San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

A Georgia school teacher lost her job over Facebook photos of her holding an alcoholic drink during a European vacation.  A parent supposedly complained and she was forced out.  Now, she is suing for damages.  The district judge granted summary judgment to the employer.  See Atalanta Journal-Constitution report. 

The school teacher, Ashley Payne, claims someone claiming to be a parent sent an email regarding the Facebook photos.  Ms. Payne says there is no evidence the sender was truly a parent.  She claims she was denied the right to a hearing prior to her forced resignation. 

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Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff's Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge's ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

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As I have described here a few times here, here and here, employees may make negative comments on Facebook about their job.  So long as the employee is deemed to be discussing "terms and conditions" of employment with other employees, then yes, the employee can say things the employer would prefer not to hear.  They may do so pursuant to the National Labor Relations Act which protects workers' right to form or merely consider forming a union.  

According to a San Antonio Express News report, there have been some 100 complaints filed with the National Labor Relations Board regarding Facebook comments about work.  See news report.  Employees do not win every case.  I am sure the outcome often depends on the diligence of a particular NLRB investigator and whether the employee can show s/he shared these concerns with co-workers.  

If the employee merely gripes to himself, the comment would not be protected by the NLRA. In one case, the employee complained about pay and poor quality of services provided by the employer.  The NLRB found that with no indication that the employee discussed these problems with co-workers or that she tried to take these complaints to management, then her gripes were not protected by the NLRA.  If the employee cannot show "concerted" activity, then the activity will not fall under the ambit of the NLRA. 

Employers should note one comment by the NLRB's general counsel: many company media policies are overbroad prohibiting any negative comment about the employer on social media.  Such a policy conflicts with the NLRA and should be avoided.  

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A judge has ordered that five employees who voiced complaints on Facebook be reinstated to their jobs and be awarded backpay.  The five employees of Hispanics United of Buffalo complained about the workloads and other conditions of their job.  HUB is a non-profit agency in Buffalo, New York.  Their supervisor then fired them, saying their Facebook posts were harassing a co-worker.  The Director, however, did not fire his secretary who also posted a complaint.  

One of the five filed a complaint with the National Labor Relations Board.  The NLRB enforces the National Labor Relations Act.  The NLRA comntains a provision that prohibits employers from taking action against employees who discuss "terms and conditions" of their job.  Discussing terms and conditions of a job is seen as leading up to forming a union, which is protected activity.  The NLRB judge eventually agreed with the employees.  See NLRB decision.  

There have been many complaints like this one regarding web based complaints.  I discussed some of them here and here. 

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Facebook has become a big part of the lives of many Americans in a very short amount of time.  One photographer recently was hired to take senior pictures at a high school.  The photographer came across a FB page poking fun at some girls.  Someone had created a fictitious name just so they could post hurtful comments about other students.  

Jen McKen decided that she would not take photos of the girls who were using FB to bully other girls.  She emailed them the night before, included a copy of their comments and said she would not take their pictures.  See Jen Mcken's blog about her photo shoot.  She returned their deposits. 

Good for her.  As she explains, she cannot know all the bullies in school.  But, if she knows someone is being a bully, she will not take their picture.  When last I checked, she had 375 comments on her blog post mostly all supporting her stand. 

I am told that Jen's Facebook page has "blown up" from too much traffic.  Many people apparently support her. 

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Well, it had to happen sooner or later.  A parent has filed suit against some middle school boys regarding things they said about the man's young daughter.  The father, a Houston area lawyer, sued the boys over a video posted by the boys regarding his daugther.  See Texas Lawyer report.  The father, acting as "next friend" to his daughter, sued the Houston area boys for libel.   The suit claims the boys claimed untrue facts, and made suggestive, derogatory comments regarding his daughter.  Two of the boys filed pro se answers via relatives denying liability. 

Facebook has become a way of life for many middle schoolers.  This may be the first of many such lawsuits. 

