Archive for the ‘employment’ Category

Ugly Blogging from Coyote Ugly CEO Not Actionable

Wednesday, September 26th, 2012

Coyote Ugly Nashville logoSometimes, it takes a federal judge to explain something that ought to be common sense.

Misty Blu Stewart learned this the hard way, in her ongoing class action lawsuit under the Fair Labor Standards Act against her former employer, Coyote Ugly Saloon.

Stewart claimed that an expletive-laced blog post by Coyote Ugly CEO Liliana Lovell was retaliation against Stewart.

The only problem? Stewart no longer worked for Coyote Ugly at the time of the post.

According to the court: “Under the FLSA, an ‘employee’ is defined as . . . any individual employed by an employer.’” As such, her retaliation claim had to be denied.

Here’s a quick chronology, as set forth in the relevant court opinion, Stewart v. CUS Nashville, LLC, No. 311-cv-0342, 2012 WL 4049968 (M.D. Tenn. Sept. 13, 2012):

  • Sometime before April 7, 2011, Stewart and Coyote Ugly Saloon in Nashville part ways (the post in question, and the court opinion itself, refer to Stewart as having been “terminated”).
  • On April 7, 2011, Stewart files suit, alleging FLSA claims “arising out of Coyote Ugly’s alleged operation of an illegal tip pool and its failure to compensate its employees for work performed off-the-clock and during overtime hours.”
  • On or about May 11, 2011, Lovell creates the offending post on the Coyote Ugly website, saying in reference to Stewart and her lawsuit, “my thoughts are f* *k that b* *ch.”
  • On Feb. 13, the court certifies a class action, with two classes whose parameters track the claims Stewart made in her initial complaint
  • On July 31, Stewart files a motion to amend her complaint to, among other things, add a retaliation claim, based on Lovell’s post.

So, in simple terms, Stewart was essentially telling the court: “Judge! The Defendants just called me a name!”

The hoped-for response from the judge would have been something along the lines of “Defendants, stop calling Plaintiff that name! Just for that, you’re getting a timeout . . . to the tune of several thousand dollars!”

Instead, the only thing the judge could do, having been told of Defendants’ name-calling, is simply to say, “OK. So what? Sticks and stones, Plaintiff, sticks and stones.”

So, just to wrap things up:

  • Stewart is still not a Coyote Ugly employee.
  • Coyote Ugly is still facing the class action suit Stewart brought.
  • Employer retaliation still cannot be effected against people who are not employees.

EEJ’s thoughts:

Even if blogging “f* *k that b* *ch” doesn’t create retaliation liability, it’s still bad news for the defendants. You can bet Stewart’s attorney is working on a plan to make the blog entry admissible evidence for one of the remaining claims. Even if this kind of wash-your-mouth-out blogging doesn’t get you a time-out from the judge, it sure won’t win you friends in the jury box.

Christine Neylon O’Brien on Facebook Firing

Thursday, January 19th, 2012

Boston College sealChristine Neylon O’Brien, Professor of Business Law at Boston College’s Carroll School of Management, has published The First Facebook Firing Case Under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media in the Suffolk University Law Review (vol. 45, pp. 29-66, December 2011). Here’s the abstract:

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter – much like the earlier evolution of email, IM and web 2.0 – have changed communications, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones, and other data interfaces including iPads and eReaders, and even internet hotspots in motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.

In the first case of its kind, the National Labor Relations Board (NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her personal password-protected Facebook page. The NLRB alleged the employer retaliated against the terminated employee for her Facebook postings and for requesting a union representative at an investigatory interview that led to her discipline, thus violating her Weingarten right. Most importantly, the NLRB maintained that the employer’s social media policy was overbroad because its rules on blogging and internet posting, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, interfered with employees’ rights to engage in concerted activities protected by section 7 of the National Labor Relations Act (NLRA). The AMR case and the NLRB’s ongoing interest in employer social media policies has signaled that the agency will prosecute companies whose policies interfere with employee communications concerning wages, hours, and working conditions, and other matters for mutual aid or protection on social media sites. Employers should review their policies governing employee communications, including the use of email and social media during non-work time, to ensure compliance with the NLRA.

