Eleanor M. Savko 4/7/11

Transcription

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2 In Blakely, the New Jersey Supreme Court first recognized a cause of action against an employer for this activity on a company blog. 3 What is co-worker text harassment? 4 2

3 47 states prohibit this Internet/Social Media Conduct? 5 What is cyberbullying? 6 3

4 NJ first recognized civil liability against school boards for this activity in 2008? 7 What is cyberbullying? 8 4

5 HYPOTHETICAL ACME Insurance maintains a company Facebook site to promote employee awareness of company policies; market to company clients; and encourage employee feedback to boost morale and improve communications. Rich is sick of co-worker Steve s antics at work, and regularly posts about Steve s excessive partying and binge drinking with supermodels. Steve s supervisor, Anthony, checks out ACME s Employee Facebook page and is shocked by Steve s behavior, immediately suspending him from work and telling him to go to rehab and return after treatment. Steve goes viral on ACME s employee Facebook page, blaming Rich for his suspension and telling Rich that he will use his Tiger Blood powers to wipe him off the face of the earth. Rich is terrified and comes to you, head of HR, for help. 9 The EEOC did something that took effect on January 10, 2011, that provides employers further guidance regarding their obligations under GINA. 10 5

6 What is issued final regulations? 11 The 2008 Amendments to the ADA make it easier for employees to demonstrate a disability by changing the standard from Substantially Limits to this. 12 6

7 What is Materially Restricts? 13 One major impact of the Amendments to the ADA is that defense lawyers will find it more difficult to use this tool to resolve cases short of trial. 14 7

8 What are motions for summary judgment? 15 HYPOTHETICAL Ed, a supervisor, overhears Wendy telling a co-employee that Wendy hurt her back while working in her garden over the weekend. He also overhears Wendy say that her family has a history of low back problems. Ed later asks Wendy about her condition and Wendy explains that she is having difficulty getting around the office, but that this is her first back injury and she hopes it will soon get better. Ed just had another member of his staff go through FMLA leave for back problems and having that employee out it caused his department a lot of trouble. Wendy is not yet eligible for FMLA leave, but he sees a problem brewing especially given her family s history of back problems. Ed was recently told to cut one member of his staff in a RIF. Wendy and Eric are the two least senior members of his staff, and Ed was going to fire Eric because he has attendance issues. But, Ed changes his mind and fires Wendy. Ed tells his boss he cut Wendy because he thinks her back injury is going to become a bigger problem over time and he does not want to have to deal with her requests for accommodations or her likely reduced efficiency. What problems do you see with Ed s decision? 16 8

9 Employer liability for defamation arising from private employee blogs What is Employer Ratification? Ward v. Cisco 18 9

10 Employers cannot be liable if they have a social media policy prohibiting defamatory or other improper usage. 19 What is false? Blakely v. Continental Airlines 20 10

11 Employers cannot be liable if they have a social media policy prohibiting defamatory or other improper usage. 21 What is false? Ward v. Cisco; Marshall v. City of Savannah 22 11

12 HYPOTHETICAL Company ABC maintains a strict social media policy prohibiting any misuse of social media that could lead to liability for defamation or damage to reputation. Steve posts embarrassing photos of himself in try-outs for The Biggest Loser on ABC s Faceboook account. Kevin, Steve s boss, posts on the same Facebook account-accessible by all 1500 employees-that Steve really is The Biggest Loser, because his posted photos cost him his job and he is fired. Before being escorted from the building, Steve posts back that Rich, Charlie, and Anthony submitted much more embarrassing photos when they tried out for Project Runway. Does Steve have a claim? 23 In Burlington Northern v. White, the U.S. Supreme Court defined this as: Any action that would dissuade a reasonable worker from making or supporting a charge of discrimination

13 What is retaliation? 25 The more of this that passes after the protected act, the stronger the defense against a retaliation claim

14 What is time? 27 Earlier this year, the Supreme Court created a new form of retaliation cliam (Thompson v. North American Stainless)

15 What is third-party retaliation? 29 HYPOTHETICAL Bill and Mary both work for Dubious Motor Works. They work in the same department and their boss previously agreed that they could work the same shift for convenience sake. Mary reports to Dubious management that she observed a supervisor calling a Muslim coworker a rag-head on one occasion. Dubious investigates the incident and disciplines the supervisor. Five months after Mary s report, Bill s supervisor tells him that due to reduced business they are cutting personnel on all shifts. Although he is not losing his job, the restructuring means that Bill must choose between 1) being transferred to another plant across town, or 2) working a later shift. Is there a retaliation claim against Dubious? 30 15

16 Supreme Court decision on Sexting regarding company owned phones/pagers as possibly protected private speech. 31 What is Quon? 32 16

17 NLRB case involving Facebook trash talking against the boss. 33 What is NLRB v. American Medical Response of Connecticut & International Brotherhood of Teamsters Local 443 (Case No 34-CA012576)? 34 17

18 Section 7 of NLRA protects this employee conduct (even on company technology). 35 What is social media speech re: workplace? 36 18

19 HYPOTHETICAL Company AMR has a brand new social media policy thanks to its outside counsel, Steven Twitter Leach. The policy prohibits accessing social media and the Internet during work hours for personal, non-work related reasons. The policy also prohibits any use of social media that could be considered defamatory, harassing, or otherwise damaging to AMR s interests and reputation. Rich, the VP of HR, knows Anthony, Kevin, and Charlie regularly update their Facebook accounts every day at work and send each other salacious YouTube videos. They also started an NCAA betting pool on ACME s Facebook page. Recently, Anthony filed a worker s comp claim against AMR, complaining that he developed carpal tunnel syndrome from excessive computer usage. Rich decided to set up a sting operation to nail Anthony using his work computer for non-work related purposes. He discovered Anthony had set up a blog called My Boss Sucks, in which he complained about constant unpaid overtime and Rich s outrageous work expectations, such as requiring him to pick up his dry cleaning and lunch. Rich was furious and fired him for violating ACME s social medial policy. Anthony visits you to see if he should file a lawsuit against AMR. Your advice? 37 19