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. linkedin logo by webtreats

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.  NLRB white

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.

The U.S. Department of Labor (DOL) continues in its initiative to provide employers and employees with online resources and tools designed, according to the DOL, “to help employers understand their responsibilities to report and record work-related injuries and illnesses” in accordance with OSHA regulations.  DOL 2 

From the DOL’s press release announcing the new web tool:

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

Some related resources:

OSHA Recordkeeping Rules CFR 1904

OSHA Recordkeeping Handbook

OSHA Recordkeeping-Related Letters of Interpretation


Of course, nothing can really top the DOL’s Wage and Hour Division’s new timekeeping app, which gives employees the ability to keep their own records of time worked, which may or may not match the records provided to the employer.

The Delaware Attorney General’s Office is seeking to appeal the Third Circuit’s ruling that Delaware’s labor apprentice law violated the commerce clause. That decision upheld an opinion in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware’s Prevailing Wage Law discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay. After the Third Circuit’s ruling, Tri-M sought more than $190,000 in attorney’s fees and costs from the State, but that petition was stayed by the District Court while the State petitions the United States Supreme Court to review the Third Circuit’s ruling.

The NLRB’s General Counsel’s Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.

The employee was a public-safety reporter for a newspaper in Tucson, the Arizona Daily Star. The paper encouraged its reporters to use social media, including Twitter, to engage its readers.

In early 2010, the employee posted a tweet criticizing a headline written by another reporter. He was called for a meeting with Human Resources and was “encouraged” to discuss his concerns instead of airing them on Twitter. Later, the managing editor told him not to post grievances or otherwise comment about the paper “in any social-media forums that may damage the goodwill of the company.”

The employee complied for a while but, eventually, gave in to the lure of Twitter and posted several comments critical of the paper. Not surprisingly, he was terminated as a result. The termination was submitted to the NLRB, thus resulting in the recent Advice Memorandum.

The key holding in the Memorandum is this: an employee who is “terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so” does not violate the employee’s NLRA rights. In short, the employee was fired for engaging in misconduct that, in and of itself, did not consitute protected concerted activity. Therefore, there was no basis to find a violation of the NLRA.

Porter Wright’s always excellent Employer Law Report blog has a detailed summary of the decision, as well as a link to the Advice Memorandum. The case is Lee Enterps., Inc. d/b/a Arizona Daily Star, No. 28-CA-23267.

Location:E Vista Chino,Palm Springs,United States


Last night, Governor Markell signed Delaware’s civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called “DOL-Timesheet.”  The app works on the iPad and iPhone but may later be released for Android and Blackberry. As described by the DOL:DOL Timesheet app

This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.  It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.

The app does not handle tips, commissions, bonuses, deduction, holiday pay, shift differentials or other non-standard methods of pay.

One notable feature of the app is the ability to send a copy of the report via email.  This may be of particular use to employees who work “on the road” or even from home, especially if their time entries are sporadic.  For example, if an employee sends a series of emails from his iPhone at home, after the end of the normal business day, this may be a helpful way for him to record that time worked and communicate it to his employer.

To set up the app, the user is asked to enter the Employer name, the hourly rate of pay, and the start of the workweek.  (Picture at left).  A nifty little feature occurred when I entered $6.00 as the hourly rate.  A warning popped up, alerting me that I’d entered an amount less than the federal minimum wage.  (Picture at right).

DOL Timesheet appPicture3

The three screens below show how users can create a new timesheet; create a new time entry using either the timer or manually; and send the report via email.


There is also a glossary of wage-and-hour terms and, conveniently, contact information for the DOL’s WHD.


Ah, technology.  Whatever will they think of next?

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”Criminal-History Law

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as “ban-the-box” legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers’ consideration of a candidate’s credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

Employee theft of documents is a serious issue today. More and more often, employers discover that, before exiting, a former employee took with him (often by forwarding himself via email), many of the company’s confidential documents. The employer has limited ways to respond. If the employee refuses to comply with the employer’s demand to return the documents, it may be necessary to file suit.keyboard alert

One of the claims that an employer may bring is under the federal Computer Fraud and Abuse Act (CFAA). The CFAA is also a criminal statute, originally designed to target computer hackers—not disloyal employees. And some jurisdictions have rejected claims seeking to apply the CFAA to the employment context. The leading case finding that the CFAA can be applied to the disloyal employee is International Airport Centers, LLC v. Citrin, which was decided by the Seventh Circuit in 2006. The key to the Citrin decision and others like it is a determination that, although the employee may have been “authorized” to access the employer’s files initially, that authorization is automatically revoked once the employee becomes disloyal. Any access after this point is, by definition, “in excess” of the authorization previously provided.

Three years later, in 2009, the Ninth Circuit rejected the Seventh Circuit’s Citrin analysis, finding, instead, that an employee’s authorization to access his employer’s computer network is not revoked automatically when the employee becomes disloyal to his employer. [1] The Brekka decision held that accessing and emailing the employer’s files for a purpose contrary to the employer’s interests, alone, did not violate the CFAA.

