Social media use in the workplace continues to increase. According to an August 2012 national corporate survey, 75 percent of employees access social media on the job from their workplace computers or personal mobile devices at least once a day. Their primary purpose for using social media at work is to connect with other employees and online friends. With so many employees using social media in the workplace, it should come as no surprise that employers are increasingly disciplining employees for their social media activity. A 2010 Proofpoint survey revealed that at least 20 percent of companies had disciplined an employee for social media activity. Due to the widespread expansion of workplace social media use over the past three years, that number has undoubtedly increased.
In response to increased employee social media activity and discipline, many companies have implemented policies to govern use of social media by employees. Social media policies generally set forth work rules that prohibit certain forms of social media activity and content, and proscribe various requirements concerning confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government.
Over the past two years, employer disciplinary actions for employee social media use and employer social media policies have come under the scrutiny of the National Labor Relations Board (“NLRB”). The NLRB is the government authority that enforces the National Labor Relations Act (“NLRA”), which is designed to protect the rights of most private-sector employees, unionized or not, to join together in order to improve their wages, working conditions, and other terms of employment.
Fire over Facebook? simplifies key concepts of labor and employment law as it relates to social media activity, analyzes how those concepts are applied to situations involving employee social media activity, categorizes lawful and unlawful social media policies, and provides best practices for drafting, implementing, and enforcing an NLRA-complaint social media policy. Fire over Facebook:
- Identifies employers and employees subject to the NLRA;
- Defines key labor and employment law concepts of protected activity and concerted activity as applied to social media activity;
- Provides actual examples of protected and unprotected social media activity;
- Demonstrate how protected social media activity can lose protection under the NLRA;
- Illustrates how an employer’s disciplinary action in response to certain social media activity violates the NLRA;
- Categorizes work rules and social media policies as lawful or unlawful as determined by the NLRB;
- Discusses consequences companies face for a violating the NLRA; and
- Offers best practices for drafting, implementing, and enforcing an NLRA-compliant social media policy.
I had the pleasure of co-authoring this book with my good friend Heather Melick, Esq. at Luper Neidenthal & Logan in Columbus, Ohio. Heather and I previously authored the Social Media Guide for Lawyers along with our colleagues at the Meritas Leadership Institute. Fire Over Facebook? was published for the Association of Corporate Counsel and sponsored by Meritas Law Firms Worldwide. You can download a copy of the guide a http://www.fireoverfacebook.com.
In a case of first impression, a Florida appellate court held that a Florida law prohibiting certain written threats can reach statements posted on Facebook, the Daily Business Review reports.
Timothy Ryan O’Leary was charged with two counts of violating Florida Statute 836.10 for what he wrote on his personal page. Under the statute, a person who “writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication… containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent,” commits a second-degree felony. The same holds true if the threatening communication is sent to a family member of the person being threatened.
O’Leary referred to one of his relatives and her partner by name in a Facebook post where he lambasted them for their sexual preference and then threatened to “tear the concrete up with your face and drag you back to your doorstep,” among other things. Neither he relative or her partner discovered the post on O’Leary’s page, but O’Leary’s cousin, who was Facebook friends with O’Leary, saw the threatening post and relayed the content of the post to the victims. The trial judge ruled that O’Leary could be convicted of violating the statute by virtue of his threatening Facebook post, even though the post was received only by the victim’s family member.
On appeal, the appellate court confirmed that a person can violate Florida Statute 836.10 through Facebook activity. The panel of judges found it immaterial that O’Leary never asked anyone to view the post and never addressed it to anyone. The court reasoned that by posting his threats directed to his family member and her partner on his Facebook page, it was reasonable to presume that O’Leary wished to communicate that information to all of his Facebook friends, including the victim’s family members with whom he was Facebook friends.
The trial court sentenced O’Leary to 10 years imprisonment followed by two years of community control upon release. The maximum he could have received is 15 years.
An Oklahoma mother was arrested for allegedly attempting to sell her children on Facebook, Mashable reports.
Misty VanHorn, a mother of two in Oklahoma, was arrested last month for alleged trafficking of minors on Facebook by offering her 10-month old and her 2 year-old for $4,000. According to the police report, VanHorn offered the kids several times on the social network — offering the 10-month old girl for $1,000, or a package deal with the two of them for $4,000. And she apparently had a taker.
“Just come to Sallisaw, it’s only 30 minutes away and I’ll give you all of her stuff and let y’all have her forever for $1,000,” read VanHorn’s Facebook message to the Fort Smith woman, as unearthed in the police report by the Daily Dot.
Ironically, police believe VanHorn wanted the $1,000 to bail her boyfriend out of jail. Now she’s being held on a $40,000 bond. The children are in the custody of the state’s department of human services, which alerted the police in the first place.