Trial Court Upholds $60K Award Against Johnny Northside

Tuesday, September 13th, 2011
Landmark building at the University of Minnesota

The University of Minnesota (Photo: EEJ)

Judge Denise Reilly in Minneapolis has upheld a jury verdict requiring blogger John Hoff (a/k/a “Johnny Northside”) to pay $60,000 for his blogging about Jerry Moore. This is a setback for free speech and bloggers’ rights, but I believe Hoff will eventually win this suit on appeal.

Moore worked at UMinn’s Urban Research and Outreach/Engagement Center where his job was studying home foreclosures. The dispute started when Hoff took to his Adventures of Johnny Northside blog to accuse Moore of involvement in a “high-profile fraudulent mortgage.” Moore was then immediately terminated by UMinn. Moore then sued Hoff.

The crazy thing about the story is that what Hoff wrote was true.

Truth, as you probably know, is a defense to defamation. But Moore’s cause of action wasn’t defamation; it was “tortious interference” with contract and prospective economic advantage.

Economic interference claims reside in the backwater of tort law. Most law-school classes in torts don’t bother to cover them. But the reality is that they are well-used in the courts. (I teach torts, and yes, I do teach economic interference.)

Based on claims of tortious economic interference, the Minneapolis jury awarded Moore $35,000 for lost salary and $25,000 for emotional distress. Real money, obviously.

Of course, not all jury verdicts become executable judgments. Trial judges can throw them out or reduce them. And appeals courts can overturn them. But we now know that this verdict has taken a big step forward, since the trial judge has approved of it. That means that if Hoff is going to be let off the hook, it will have to be by an appellate court.

An amicus brief [pdf] from the Minnesota Pro Chapter of the Society of Professional Journalists argued, correctly in my view, that when a claim is in essence a defamation claim, then the courts should apply the safeguards of defamation law’s defenses – even when the claim is dressed up as one for tortious interference.

The amicus argued:

Outside the context of online publications, Minnesota courts have long held that merely providing truthful information cannot provide the basis for an action for tortious interference with contract or with prospective economic advantage, and both federal and state courts have rejected attempts by plaintiffs to evade the requirements of defamation law with the claim is essentially a defamation claim. … The court should … reject the plaintiff’s attempt to recover under a theory of tortious interference when that claim is based upon the same statement as his failed claim for defamation.

Unfortunately, this argument didn’t carry the day. At least not yet.

Hoff’s lawyer has vowed to appeal, and I think Hoff’s chances on appeal are excellent.

The correct view of the law is that the First Amendment protects what Hoff did here. And I think we can count on the courts to uphold that view. Consider that the U.S. Supreme Court held just this year that the First Amendment was effective in shielding the way-out-there members of the Westboro Baptist Church, who were found liable for intentional infliction of emotional distress when they picketed funerals of fallen soldiers with hate-filled signs such as “Thank God for Dead Soldiers.” (Snyder v. Phelps, No. 09–751 [pdf])

The way I see it, if there’s a First Amendment for Fred Phelps, then there’s just got to be one for Johnny Northside.

Happy Labor Day, Bloggers

Monday, September 5th, 2011

Double dump truck in Seattle at construction site

Happy Labor Day to everyone in the United States and in Canada (Labour Day, for you guys).

If you don’t have the day off, and you find yourself blogging at work, check out the EFF’s Blogger Guide on labor law.

Thanks to the National Labor Relations Act, workers in the U.S. who are fired for blogging about how lousy their workplace is may be protected under federal law. (An example is an ambulance company who fired a worker for griping about work on Facebook, and then was given the smack down by the National Labor Relations Board.)

You know what they say, work is the curse of the blogging class. So read up on what you can get away with, and blog on!

HuffPo’s Motion to Dismiss Tasini’s Lawsuit

Wednesday, August 31st, 2011

Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.

First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship?

Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.

The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.

Rule 12(b)(6)  allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”

What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:

Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …

But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.

Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.

That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.

What Do You Do with a Blogging Teacher?

Monday, August 29th, 2011

Blogging English teacher, Natalie Munroe (Photo apparently from Munroe's own blog.)

Suburban Philadelphia English teacher Natalie Munroe wrote a personal blog on which she called her students “disengaged, lazy whiners,” “utterly loathsome,” and “frightfully dim.”

She was suspended last February, and now, after a summer of blogging about such things as blueberry-cranberry bread pudding, Munroe is back in her classroom, but parents are still mad.

The Associated Press reports that over 200 parents at Central Bucks East High School have informed school officials that they want their children kept out of Munroe’s classes. Yet some out there hail her for telling the truth.

Munroe says her blog quotes have been taken out of context and that the media has made inaccurate statements about her. So I’ll let her provide some context with a quote from her blog post the day the scandal broke: (And note that when Munroe says “blogs” she apparently means “blog posts.”)

Of my 84 blogs, 60 of them had absolutely nothing to do with school or work. Of the 24 that mentioned it, only some of them were actually focused on it–others may have mentioned it in passing, like if I was listing things that annoyed me that day and wrote without any elaboration that students were annoying that day. …

Contrary to what seems to be popular belief, I didn’t–and don’t–feel negatively toward all students. As I mentioned in another blog that nobody chooses to talk about, there were delightful students in school, too. I fondly discussed some wonderful students who shined in the school’s Jazz and Poetry Festival, and I even said that I was proud to be part of the school at events like that.

But the fact remains that every year, more and more, students are coming in less willing to work, to think, to cooperate. These are the students I was complaining about in my blog. The same way millions of Americans go home at the end of the day and complain about select coworkers or clients or other jerks they had to deal with, I came home and complained on my blog about those I had to deal with.

Unfortunately, the 84 prior posts have been deleted. Without Munroe making her old posts available, it’s hard to form your own opinion from scratch. (And unfortunately, the Internet Wayback Machine doesn’t have the old posts either.) So I guess we’ll have to say she’s at least guilty of writing something regrettable.

One interesting note is that Munroe apparently tried to keep her blog anonymous. But she didn’t try very hard. For instance, she didn’t use student names or her own whole name. But she did sign her blog as “Natalie M.,” and she apparently included a picture of herself as well. So, not real anonymous at all.

So, what’s the legal dimension here? While some people are calling for Munroe to be fired, one blogger wants the school district to keep her on to avoid a lawsuit.

Was Munroe’s blog protected free speech?

That’s a good question. Off-site speech by public employees concerning their job is an area where the First Amendment has an impact but doesn’t offer full protection. There’s a lot of case law in this area, but I haven’t researched it. So, I can’t say which way I think this would come out.

Also, it’s possible Munroe could make the argument that her blogging is protected under federal labor law. I don’t know how strong that argument would be, and the strength of it would in part depend on the content of her posts and her intended audience, which are facts that are obscured by the deletion of her old posts.

Then, of course, there’s the issue of whether a firing would violate the collective bargaining agreement between the teachers and the school district. That’s something that would depend entirely on the CBA’s terms.

Bottom line, apparently the school district has determined it is not legally in the clear to fire her. That means this story will eventually fizzle out.

A few years from now, it will be something a few students gossip about sporadically: “Did you know that Ms. Munroe … “ A few years after that, no one will remember it at all. (I read recently that Anita Hill’s students today generally have no idea about her nationally famous role in the Clarence Thomas hearings. That kind of boggles my mind … )

Anyway, I guess the broader lesson we are learning is that high school teachers trail only slightly behind high school students and maybe just ahead of high school administrators in their moth-to-a-flame attraction to blogging trouble.

Does LinkedIn Trade Professional Pitfalls for Boredom?