In April, the Ninth Circuit decided United States v. Nosal (PDF), which substantially limits the Brekka decision. In Nosal, the court held that, where an employer has placed limits on the employee’s “permission to use” the computer and the employee exceeds those limits, the CFAA has been violated. The court distinguished this from Brekka, in which the employee’s access was unlimited, whereas, in Nosal, there was an employee agreement warning employees that violation of the company’s computer-usage policy could lead to disciplinary action or criminal prosecution.

In Nosal, the defendant-employee worked for an executive-search firm. When he left, he executed a one-year non-compete agreement. Shortly thereafter, he decided to start a competing business and enlisted some of his former coworkers to use their accounts to access confidential information for him from the company’s computer network. The employees were authorized to access the data—but only on behalf of their employer and only for legitimate business purposes. Thus, when the employees transmitted the data to Nosal, they were acting beyond the scope of their authorization.

Although this decision is an important victory for employers, it does have its limits. For a violation of the CFAA to occur, according to the court’s opinion in Nosal, the employer must have placed restrictions on the employee’s use. A well-drafted permissible-use policy is likely a necessary element of a successful CFAA claim in the Ninth Circuit, as evidence of steps taken by the employer to protect its data and files.

[1] LVRC Holdings, LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009).

See also, our previous posts:

Kent County, Delaware is considering a social-media policy. And, boy oh boy, is it causing quite the stir. Apparently, some opponents only read the headline of the article before concluding that the county is trying to ban employees’ use of social media altogether.  Of course, that’s not the case.  The policy does ban use of social media by employees at work–an idea most taxpayers may appreciate. user manual

Other opponents, though, take issue with the part of the proposed policy that, according to the News Journal, would “bar workers from posting materials on or off the job that disparage co-workers, disclose confidential information.”  The policy also would create a “duty to report inappropriate use of social media by co-workers or supervisors.”

The article says that employee representatives supported the county’s effort to prevent co-worker harassment or threats of violence but were concerned about off-duty restrictions.

So, is there anything for employer to be concerned about when it comes to employees’ off-duty use of social media?

Yes. Yes. Yes. And, yes.

Maybe an example will shed some light on the risks that, presumably, the County is trying to trying to prevent.

Off-Duty Conduct Counts

Consider the story of Mike Bacsik, MLB pitcher-turned-radio producer. In April of last year, Bacsik tweeted while watching a Mavericks-Spurs game. When a Mavericks player was ejected, Bacsik, a Mavericks fan, tweeted: “Congrats to all the dirty mexicans in San Antonio.” He was suspended and later fired for the racist comment.

Had he not been let go, though, his employer would have faced significant legal risks due to Bacsik’s tweet. Most obviously, it would have sent a message to employees (and listeners) that the station tolerated racist statements and employees who make them. Following that rational conclusion, it would not be a far jump to conclude that the station also tolerated racism in the workplace.

You can bet that, if an employee later sued the station for race discrimination, the employee would have pointed to Bacsik’s tweet as evidence in support of the claim. The fact that it was made from Bacsik’s personal Twitter account is irrelevant—what is said outside the workplace is evidence, period.

In an age-discrimination case, a supervisor’s statement about having to eat Thanksgiving dinner with the “old geezers” was used as evidence to support the employee’s claim of age bias. The fact that the employee was not present at his supervisor’s Thanksgiving dinner to hear the comment was irrelevant—as a supervisor, everything you say—whether it is in the workplace, during off-duty time, or even at a holiday meal—may be imputed to the employer for purposes of proving workplace discrimination.

The Duty-to-Report Requirement Is Essential

The reporting requirement also has some in a tailspin.  A duty-to-report provision is an absolute necessity in any social-media policy I write. Employers will be held liable for unlawful harassment that they know or should know is going on.  If an employee is being harassed online by another employee, and “everyone” knows about it, the employer will be held liable.

For example, if coworkers know about the harassment because it’s taking place on Facebook, and the coworkers are friends with the harasser and the employee being harassed, the employer may be held liable because it “should have known” that the harassment was occurring.  Once you know (or should know), the employer has a duty to immediately act to stop the unlawful harassment.

There are only two ways that an employer can satisfy this obligation.  First, the employer can monitor employees’ online activity.  This is not just ineffective but it’s also far too intrusive. (Can you imagine what the policy critics would say to that idea?!)  Second, the employer can include a duty-to-report provision that requires employees who know about a policy violation to report it, thereby giving the employer the opportunity to take steps to correct it immediately. 

The opponents of the proposed policy who contend that it goes too far by addressing conduct that occurs during non-working time should consider attending our annual Employment Law Seminar next week, where they can learn about the many, many risks that can befall an employer as a result of employees’ off-duty social-media activities.

Contact Information