It amazes me the things people will say and do on social media. Last year, I reported on a woman who was arrested for allegedly attempting to hire a hitman over Facebook to murder the father of her child. This is yet another example of how what you say on social media can (and will) be used against you.
A New Jersey Superior Court judge ruled today that a woman who sent a text message to her boyfriend while he was driving cannot be held liable for the motor vehicle accident he subsequently caused, ABC News reports. A different ruling could have sparked a series of vicarious liability actions for “Facebook while driving” lawsuits.
The decision stemmed from a 2009 case in which Kyle Best was responding to a text message from his girlfriend, Shannon Colonna, while he was driving his pickup truck when he crashed into a motorcycle and severely injured David and Linda Kubert.
In an unprecedented legal twist, the plaintiff’s attorney amended the original complaint filed against Best to include Colonna as a defendant in the case, saying that she had been in frequent texting contact with Best throughout the day and ought to have known he was driving.
But Judge David Rand ruled today in Morris County Superior Court that Colonna could not be held responsible for Best’s distracted driving. “Drivers are bombarded with all forms of distractions,” Rand told the courtroom, according to The Star-Ledger, a newspaper in New Jersey. “I find that there was no aiding, abetting here in the legal sense. I find it is unreasonable to impose a duty upon the defendant in this case under these facts. Were I to extend this duty, in my judgment, any form of distraction could potentially serve as basis of a liability case.”
Had the judge reached the opposite result, this decision could have opened the floodgate for vicarious liability in “Facebook while driving” lawsuits against those who messaged others on Facebook knowing that they were driving. The Facebook Chat feature operates similar to a text message since Facebook’s mobile application notifies users when messages are received. Facebook’s mobile app also notifies users when they are tagged in photographs, invited to events, or receive “friend” requests, among other things. Twitter mobile applications send similar notifications. While the plaintiff was unsuccessful in this “texting while driving” lawsuit, it may only be a matter of time until we see a lawsuit seeking vicarious liability over Facebook or Twitter messages.
The Social Media Guide for Lawyers v. 2.0 is hot off the presses. The Guide serves as a practical resource for how lawyers and law firms can use social media to practically, ethically, and responsibly promote their practice. I had the pleasure of co-authoring the Guide with the esteemed members of the 2010-11 Meritas Leadership Institute.
The first edition of the Guide served as a “Social Media 101” for lawyers. It featured a “Best Practices Guide” on how law firms and individual lawyers can use social media to add value and generate business, provided step-by- step instructions for effectively using the “Big Three”—LinkedIn, Facebook, and Twitter—and included sample social media policies for law firms as they established parameters for social media use within their firms. We have incorporated the majority of that text within the second edition for those just diving into the social media pool.
Version 2.0 elevates lawyers and law firms to the second level of social media use: how to use social media to effectively promote their practice. It shows lawyers and law firms how to harness social media to their advantage by integrating “traditional” media with these new technologies to further expand visibility and exposure. As with the first edition, the goal is not to convince lawyers that social media is the only tool for business development, but rather to demonstrate how social media can serve as yet another tool in a lawyer’s marketing toolbox. Accordingly, version 2.0 of the Guide features:
- A list of Facebook’s new features, including Timeline and the new privacy settings,
- Step-by-step guides for creating and using LinkedIn Groups and Twitter Lists, and
- Tips for effectively using social media to share “traditional” marketing materials.
We hope lawyers and law firms find Version 2.0 of the Guide to be a helpful resource to navigate the sea of social media marketing. Many professionals outside the legal industry have also found the Guide applicable in their profession. We are always happy to receive feedback as we plan to update the Guide annually to address new innovations that can assist lawyers leverage their marketing on social media.
Plaintiffs’ attorneys are jockeying for position to represent shareholders who invested in Facebook’s initial public offering, Law.com reports.
Shareholders filed multiple lawsuits against Facebook, Zuckerber and the IPO’s underwriters, including Morgan Stanley, JP Morgan Chase, and Goldman Sachs. The plaintiffs allege that the defendants misled investors about Facebook’s financial health, resulting in the loss of billions of dollars as the stock’s price fell following the IPO. The plaintiffs further allege that the disclosures to the public about Facebook’s business operations were insufficient, and that it should have disclosed to everyone — not just the underwriting banks that invested in the company leading up to the IPO — that analysts were aware of the risks. But before Facebook and others will stand trial, the question of which Plaintiffs’ firm will lead the charge remains.
Under federal securities litigation rules, the law firm representing the client with the biggest potential loss serves as lead counsel, and those clients are usually institutional investors, Law.com reports. Generally, law firms have 60 days after announcing a lawsuit to amass all potential clients. Thus, the leader of the pack may not emerge until this deadline expires.