Tuesday, May 24th, 2011

Evan Brown on the latest This Week in Law podcast makes some good points about LinkedIn. At about 11:50 in, Brown describes LinkedIn’s “sweet spot” when it comes to social networking:

[LinkedIn] purports to be and indeed is professional. So, for that reason, folks who aren’t necessarily early adopters … they feel safe joining in there. You know, it’s like, any place where a professional can go and it’s okay to wear a tie, they’ll think, oh, well this is okay. At least I’m not going to stumble and fall and do something that I shouldn’t be doing. I’m not going to embarrass myself. I’m not going to, you know, be falling into some pitfall. You know, the word “pitfall” is something professionals love talking about – lawyers especially – all the “pitfalls of social networking.” You know? There’s very few pitfalls at LinkedIn. So, you know, because of the sweet spot that it’s in, it has this ability to draw in somewhat of a mainstream adopter kind of crowd. And that arises just as much from the fact that, you know, it’s boring there. You don’t go to hang out on LinkedIn.

Well said.

Excerpts and My Analysis of Tasini v. HuffPo

Wednesday, April 13th, 2011

The complaint in Jonathan Tasini’s class-action lawsuit against the Huffington Post, owner AOL, and founder Arianna Huffington has been posted online.

I’ve gone through it. If you don’t feel like reading the whole thing, here are excerpts I’ve transcribed that I think capture the essence of the complaint. (Italicized portions are my own paraphrasing. Otherwise, it’s quoted material.) As you’ll see, I’ve interspersed my own thoughts.

JUDGE GRIESA 11 CV 2472

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Jonathan Tasini, individually and on behalf of all others similarly situated, Plaintiffs, v. AOL Inc., TheHuffingtonPost.Com, Inc., Arianna Huffington and Kenneth Lerer, Defendants.

¶1:
This action seeks to vindicate the fundamental principle that creators of value deserve to be compensated and, in particular, addresses the important issues of (a) whether in the digital age, profitable digital media sites should be required to compensate the creators of valuable content from which such sites derive substantial revenues and (b) if so, how the creators of content should be compensated.

¶3:
Of the $315 million paid by AOL to purchase HuffPo, at least $105 million was due to the contribution of content by the unpaid bloggers.

¶6:
… TheHuffingtonPost.com’s continued assertion that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes has the broad detrimental effect of setting an artificially low price for the valuable digital content created by Plaintiff and the Classes, depressing the market for such content and, over the long term, having a serious depressing effect on the value of intellectual content being created by Plaintiff and the Classes and on the ability of Plaintiff and the Classes to support themselves as creators of high quality, engaging, digital content. According to Article 1, Section 8 of the United States Constitution, the purpose of copyright is “to promote the Progress of Science and the useful Arts” by allowing creators to be appropriately compensated for their contributions. Yet, despite our founders’ intent, TheHuffingtonPost.com continues to assert that it, alone, should be enriched by the valuable content provided by Plaintiff and the Classes.

This leads me to one of the problems with this lawsuit. Should Tasini be successful with is unjust enrichment argument, which I don’t think he will be, he is vulnerable to a copyright pre-emption argument. That is, AOL and Arianna can argue that Congress’s legislation in this vein cuts off common-law causes of action that might otherwise exist. In fact, I think it was a bad choice for Tasini and his attorneys to put this reference to copyright and the Constitution in here; it just wraps up the pre-emption argument with a bow.

¶¶11, et seq.:
Bio of Tasini: Union leader, social activist, writer on work/labor issues, successful U.S. Supreme Court litigant.

Arianna, can there be any surprise that this guy ended up suing you with a résumé like his?

¶23:
There are approximately 9,000 unpaid content providers at TheHuffingtonPost.com

That makes it ripe for a class action, provided other elements are met …

¶¶29-33:
Jurisdiction and venue. Allegations to create subject-matter jurisdiction under the Class Action Fairness Act of 2005 and establish the appropriateness of filing the litigation in federal court in New York.

¶33:
Finally, the “Terms of Use” for TheHuffingtonPost.com states “Any dispute between us will be governed by New York law.”

Yikes – what an endorsement for the enforceability of terms of use! I wouldn’t have gone there. What else is in the terms of use that Tasini would not want to be enforced?