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In a lawsuit in Houston, the defendant has filed a writ with the Texas Supreme Court seeking access to a plaintff's Facebook and MySpace entries.  The defendant wants the entries because they represent a "compilation" of who the plaintiff is.  See petition for writ of mandamus.   In Re Magellan Holdings, LP And Magellan Midstream Holdings, LLC,  No. 01-11-00373-CV. 

The defendant was allowed discovery regarding entries which occurred prior to the plaintiff restricting access.  But, once the plaintiff restricted access to friends, the trial judge refused discovery from that point forward.  Writ of mandamus is the state equivalent of an interlocutory appeal.  So, it appears that the defendant sees the Facebook and MySpace discovery as critical to its case.   The Houston court of appeals affirmed the trial judge's refusal to allow the discovery.  This may be the Texas Supreme Court's first encounter with social media discovery. 

The plaintiff was injured in an accident such that he cannot care for himself.  The defendant's argument is that if the plaintiff can maintain wall postings on Facebook and elsewhere, then he is not as mentally incapacitated as he claims.  So far, the few cases that have addressed the issue generally prohibit discovery without clear relevance to some specific issue.  See my prior post.  A "fishing expedition" type request will not suffice to gain access.  But, as described in my prior post, if a party can show emotional state is truly in issue, or as here where mental state is truly in issue, then the opposing party will probably gain access to your "private" Facebook information. 

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 Facebook has become such a part of the daily lives for many of us that we post without much thought.  Perhaps, that is why one Guadalupe County (near San Antonio) prosecutor violated a court order.  Assistant District Attorney Larry Bloomquist posted an update on a manslaughter trial he was prosecuting.  Mr. Bloomquist had posted an update on Facebook when the trial first started.  The presiding judge then warned both parties against anymore Facebook updates.  See San Antonio Express News report.  

But, when the jury returned a verdict against the defendants, Prosecutor Bloomquist posted the jury result.  "Happy ending," he added.  District Judge Gary Steel was not happy. He found Mr, Bloomquist in contempt and fined the prosecutor $400. 

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You know its bad when a judge orders a debt collector not to contact a debtor, her friends or family on Facebook.  Melanie Meacham filed suit over MarkOne Financial's debt collection practices in Pinellas County District Court - near Orlando, Florida.  See ABA Bar Journal report.  MarkOne declined to respond, but stated last year apparently when the lawsuit first started that it resorts to Facebook only when conventional means of contacting a debtor have failed.  You know they must have contacted a bunch of folks before a judge orders them to stop.....

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 A Dallas personal injury firm has seized on the social media revolution to market its Facebook page.  Eberstein and Witherite offered iPad's to a lucky few and t-shirts if the participants would "like" its Facebook page and submit photos of themselves wearing its 1800 Car Wreck t-shirts.  See Texas Lawyer report.  Clicking on the link to win the iPad takes the participant to the firm website.  The site has a page where the "likers" can describe their recent car wreck and learn the value of a possible case.  

As of early April 14, they had 463 Facebook "like's."  You gotta love the internet....

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The National Labor Relations Board (NLRB) filed a complaint regarding a company which took action against an employee who had posted unfavorable comments about the company on her Facebook page.  See my prior post about this case.  The NLRB and the employer have now settled that case.  As part of the settlement, the company agreed to change its overly broad rules prohibiting employees from discussing their wages, hours and working conditions.  See report. The employer's prior policy had prohibited employees from depicting the employer "in any way" on social media sites or writing disparaging comments about co-workers or superiors.  

So, no agency decision resulted from the complaint.  But, this will surely not be the last Facebook case....

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Social media is that new frontier we always hear about - or one of them anyway.  Some lawyers are still trying to understand the limits.  One lawyer in South Florida was upset about a judge, who he believed was circumventing the speedy trial requirements.  So, he posted a blog entry about a judge.  The judge would ask defendants if they would be ready for trial sooner than normal - apparently trying to avoid the speedy trial law.  The lawyer, Sean W. Conway, did more than discuss trial tactics.  He blastd the judge, making some personal attacks on her.  The Florida Bar Association found that the the lawyer's blog entry violated Florida ethical rules regarding public comments about a judge's integrity.  See ABA Bar Journal report.  Mr. Conway opposed the sanctions on the basis of the First Amendment.  The Florida Supreme Court rejected his argument.  The court issued Mr. Conway a public reprimand and a fine of $1250.  

