions of the opinion discussed above can be found at pages 27-30. And, if you’re interested in this topic, you can read more about the impact of technology on the practice of law and the legal system at Going Paperless Blog, which I write in my spare time.

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