¶50:
… Defendant Arianna Huffington’s statements indicate her own belief that the creators of content should be fairly compensated for the value provided.

¶51:
For example, in her book “Third World America” (Crown 2010), Ms. Huffington … states: “… The middle class, by and large, plays by the rules, then watches as its jobs disappear. The corporate class games the system – making sure its license to break the rules is built into the rules themselves.”

¶52:
Towards the conclusion of “Third World America,” Ms. Huffington writes that to avoid a “Third World America,” she believes the nation needs to make certain it is “a place where economic opportunity is once again real for everyone, not just the economic elite” and “a place where greed and selfishness are no longer rewarded and the ‘least among us’ are given a helping hand, rather than the back of it.” (page 237).

That’s pretty funny. She’s something like the opposite of a “victim of her own success.” That is, Arianna is basically a “beneficiary of her own failure.” Well, okay, you can accuse limousine liberals of being hypocrites. You can wave at them through the tinted windows. But they are just going to drive off to the next black-tie fundraiser you’re not invited to.

¶53:
HuffPo is unlike other media outlets in that HuffPo selects its content providers and does not allow content from non-vetted providers.

¶56:
Plaintiff and the Classes were not officious contributors to the TheHuffingtonPost.com and, rather, were carefully selected, and in some cases recruited, by TheHuffingtonPost.com to perform services for it.

One of the purposes of those allegations, I suppose, would be to defeat sky-is-falling type arguments that HuffPo might make, such as, “Your Honor, if you award compensation to Tasini and the HuffPo unpaid bloggers, you’ll open it up for people to employ themselves by stuffing sites with unsolicited content and then sending the site owners a bill.”

¶57:
… the vast majority of the Classes’ members, like Plaintiff, are quasi-professional writers, meaning that they occasionally earn fees for their writing, but it was not their principal occupation. …

¶62:
Executives of AOL noted that $20 million in “cost savings” would be recognized by AOL due to TheHuffingtonPost.com’s history of not compensating Plaintiff and the Classes for high quality content. …

¶64:
Allegations about “The AOL Way” document discussing how each post is tracked and evaluated in terms of the cost required to produce it and the revenue gained from it.

¶69:
Upon information and belief, AOL only offers to pay amounts for content which are less than the revenue potentially earned from that content. …

That sounds suspiciously like capitalism to me.

¶71:
In sum, by eliminating all costs associated with content production and placing those costs with Plaintiff and the Classes, Defendants are being unjustly enriched.

¶77:
Despite the value provided, Plaintiff and the Class were only offered “exposure.”

¶85:
Because of the system set up by TheHuffingtonPost.com, Plaintiff and the Classes gave the Defendants more exposure than vice-versa, namely, Plaintiff and the Classes typically shared the link to the content provided with their social networks, sharing via electronic mail, Facebook, Twitter and the like (as so encouraged and directed by TheHuffingtonPost.com) – driving internet traffic to the HuffingtonPost.com and creating value for the Defendants.

¶91:
… Arianna Huffington, at a meeting in Beverly Hills, California, February 8, 2011 stated: “People have not fully adjusted to the fact that self-expression is, for many people, a new source of fulfillment and entertainment … We have 9,000 bloggers with a password and literally get hundreds of submissions that our editors have to process. People are dying to blog for us … ”

¶¶92, et seq.:
Complaints that HuffPo doesn’t give contributors information about how much exposure they are getting, such as how many page views they get.

¶94:
Finally, TheHuffingtonPost.com’s assertion that “writers write for free” serves to bring an ages-old falsity into the digital age, one this Court should reject. Indeed, writers, like all creators, deserve a share of the value they create and allowing such value to rest solely with Defendants is against equity and good conscience.

¶¶100, et seq.:
FIRST CAUSE OF ACTION
DECEPTIVE BUSINESS PRACTICE
(N.Y. Gen. Oblig. Law §349 et ff. as per the Terms and Conditions)
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶103:
It is deceptive to promise exposure (visibility, promotion and distribution) in lieu of monies to Plaintiff and the Classes, but then not provide a real and accurate measure of exposure and it is deceptive to solicit content on the promise of providing a free forum for ideas when, in fact, a product with tremendous value is being created by the solicited and uncompensated services provided.