Shareholders sued Facebook and Mark Zuckerberg following for allegedly hiding the social media company’s weakened growth forecasts ahead of its $16 billion initial public offering (IPO), according to Yahoo! finance.
The lawsuit claimed that Facebook, Zuckerman, and co-defendants Goldman Sachs and JPMorgan Chase concealed “a severe and pronounced reduction” in revenue growth forecasts resulting from greater use of Facebook’s mobile app or website through mobile devices. It also accused Facebook of telling its bank underwriters to “materially lower” their forecasts for the company. The lawsuit said the underwriters disclosed the lowered forecasts to “preferred” investors only, instead of all investors.
According to the article, Reuters reported that Facebook advised analysts for its underwriters to reduce their profit and revenue forecasts during its IPO road show. It also said that underwriters cut their forecasts after the May 9 prospectus was filed but that these cuts were not publicly revealed before the IPO.
The lawsuit styled Brian Roffe Profit Sharing Plan et al v. Facebook Inc et al, filed in the U.S. District Court, Southern District of New York, Case No. 12-04081, seeks class-action status, compensatory damages, and other remedies.
A group of consumers who unsuccessfully sued Facebook for using their names and photos in ads will not have to pay the social networking service’s legal bills, according to Media Post.
U.S. District Court Judge Richard Seeborg rejected Facebook’s attempt to recoup $700,000 in attorneys’ fees following its successful dismissal of a lawsuit about whether its Friend Finder featured violated California’s publicity law. That law says that people have the right to control the commercial use of their names and images and provides for damages of $750 per violation. The lawsuit alleged that Facebook’s Friend Finder tool unlawfully used their names and photos in ads without their consent.
Seeborg wrote that even though he dismissed the potential class-action lawsuit, he had not decided whether Facebook violated the California law. Instead, he tossed the case because the consumers could not show that they had the right to bring a case in federal court. Therefore, he said, Facebook did not prevail in a way that would entitle it to recover its legal bills.
A more detailed analysis of the Court decision to dismiss the Friend Finder lawsuit is detailed in my August 2011 post which can be found here. While Facebook was unsuccessful in recouping their attorneys fees following dismissal of this suit, the overall resolution of this lawsuit is a “victory” for the social media site in the sense that it may deter future lawsuits over its Friend Finder feature under California’s publicity law (and possibly similar laws in other states).
In a landmark ruling, a U.K. judge has paved the way for high court claims to be served via Facebook for the first time in the U.K., the Daily Business Review reports.
Lawyers for broker TFS Derivatives may use the social networking site to track down its former employee Fabio de Biase as part of a suit brought against the company by investment manager AKO Capital. Attempts to serve the claim on De Biase at his last known address have so far been unsuccessful, prompting TFS to appeal during pretrial discussions for permission to contact the disgraced broker via Facebook
This is not the first time social media has been used to serve pleadings in smaller matters within the U.K. Last May, a U.K. lawyer successfully used Facebook to serve a hard-to-find debtor in a County Court trial. The high court previously allowed an injunction to be served via Twitter. The TFS/AKO case, however, appears to be the first in which Facebook has been used to serve a high court claim.
De Biase has been granted 14 days to respond to the claim, a significant extension from the two-day deadline that is typical in commercial cases, to allow time to check his Facebook account.
Serving pleadings via social media sites is increasingly common in Australia and New Zealand. I have presented on cases from Australian courts that both permit and disallow service through social media sites. As serving pleadings through social media becomes more common abroad, I would not be surprised to see more litigants attempting to serve pleadings through these sites in the United States.
After Yahoo sued Facebook in March for patent infringement, the social networking site fired back earlier this month with a countersuit claiming that Yahoo is infringing on ten of Facebook’s patents, the Daily Business Review reports.
Facebook alleges that Yahoo is violating patents covering services such as its homepage, content optimization, relevance engine, photo-sharing service and advertisements displayed throughout the site. Facebook’s own engineers allegedly invented three of these patents, and another was co-invented by Mark Zuckerberg himself.
This is not the first time Facebook has battled over patents. In 2008, Leader Technologies Inc. sued Facebook, alleging the company infringes a patent on its data management tool. The case went to trial in Delaware district court in 2010, the first time Facebook had ever faced a jury. The jury found Facebook had infringed the patent, but it also invalidated the patent because Leader had sold the technology before seeking patent protection. Leader appealed the ruling to the U.S. Court of Appeals for the Federal Circuit, which heard oral arguments in March. The court has not yet issued an opinion.
Facebook’s countersuit can be found here.