starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

yankees-300x300On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler.  Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.

So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.

The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7” rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”.  New: It applies to Facebook and other types of social media.

And now, even to Facebook “likes”.

In the case, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”Continue Reading Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

I’ll admit something that might seem a little unusual and ironic:  I’ve grown a bit tired about writing about the NLRB and social media. 

Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media. 

I’ve had a little more time to digest the latest memo from the NLRB opining on what is and what isn’t appropriate for employers to have in their policies. And I’ve come to a very serious conclusion:

It’s an utter mess. 

New Guidance = Utter Mess

(Fellow employment lawyers use the phrases “bungled mess” (Jon Hyman), “not good” (Molly DiBianca), and “Inconsistent, overreaching, it’s a hot tepid mess” (Eric Meyer) to describe the latest missive.)

For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal. 

For example, telling employees “Don’t release confidential guest, team member or company information. . . .” is now deemed to be “illegal” because it could, in the NLRB’s view, “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves–activities that are clearly protected by Section 7.”Continue Reading After NLRB’s Memo, Drafting Employment Policies Got Trickier

Various labor & employment blogs over the last week have been nearly hyperventilating over another complaint by a regional NLRB office challenging an employer’s practices as it relates to employee use of Facebook.

For anyone who has been tracking the NLRB’s actions, these filings really should come as no surprise anymore.

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Yesterday, I started my recap of the Connecticut Bar Association seminar on social media & employment law that I had the opportunity to speak at. 

In today’s post, I’m going to focus on another portion of what NLRB Regional Director Jonathan Kreisberg said at the seminar — something that may impact employers that have