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!!!!”


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Connecticut Supreme Court
Connecticut Supreme Court

In an unanimous decision that was released late this morning, the Connecticut Supreme Court ruled the limits to free speech limits established by the U.S. Supreme Court in its Garcetti decision — namely that speech pursuant to an employee’s official job duties was not protected —

Not the Confederate flag.
Not the Confederate flag.

There’s been lots of talk lately about the Confederate flag and its symbolism in the aftermath of the Charleston shootings.

But I wondered: How has this flag come up in the context of employment discrimination cases?

It’s actually referenced a bunch according to a quick search by

Let’s all agree, at the outset, that getting people re-employed — particularly those who have been unemployed for a while — is a worthy goal.

How do you get there?  Job training? Education?

The Connecticut General Assembly is taking a different tactic — just make it illegal for employers to discriminate against those who are

In a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running

Everyone ok out there?

Election Day is Nearly Here

What a wild couple of days we’ve had in Connecticut and, for those still without power, it’s not over yet.  Much like Irene and the October snowstorm before it, Sandy has left her mark. 

But it’s time to get back to business

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.”


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