The recent controversy involving the Google employee fired for challenging his employer’s diversity policies highlights some misconceptions concerning free speech rights in the workplace.

That controversy also adds an interesting dimension to the spate of reported terminations of individuals who were internet-shamed for participating in alt-right demonstrations (such as the employee who reportedly resigned from Top Dog Café in Berkeley). Ironically enough from a timing perspective, those job actions also implicate another fundamental right – the right to freedom of assembly (and derivatively, of association).

Continue Reading What Can You Say in the Workplace? Whatever Your Employer Allows You to Say ….

Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform.  Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user.  Her response?  Post the conversation and the man’s profile picture to her Facebook account.  He insulted her, she publicized him.  So far, there are no legal implications.

Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture.  As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients.  Her response?  Withdraw his application from consideration and tell him to treat women better online.  He insulted her friend, she withdrew his application for employment.  Here is where the criticism started.

The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?

Continue Reading Inappropriate Social Media Activity Dooms Job Applicant’s Prospects

My colleague Mitch Danzig, was quoted in a SHRM article entitled, Keep Employees on the Ball During March Madness, in which he provides strategies for employers to avoid legal claims when monitoring employees’ computer use. The article outlines ways employers can both manage “cyberslacking” and boost morale in the workplace during March Madness.


In Howard v. Hertz Global Holdings, Inc., a Hawaiian Federal Court found that Hertz Rent-a-Car could not be held responsible for its employee’s Facebook comments about one of its customers.  While employers should welcome the outcome, it did turn on the facts, and could have produced a different result under different circumstances.  Employers therefore, should consider installing safeguards to ensure proper social media use by their employees.

Continue Reading Employer Not Responsible for Employee Defaming Customer on Facebook

2015 largely brought more of same for California employers: increased wages and benefits for employees and decreased flexibility with employee classifications, the scope of arbitration agreements, and ways to structure compensation. But how will courts and the Department of Labor Standards Enforcement implement 2015’s new laws? What lies ahead in 2016? Continue Reading 2016 Wage & Hour Update – What Lies Ahead for California Employers?

In a sign of the growing trend of states enacting statutes protecting employee privacy, Maine became the latest state to prohibit employers from requiring employees and job applicants to provide passwords to their personal Facebook and other social media accounts.  Since 2012, nearly half of the states have passed such laws.  Indeed, since February alone, when we discussed this issue in our employment privacy webinar, three states enacted social media privacy laws, including Connecticut.  We briefly outline Maine’s new law below.

Continue Reading Maine Social Media Employee Privacy Law Goes Into Effect October 15, 2015

Written by David Cohen with Michael Arnold

Since 2012, many states have enacted laws that restrict an employer’s capacity to access employees’ personal email and social media accounts.  Last month, Connecticut joined the party and became the 21st state to enact an employer-employee social media privacy law.

Continue Reading Add Connecticut to Your List of States with a Social Media Privacy Policy Law Favoring Employees

In what appears to be a sign of things to come, a federal court in New York recently approved the use of social media to notify potential class members who were more likely to be reached that way rather than by more traditional forms of notice, such as regular mail.  The order permitting social media use comes on the heels of a similar order by a federal court in California.

Continue Reading New York Federal Court “Likes” the Use of Social Media to Notify Class Members in Wage and Hour Action

The NLRB last week filed its brief at the Second Circuit Court of Appeals in the well-publicized Facebook “Like” firing case, Three D, LLC v. NLRB.  Prior to the appeal, we discussed the NLRB’s August 2014 ruling here as part of a broader discussion of the Board’s recent crackdown on employers’ “overbroad” social media policies.  The Second Circuit’s forthcoming decision will be one of the first appellate court decisions to weigh in on the NLRB’s expansive view on employee rights under the National Labor Relations Act in the social media context.

Continue Reading Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case

We have written previously about the expanding scope of social media activities that the National Labor Relations Act protects and the tight limits the NLRB places on an employer’s ability to discipline employees for work-related communications that take place online. As the Board’s latest ruling makes clear, employee social media communications that relate to working conditions or unionization will often be protected even if they are offensive, obscene or attack individual members of management personally. In Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015), the NLRB upheld an administrative law judge’s decision that a catering company in New York City violated sections 8(a)(1) and (3) of the NLRA when it terminated an employee for profanely attacking and insulting a supervisor in a Facebook post two days before a union certification election.

Continue Reading NLRB Holds Employee’s Obscene Facebook Post Criticizing Supervisor Is Protected