Sorry to say it, but this doesn’t sound deceptive to me. Tasini and unpaid bloggers got exposure. Tasini wants more than that, but I don’t see how he was deceived into thinking he would get it.

¶¶106, et seq.:
SECOND CAUSE OF ACTION
UNJUST ENRICHMENT
PLAINTIFF AND THE CLASSES v. DEFENDANTS

¶107:
Plaintiff and the Classes provided valuable services to Defendants, services that were encouraged and accepted by Defendants.

This, I think, is the essential problem with the unjust enrichment claim: The defendants were actively encouraging the labor. The prototypical unjust enrichment claim is when an unconscious person arrives at the emergency room and receives life-saving treatment. The patient never agreed to receive the care, so does the patient owe the hospital and doctors compensation? The courts say yes, under a theory of unjust enrichment. It would unjustly enrich the patient to allow him or her to retain the benefits of the medical treatment without paying for it. Part of what makes it unfair is that there was no chance for the parties to make a contract, since the patient was unconscious. Now, imagine a patient came into a clinic and asked – even actively encouraged – being treated for free. If the clinic provides treatment for free, you can’t say the patient was unjustly enriched. There’s nothing unfair – nothing unjust – about the patient retaining the benefits of the treatment in this case, because the patient went looking for free treatment and got it.

Ironically, Tasini’s case for unjust enrichment would be stronger if HuffPo had somehow ended up with the content despite not having sought it out. I don’t know how that would hypothetically happen, but if it somehow did, then unjust enrichment might seem to fit the bill. Unjust enrichment is a flexible doctrine, and it’s not limited to the ER hypothetical or highly similar cases. But under the circumstances in this case, I just don’t see it.

NLRB Settles Case, Ambulance Company Agrees to Revise Overly Broad Blogging Rules

Tuesday, March 1st, 2011

The National Labor Relations Board ended up settling its case against Connecticut ambulance company American Medical Response, who fired an employee for posting comments about her supervisor to Facebook.

Here’s how the NLRB explained it:

The NLRB … alleg[ed] that the discharge violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-workers. Under the National Labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers and others.

The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

Sarah Jones Wins Early Motion Against TheDirty.com

Wednesday, February 2nd, 2011

Sarah Jones (Photo, Cincinnati Bengals)

Eric Goldman on Technology & Marketing Law Blog writes about a recent decision in the case of a school teacher and NFL cheerleader against about the meanest blog ever to sail the cyberseas: Jones v. Dirty World Entertainment, 2:09-cv-00219-WOB (N.D. Ky. Jan. 21, 2011).

Jones defeated The Dirty’s §230 safe-harbor defense at the earliest opportunity The Dirty had to bring it up, a motion to dismiss based on the pleadings. But the defense isn’t dead. Now the parties will go through the discovery process – producing documents, undergoing depositions – and we’ll see whether Jones can defeat the §230 defense on the facts.

Goldman doesn’t seem bullish on Jones’ long-term prospects. “Based on what I saw in this ruling, thedirty.com’s editorial contribution beyond the user-submitted content appears to be minimal and probably legally inconsequential,” Goldman writes.

More from me:

WSJ on Employers Stepping on Social Media Mines

Friday, January 21st, 2011

Wall Street Journal logoFor a long time there’s been a lot of talk about how employees and job candidates are hurting themselves by posting to blogs, Facebook and Twitter. But, as The Wall Street Journal notes in a story today by Jeanette Borzo (page B6 in print), employers are increasingly causing a mess for themselves by way of social media too.

The American Medical Response case has a hearing next week, the WSJ reports. There, the employer is accused of violating federal labor law for terminating an employee based on postings to Facebook.

The WSJ article also discusses the case of restaurant managers of Hillstone Restaurant Group in New Jersey who broke into a password-protected MySpace page that employees had set up. The employees were using the MySpace page to gab about work. The restaurant group was sued for violating the Stored Communications Act, a federal law, and was ordered to serve up $3,403 in back wages and $13,600 in punitives. The suit was eventually settled pending appeal.