And, we already know about a judge in North Carolina who had "friended" a lawyer on Facebook who was appearing in a case before the judge.  The two exchanged comments about the trial on FB during the trial.  That judge, Carleton Terry was issued a public reprimand.  See my prior post about this case. 

And, another lawyer in Illinois lost her job with the Public Defender's office because she blogged about cases she worked on.  Lawyers should know not to reveal confidential information acquired from clients. 

These rules are not new.  The social setting is new.  The intimacy of online communication suggests a level of privacy that does not exist.  The best rule of thumb is to assume anything you publish on the web will be viewed by everyone.  So be careful out there.....

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The first thing one defense lawyer does when he is hired for an employment case is check the employee's Facebook account.  See blog post.  Eric Meyer, a defense lawyer, looks for references to the work place or the employer.  He prints out any pictures.  He looks for any information that refutes or refers to any allegation in the lawsuit or complaint.  According to one case, EEOC v. Simply Storage Management, it does not matter whether the employee has opted for privacy or not.  An employer would still have the right to request such information as part of the discovery process. 

Mr. Meyer does not mention that Simply Storage concerned two female plaintiffs who claimed post-traumatic stress disorder.  See my prior post on that case.  So, Simply Storage should not apply to the vast majority of cases in which the plaintiff seeks nothing more than "garden variety emotional distress."  But, the case does suggest that FB entries will be discoverable in some cases. 

Mr. Meyer says he will issue a subpoena if necessary.  He will send a spoliation letter - meaning a letter which warns the employee from deleting anything on FB until the defense can obtain copies. The defense lawyer even says he will review the friends' list to see who might have access to your FB website.  He appears to suggest he would consider asking current employees to access your FB wall and report what they find. 

There was a time when the employer had in its possession all the relevant evidence.  Now, the employee may have some critical evidence, as well.  That does place some responsibility upon the plaintiff employee to safeguard potential evidence. 

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Dan Schwartz, an employer's lawyer, wrote a piece about social media.  He presents talks on social media and is often asked "is it legal" to "friend" a subordinate?  Dan replies, and I agree, that it may be legal, but it may not be prudent.  A teacher who "friends" students and employers who friend employees can present awkward situations.  

Requests by the employer to "friend" a subordinate could be misinterpreted and could cause the employee to feel pressure.  As Dan says, it is better to set these parameters now than after a lawsuit. See Dan's post for more information. 

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So, you burglarize someone's home.  If you are also a Facebook user, you might just post a picture of yourself with your ill-gotten gains on FB.  That's what one burglar did.  See report.  The burglar stole money, an ipod, a laptop and a man's new winter coat from the home of Marc Fisher, a reporter for the Washington Post.  So, of course, the burglar posted a picture of himself wearing the new winter coat, cash in hand on Marc Fisher's son's FB page.  See Marc's blog post.  

The son was able to get Facebook to shut down the burglar's access to the his FB account.  But, you gotta wonder what is going on when a burglar shows off his goods to the world on the son's Facebook account.  As one policeman said, this is not the smartest crook.  The crime occurred in Washington, D.C.  The D.C. police response has been underwhelming so far.....

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Facebook has many uses.  Now, it has helped solve a crime.  A San Antonio child wrote on her mother's Facebook wall that she had been molested.  See San Antonio Express News report.  The message alleged that a man had touched her under her clothes twice in August.  The mother confronted the man.  He then attacked the mother and the child.  Police were called.  The man was arrested.  But for the message on the Facebook wall, the police might never have learned of the sexual assault.  The man has been charged with sexual assault of a child. 

Jorge Pena, an assistant professor at University of Texas at San Antonio in communications, explains that the girls' outcry should not be unexpected.  Most people "friend" people they know, leading to the creation of a tightly knit community online.  

