IMG_8532 (2)You work for a privately-owned multinational conglomerate with a high-profile CEO who loves Twitter and can’t stop talking.

And that CEO, outside of work, has been critical of lots of people. In doing so, however, the CEO has made particular comments about certain women, comments such as:

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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Since the last time I published a list of labor & employment law lawyers to follow back in 2012, there are just a bunch of you out there now using Twitter. (And I presume you’re already following me @danielschwartz, right?)

So, it’s probably time to update my list of labor & employment law-related people

With all that was going on with the holidays, my colleague Peter Murphy reminds us that ownership of work-related social media is not an issue to take lightly.  Why? Well, let Peter take the story from there….

Back in May, Dan posted some very helpful advice to employers about ownership of work-related social media accounts. 

Have you heard of Justine Sacco?

If you’re on social media, it was hard to avoid over the weekend. She was the public relations professional who posted an offensive tweet on Friday before boarding a plane to South Africa.

Never mind that she had only 200 or so followers when she made the tweet.  By the time she got off the plane, a firestorm had erupted on Twitter that was arguably unlike anything that we’ve seen in some time.

Boing Boing has a detailed account here, but in case you missed the story, here’s the basic outline:

As she embarked upon a long flight to Africa, PR staffer Justine Sacco issued this tweet. At best a darkly ironic self-deprecation that could never fit into 140 characters, it resulted, within bare minutes, in an internet-wide scandal. Even as the plane is still in the air–Sacco presumably oblivious–there [was] a hashtag, #HasJustineLandedYet, a parody account, @LOLJustineSacco, a fake movie poster, and, God help her, a whole entire New York Times article, replete with a stunned disavowal from her corporate employers.

The meme was incredible and fueled by the fact that she was on a long flight — with no internet. By Saturday, Sacco was fired.


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Job Whisperer

It may be hard to remember, but during the first year of the blog in mid-2007 to 2008, there was barely a mention of social media and its impact in the workplace.  Just a single reference in January 2008 noting that with sites like Myspace (!), “employees from around the country can share information instantly, making it much easier to figure out if there are trends associated with the layoff that may give rise to a lawsuit.”

Then, in September 2008, I talked about how employers were considering using those sites to “screen” potential candidates for employment.   I suggested against it at the time.  But what I also suggested back then is that employers needed to recognize the sites’ growing influence.

Yes, some college grads put some boasts on their site, but Facebook has moved so quickly into the mainstream that many people are using it as a communication tool, far removed from their college years.

That was just five years ago, but really, it feels so much longer than that.

Flash forward to today.  91 percent of American own cell phones.  63 percent of those owners use their cell phones to go online, mainly through apps used on devices like the iPhone.  As a September 2013 Pew Internet study found, a majority of Americans “now owns a smartphone, and mobile devices are playing an increasingly central role in the way that Americans access online services and information.”

Social media accounts for a significant portion of that usage.  89 percent (!) of 18-29 year olds online use social networking sites.  Even among 30-49 year olds, that percentage is 78 percent.

But what sites are they using and how?

You’ve no doubt heard of YouTube, LinkedIn, Facebook and Twitter.  Maybe Foursquare and Google+ (poor Google).   And if you’ve been following the blog, you know that Instagram (a photo sharing site) and Vine (a video sharing site) are growing in influence as well.  But what about everything else?

When I spoke to a group of people last week, a few wore their ignorance of social media as a badge of honor.  But in my view, employers ought to understand the scope of the issue; they may not need to use all the sites, but it’s only when you understand how much is out there that you begin to appreciate the scope of the social media issue.

Take, for example, Whisper to which I referenced yesterday. A few people responded, “huh?”
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In my presentations on social media this year, I’ve talked a bit about the Phonedog v. Kravitz case where an employer sued a former employee who continued to use the company Twitter account he had started.

Are Your Accounts Under Lock & Key?

When the employee left, he merely changed the