Now, on a bit of a sidenote, I thought it was noteworthy that the Wall Street Journal article disclosed the following:

(Myspace is a unit of News Corp., which also owns The Wall Street Journal.)

Isn’t that a little surprising? I mean, I of course know that Rupert Murdoch bought MySpace for half a billion dollars a few years ago. I just didn’t know that MySpace still existed.

Ha ha. And while we’re on that invective tangent, here’s Ross Pruden on how Facebook vanquished MySpace. Interesting business-managementy stuff.

(By the way, I’ll confess I’m a little loathe to link to a Wall Street Journal article when I know that they may dump it behind their paywall any minute. I’ve avoided the WSJ in the past because of that. But I’m letting it go this time.)

Fired Lawyer and Sex Blogger Sues Allen & Overy

Monday, December 20th, 2010

From the homepage of self-described "naked poet," Deidre Dare (a/k/a Deidre Clark)

Deidre Clark was fired from the Moscow office of London-based law firm Allen & Overy after it came to light that she was behind the online identity of Deidre Dare (NSFW).

Clark, a lawyer from New York, blogged about her sex life and penned an online book, Expat, about sex and drugs in the Russian capital, which she said was based on her own experiences at A&O.

Word from A&O is that Expat used names of A&O employees and even the name of a client.

In addition to her book, Clark’s website contains poetry, philosophical musings, and a set of boudoir photos of herself. Let me warn you: Her whole site should be considered NSFWUYHTEOBALP (Not Safe For Work Unless You Have The Excuse Of Being A Law Professor).

She is now suing her former employer for wrongful termination, seeking more than $5 million in damages.

I don’t know much about British or Russian employment law, but my thought would be, good luck with that!

CMLP is Hiring

Tuesday, December 14th, 2010

Citizen Media Law Project, a program of Harvard’s Berkman Center for Internet & Society, is hiring an assistant project director / program fellow. The position is for lawyers with at least three years experience in IP, media, or the like. The job is in Cambridge, Mass., just outside of Boston.

Amway Beats a Grumbling Blogger in Court in Michigan

Wednesday, November 17th, 2010

Evan Brown on Internet Cases writes about Amway Global v. Woodward, Case No. 09-12946 (E.D.Mich. September 30, 2010):

The court upheld an arbitration decision that the nonsolicitation clause in the Amway’s agreement with sellers (a.k.a. “IBOs”), which prohibited “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to compete with”, was breached when an Amway seller blogged about his decision to leave Amway, posting, “[i]f you knew what I knew, you would do what I do.”

The decision is on Google Scholar. The Westlaw cite is 2010 WL 3927661.

Note that this is not Amway’s first venture into litigation against a griping blogger. In July I blogged about an Amway 9th Circuit case: 9th Circuit Allows Amway to Unmask Kvetching Bloggers.

When Does Federal Labor Law Protect an Employee’s Right to Blog?

Monday, November 15th, 2010

Photo by EEJ

The National Labor Relations Board is suing a private ambulance company in Connecticut over the company’s blogging and internet policy and its handling of the termination of one of its employees.

Dawnmarie Souza posted negative comments on Facebook about her supervisor at American Medical Response of Connecticut Inc., and the company fired her.

In its lawsuit, the NLRB charges that Souza’s posts were a “protected concerted activity.”

That’s a problem for the company, because federal labor law gives employees the right to gripe and vent to one another about work. Why? Kvetching is proto-union-forming activity. And the National Labor Relations Act protects, at its heart, the right to form a union.

Thus, the NLRB says it was illegal for the company to have internet-usage policies that “prohibited employees “from making disparaging remarks when discussing the company” and “from depicting the company in any way over the Internet without company permission.”

I discussed this story on Friday on This Week in Law with Denise Howell. The podcast is available here.