San Antonio police have already had some success with Facebook.  They captured a criminal suspect on their Top Ten list when a Facebook wall posting suggested that he would appear at a particular night club for his birthday.   Eric Dishong was wanted for suspicion of theft, theft of a firearm and burglary of a vehicle.  Now, he sits in a San Antonio jail. 

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 Trial lawyers treat jurors with kid gloves.  We are extra polite, extra respectful in regard to those citizens who perform their civic duty without complaint.  The pay is low, yet their service is invaluable.  But, what do you say when a juror violates one of the basic  requirements of jury duty?  A trial is a serious thing.  When the defendant could go to prison or worse, it is even more serious.  Yet, during one criminal trial, a member of the jury posted on her Facebook wall that she looked forward to finding the defendant guilty.  She posted this comment while the trial was till ongoing.  See report.  The son of the defense lawyer saw the comment and told his mom.  The mother defense lawyer told the judge.  The judge removed the Facebook poster from the jury and replaced her with an alternate. 

Was the jury member listening to the whole trial with an open mind?  Was she ready to listen to the defendant's evidence, which always comes last?  We hope so, but her Facebook comments suggest otherwise. 

The juror was removed form the trial soon enough not to cause a mistrial.  But, the juror may well be found in contempt.  

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In a recent decision, a federal court in Southern indiana ordered two plaintiffs to turn over their Facebook entries, wall postings, photos, groups joined, etc.  See report.  Mike Maslanka reports that the EEOC filed suit alleging sex harassment on behalf of two women.   See EEOC v. Simply Storage Management, LLC.  The Court ordered the women to produce the Facebook updates, wall postings, groups joined, etc. that related to their emotional status.  As the court noted, any posting by the two women is capable of leading to admissible evidence regarding their emotional state for the time period in which they claim severe emotional distress.   The court limits its order to this particular case in which the two women claim post-traumatic stress disorder.  The women do not claim "garden variety" emotional distress.  

The ruling is in keeping with prior decisions that do allow for great discovery when victims claim severe emotional suffering.  The new aspect is that the judge orders production of password protected or "friend protected"  information.  

As I have had to explain to a few clients, when you file suit, you do give up some privacy rights.....

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 Microsoft commissioned a study which found last December that 70% of hiring managers and job recruiters  rejected at least one job applicant based on information the employer acquired online.  See report.  The survey was posed to managers and recruiters in the US, Germany and the United Kingdom.  Watch those Facebook entries.....

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 Facebook is now the third largest country in the world.  That is, if each user of Facebook was a citizen of a country, then that country would be the third largest.  Facebook, Myspace, Linked, the list of social media web sites grows longer each year.  Blogging grows leaps and bounds every year.  Cases in which employers have tried to constrain what its employers write on these sites continues to grow.

Employers have some risk if they try to control what an employee writes.  If an employee posts information about his color, racial background, religion, disability, age or gender and those characteristics then lead to termination at work, the employee may have a right to pursue a discrimination claim.  

Some states, not Texas, have off-duty conduct laws.  Off-duty conduct laws provide that an employee may not be terminated for off-duty conduct that has no effect on the employer.  

An employee might write something online in opposition to discrimination in the workplace.  if the employer then takes some action against that employee, then any resulting adverse personnel action may constitute retaliation.  Retaliation for opposition to discriminatory practices is prohibited by Title VII of the Civil Rights Act of 1964, and all other civil rights statutes. 

If an employee complains online about "terms and conditions" of employment, then the employee is protected by the National Labor Relations Act.  The NLRA was designed to allow unions to form.  Typically unions start with complaints or discussions about workplace conditions.  To qualify, such discussions must be "concerted" and must be for the "mutual aid and protection" of more than one employee.  Concerted activity has always been protected.  But, now it is simply protected in the new online venue. 

