Three Strikes and You’re Out! Part Three: The Brave New Frontier in Employment Law – Social...

Three Strikes and You’re Out!

Part Three:

The Brave New Frontier in Employment Law – Social Media

Jim DrozdowskiV.P. & General Counsel

North Coast Container Corp.

Proprietary & Confidential

Social Networking &Employer Monitoring


Social Networking Sites As A Recruiting or Hiring Tool

45% use social networking sites to screen candidates

18% reported finding content encouraging them to hire

FacebookLinkedInMySpaceBlogsTwitter


Minimizing Employee Misuse of Social Networking Sites

66% of employers monitor Internet connections

12% monitor the “blogosphere” to see what’s being written about the company

10% monitor social networking sites 43% monitor e-mail


Legality & Advisability

Posting personal information without limiting availability weakens the “expectation of privacy”

Employers may lawfully search/Google for information about applicants

Mullins v. Dept. of Commerce, 244 Fed. Appx. 322, 2007 WL 1302152 (Fed. Cir. 5/4/07)


posted inappropriate photos or content about drinking or drug use

bad mouthed his/her previous employer, co-workers or clients

made discriminatory comments lied about qualifications shared confidential information

from previous employer

What if, on a Social Networking Site, the Candidate:


For Example:

“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

“Who is the hiring manager[?] I’m sure they [sic] would love to know that you will hate the work. We here at Cisco are versed in the web.”

Molly DiBianca, Twitter Saves Cisco a Bundle of Money, Del. Emp. Law Blog (3/30/09)


The Other Side of the Coin:

Candidates should be considered solely on the basis of their qualifications and on the likelihood of successful job performance, without regard to any protected characteristic

Ability to do job Interest in job


Information to avoid. . .

When/where born Union activities Photographs? Past or current medical

conditions Native language Past litigation experience


Potential Landmines in your own posts

Admissions to support co-worker litigation

Admissions to support third-party claims

Bad public relations

Perhaps the Biggest Landmine:National Labor Relations Act

Section 7 of the NLRA protects “concerted activities” “Concerted activities”

2 or more employees Mutual aid and protection

Protections also apply in non-union context


Recent NLRB Case

American Medical Response of CT

Dawnmarie Souza, an EMT Souza posts negative

comments about her supervisor on her private Facebook page


Recent NLRB Case Souza: “looks like I’m getting some time off. Love

how the company allows a 17 to be a supervisor!” [A “17” is the employer’s code for a psychiatric

patient] Commenter: What happened? Commenter: What now? Souza: Frank being a d***. Commenter: I’m so glad I left there! Commenter: Ohhh, he’s back, huh? Souza: yep has a scumbag as usual [sic] Commenter: I am sorry, hon! Chin up!


Other Recent Cases

Five employees fired for posting Facebook comments criticizing their employer’s “staffing levels and workloads”

T.V. reporter who tweeted: “What!?!? No overnight homicide? WTF? You’re slacking Tucson!”



Legal considerations. . . .

Nexus to job performance “Concerted protected

activity” Consistent enforcement Avoid fine distinctions

e.g., selective enforcement to prevent union chatter


More Fun with Social Media

Would you hire this lawyer?

Cleveland Ladies Starting 'Bushes For Bron' Campaign Posted by Vince Grzegorek on Mon, Jun 14, 2010 at 12:08 PM

Sorry, Edward. Cool it with the trimming for a little bit.

Local ESPN radio affiliate WKNR 850 recently launched Beards for Bron, a plea to male Cavs fans everywhere to put down the razor in a show of solidarity for King James and their desire for him to remain in Cleveland. A nice gesture, perhaps, but one that holds approximately zero hope of achieving real change, much like similar movements and gesture throughout the country from cities hoping to lure the Chosen One.Ashlie Case — Cleveland resident, Cavs backer, Snoop fan — has a better idea, one that has potential to actually effect real change.

Witness Bushes for Bron.Ashlie wants Cleveland's ladies to put down the razors, too. Yep, we're talking a town of women going au naturale, boys.

What better way to push the men in the Cavs organization to get their shit together and lock down LeBron? That's motivation, my friends. This could put the whole free agency mess to bed in a matter of weeks.

A real no-brainer. . . .Here's the breakdown from Ashlie herself, exclusive to Scene, on the Lysistrata-esque querrilla

tactics that could save Cleveland.

Bushes for Bron: Snoop approves.

“Bushes for Bron is the feminine counterpart to Beards for Bron. And it is exactly what it sounds like: a resolution by female Cavs fans to refrain from waxing, shaving, or otherwise grooming their ladyparts until LeBron signs up to extend his tenure in Cleveland. No razors, no laser treatments, no Brazilians. (My apologies to Kate at Zen. I'll see you after free agency.) And to the extent anyone still uses Nair, put that away, too.

Obviously, a man sporting a beard is a much more public display of support for retaining our homegrown prodigy. But perhaps the impact of the Bushes campaign will be felt in a much more personal way, and it certainly has the potential to hit closer to home.

I'm not convinced that the moratorium will keep our local hero in a Cavs uniform. Unless, of course, we can convince LeBron's girlfriend to sign on. That would certainly improve our chances.”

Another Facebook Offense • Intermittent FMLA for chronic back pain• Day off due to “crippling” back pain• Facebook photos partying at local Oktoberfest• Employer’s “honest belief” employee engaged in

fraud justifies discharge• FMLA fraud can be a terminable offense

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir., Nov. 7, 2012)

Around the world in 72 hours

Meet Kelly Blazek, the self-proclaimed “Mother” of the Cleveland Job Bank

Receives email from recent college grad/job seeker, wanting to connect on LinkedIn

Copyright North Coast Container 20

Around the world in 72 hours Kelly sends a scathing response:

Copyright North Coast Container 21

Apparently you have heard that I produce a Job Bank and decided it would be stunningly helpful for your career prospects if I shared my 960+ LinkedIn connections with you – a total stranger who has nothing to offer me.

I love the sense of entitlement in your generation. And therefore I enjoy denying your invite.

You’re welcome for your humility lesson for the year.

Don’t ever write me again.

Social Media Lashes Out in Defense of the Job Seeker

Copyright North Coast Container22

It only takes a few shares. Bet her precious

contacts will drop her like a bad habit.

Trust me people.. She may be #IABC, but Kelly Blazek does not represent our profession.

Within 72 hours. . . .

The story made headline news in Cleveland

And on CNN And the BBC

A “Krabby Blazek” parody was created on Twitter

Blazek surrendered her “Communicator of the Year” award


QUESTIONS?

Copyright North Coast Container | November 23, 201324

Three Strikes and You’re Out! Part Three: The Brave New Frontier in Employment Law – Social...

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