Articles Posted in Social Media

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By Walker G. Harman, Jr.

Contrary to popular belief, the Me Too movement is not so new.  Beginning nearly 15 years ago, it was established to “help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.”  The original founders had a vision to address both the “dearth in resources” for survivors of sexual  violence” (emphasis added) and to “build a community” of advocates, politicians, lawyers, social workers and others to develop a grassroots approach to addressing and redressing sexual violence at its core.

Now, over a decade later, with many celebrities spear-heading the movement, thousands upon thousands of woman (and even some men) have come forward to say Me Too.  So, what does Me Too actually mean?  It seems via popular sentiment that the utterance of  Me Too signifies that the speaker is also a survivor or a victim of sexual violence.  However, sexual violence is generally associated with illegal conduct (both civil and criminal), such as rape, molestation, offensive touching, sexual harassment, and other vile and abhorrent conduct.  That is, the underlying conduct with a claim of sexual violence is so intrusive and offensive, that it gave rise to criminal and/or civil liability.  Keeping with the movement’s original intent and to this day, the official organizers of the Me Too movement describe the purpose as “helping those who need it to find entry points for individual healing and galvanizing a broad base of survivors to disrupt the systems that allow for the global proliferation of sexual violence.”

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Yarelyn Mena and Edgar M. Rivera, Esq.

In Three D, LLC (Triple Play), the National Labor Relations Board (NLRB) ruled that Section 7 of the National Labor Relations Act protected employees from termination where they made disloyal social media speech while discussing the terms of their employment.  This decision gives clarity regarding how Facebook “likes” and thread comments are to be treated where the underlying post is protected by Section 7.

In this case, Triple Play Sports Bar and Grille (Triple Play) incorrectly calculated several of its employees state income tax withholdings, resulting in employees owing additional state taxes.  After employees complained, Triple Play’s owners organized a meeting to discuss the issue. Prior to the meeting, a former, though affected, employee, Jamie LaFrance, posted on her personal Facebook account, “[Triple Play] can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” This posting led to current Triple Play employees discussing a plan to address the tax issues at the meeting.

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Yarelyn Mena

Today, job applications are often completed on the Internet and, sometimes, on social media sites, such as LinkedIn.  LinkedIn allows users to apply to multiple jobs with a LinkedIn account, making an applicant’s information readily available to employers. The public access to potential employee information may facilitate an applicant’s job search; however, such access can also be detrimental. For example, Tracee Sweet lost an employment opportunity based on information procured by a prospective employer through LinkedIn.

Ms. Sweet applied to work for a company in the hospitality industry, through LinkedIn. After a seemingly successful interview, the General Manager notified Ms. Sweet that the company would offer her a position. Shortly there after, the company rescinded its job offer. Confused as to why she was rejected after the company’s initial excitement with her, she reached out to the General Manager, who informed her that the company checked, and was not pleased with, her references. The company used LinkedIn’s “Reference Search” function, which allows users who pay a subscription fee to find people and companies, for which applicants previously may have worked.

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Ciera Ambrose and Edgar M. Rivera, Esq.

Should an employee be terminated for a social media post that embarrasses or insults his employer? What if the post relates to unsafe working conditions or affects employees’ compensation? Today, many employers have policies calling for the termination of employees for such social media posts; however, not everything that displeases employers that employees may post is fair game for discipline. Some social media activities are protected and, therefore, exempt from employer retaliation.

The National Labor Relations Board (“NLRB”), the federal agency tasked with enforcing the National Labor Relations Act (the “Act”), issued a report on Jan 25, 2012 that underscored two main points regarding the NLRB and social media: employers cannot prohibit protected activities; and an employee’s comments on social media are generally not protected if they are mere grievances not made in relation to any protected activities.  Protected activities include the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

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