That does not mean the employer cannot forbid employees from publicly disparaging their products or the products of competitors.  In one NLRB (National Labor Relations Board) filing, the union started a facebook page.  Sears objected to the extent that the website disparaged Sears products or the products of competitors.  The NLRB essentially agreed. 

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 Facebook account belonging to a tax lawyer is hijacked and used for scam.  Tax Girl's account was hacked and messages were sent out saying she had been robbed in London and needed money.  Tax Girl (aka Kelly Erb) has a wonderful blog on tax law.  Now, her FB account is suspended until the damage can be repaired.  Be careful out there in cyber space.....

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 Five members of a jury "friend" each other during a jury trial.  In another trial, one involving murder, jury members look up key scientific terms on Wikipedia during deliberations.  The jury looked up terms helping them understand how blood settles, an important issue in the murder trial.  Court personnel found the results of the research after the trial was complete.  Of course, a jury is supposed to only consider the facts and information presented during trial.  They are not supposed to do their own research.  Both instances occurred in Maryland.  That state is now considering adding jury instructions to specifically prohibit online research by jury members.  

In the Facebook incident, five jury members formed a clique, allegedly upsetting the jury dynamics.  That is a problem since most jury instructions tell the jury they cannot discuss the case until both sides have rested and concluded their presentation of evidence.  One of the five apparently heard suggestions on how the trial should turn out from an outside observer.  One of the parties to the trial is seeking a new trial.  So, yes, forming a clique too early would be a problem.  See ABA Bar Journal for more info. 

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 So, you're diagnosed with depression.  It will not get better.  You are unemployed for a year and a half.  Your problems mount.  You live in Canada, so you see see gray skies everyday.  Then, your doctor tells you to get away to some sunny climate for a brief time.  You take a trip, take some photos and then you post them on Facebook.  Oh oh.  An insurance company is paying you what are described as sick leave payments.  The insurance company sees those pictures and concludes your depression is over and cuts off your benefits.  That is what happened to one former IBM employee according to Delaware Employment Law Blog.  

The former employee says she is happy in the moment but that before and after she continues to suffer from Depression.  Her lawyer has asked for a new psychiatric evaluation.  Good idea......

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 If you add your boss to your Facebook page, be sure to remember that when you start complaining about your job.  Workplace professors describe a British worker who apparently forgot she had added her boss.  She described him later as a "pervvy wanker" and said other unflattering things about him and her job.  The boss was not amused.....

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 The City of Bozeman, Montana will no longer require Facebook passwords as part of its application process, as reported in Delaware Employment Law blog.  That was a risky decision.  How many applicants would pass up this relatively large employer (in that neck of the woods) if they have to reveal too much.  Too, the city is a government entity.  Requiring a Facebook password would present privacy issues the city need not face.  

But, take this as a warning - there may be more employers out there considering such a measure.  The best protection for any employee is to simply be careful about what you put on Facebook, Myspace, etc.  

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 Hard to believe, but a judge '"friended" a lawyer on Facebook.  The lawyer was appearing before the judge in a case.  The judge in North Carolina would respond to comments from the lawyer about the case.   See story as reported by Delaware Employment Law Blog.   Yea, I would call that "ex parte" communication with a party to a lawsuit.  Which, BTW, is pretty much unethical.....

At some point, the lawyer even responded to one of the judge's responses as "wise judge."  Sheesh.....

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 Facebook, Twitter, Myspace, they are all the rage.  These websites present amazing opportunities to network and stay in touch.  A friend of mine has family all across the US.  They stay in touch with Facebook.  But, for all the possibilities, these websites also present risk.  Chris McKinney explains the risks in his true story of someone who lost a job because of Twitter fun.  But, Michael Maslanka explains how social networking websites are the future and discusses how one company actually allows an hour a week for "facebook" time.  

I kid my son about spending too much time on facebook.  I tell him he does more "work" on Facebook than homework.  Not true, of course, but you see my point.  Shoot, I have my own Facebook page.  It really is a great way to stay in touch or re-connect with old friends.  But, like all concerned employment lawyers, I have to warn you all that there are indeed risks.....

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