More:

(Ha’p: Denise Howell)

India IT Firm Watches What Employees Blog

Tuesday, August 31st, 2010

Romit Guha and Dhanya Ann Thoppil in the Wall Street Journal’s India Real Time blog: IT Firms to Staffers: Watch What You Blog.

The post discusses Wipro Ltd., the third-largest software exporter in India, and the troubles they have had with blogging employees, leading to Wipro’s new blogging policy for employees.

Chicago Police Officer Under Investigation for Blog Post Criticizing Department

Thursday, August 26th, 2010

Lt. Andrews riding (from Andrews' blog, photo by killboy.com)

Chicago police Lt. John Andrews is under investigation by Internal Affairs after he posted A City at War With Itself: Chicago – Fast Tracking To Anarchy … on his motorcycle-themed blog The Adventures of a Highway Road Runner.

In the post, Andrews talks about the CPD’s low morale and lack of staffing and leadership. He also criticizes the promotion of a police officer. This seems to be the particular passage that caused the most consternation:

A recent example of alleged political corruption ties to top tier leadership in the Chicago Police Department.

While Superintendent Jody Weis recently appointed Lieutenant Anthony Carothers to Commander of the Englewood District, his appointment has been received by the rank & file with utter disdain. They and some city residents call the appointment of Carothers a true lack of ethical consideration by the Superintendent.

Interestingly, the newly appointed Commander Anthony Carothers is the brother of Isaac Carothers, the Chicago Alderman recently convicted on charges of public corruption in Federal Court. Ironically, their father, William Carothers, also served as a Chicago Alderman until his conviction on public corruption charges in 1983.

The Chicago Tribune quotes Professor Sheldon Nahmod of Chicago-Kent College of Law as saying that there is “a serious First Amendment issue here,” and that the law should shield Andrews from discipline as long as he is writing as a public citizen out of public concern and not just airing a personal gripe.

Nahmod said that Andrews “was griping about the morale of the Police Department in general, the support it’s getting from its supervisors, superiors and from politicians, and that’s not the same thing as a personal gripe,” in the Trib’s quote.

More: Neil Steinberg column in the Chicago Sun-Times: Fed-up cop rips ‘hacks’ running department.

A Database of Company Social Media Policies

Monday, August 2nd, 2010

Lawyer Doug Cornelius maintains a Social Media Policies Database, which aggregates links to a slew of policies on blogging and other uses of social media. It includes employer policies for employees and other policies. It’s a great resource.

(Ha’p: Megan J. Erickson’s Social Networking Law Blog)

Google Nabs EFF Lawyer Fred von Lohmann

Monday, July 12th, 2010

THR, Esq. reports that Google has grabbed star public-interest copyright lawyer Fred von Lohmann from the Electronic Frontier Foundation to join up as senior copyright counsel.

Previously, I linked to one of von Lohmann’s posts on the EFF Deep Links blog about how music bloggers can keep from getting into trouble with litigious record companies.

Google is usually on the public-interest side of copyright battles. Indeed, in my opinion, Google has done more than anyone else in contemporary times to push back against the unceasing expansion of copyright entitlements. But it’s a mistake to think that Google is a charitably minded do-gooder. Google pushes back against copyright because it’s usually in its interest to do so. But make no mistake, Google is ready to assert copyright in dubious ways when doing so is in itself interest. (See, e.g., the Google Books settlement, my takes here and here.)

In 2005, von Lohmann wrote a blog post for EFF in which he described his “conversion moment.” It was in 1994 when he read John Perry Barlow’s essay, The Economy of Idea, which includes this passage, quoted by von Lohmann: “The greatest constraint on your future liberties may come not from government but from corporate legal departments … ”

Google’s a fantastic company, and I congratulate von Lohman on his new job. There’s no shame in working for a for-profit company – I’ve done a lot of that myself. And there’s absolutely nothing wrong with moving from public-interest work to for-profit work. None at all. But von Lohmann is the latest in a string of public-interest-minded IP lawyers that have been hired by Google. And that gives me pause. They can’t all go. We still need great public-interest copyright lawyers. Now more than ever.

[Cross-posted from Pixelization.]