On May 29, Roseanne Barr posted a tweet comparing former Obama adviser Valerie Jarrett to an ape. ABC’s reaction was swift and decisive: it fired Barr and cancelled her show.
ABC’s decision led to pontification from various pundits and Twitter personalities arguing that Barr’s “humor” was somehow “free speech” protected by the First Amendment.
But even if Barr was exercising free speech when she posted her tweets, that has no bearing on ABC’s lawful right to fire her. ABC is a private employer, not the government, so the First Amendment did not prevent it from taking action based on employee speech.
It is the norm for high-achieving employees to strive for and tout their successes. Recently, however, one person’s novel reaction to failure—his own termination—may show a future employer as much about his character as any of his considerable accomplishments.
Sree Sreenivasan was plucked from Columbia’s School of Journalism a few years ago to become the New York Metropolitan Museum of Art’s chief digital officer. According to Quartz, Mr. Sreenivasan brought the famed museum into the digital age through inventive social outreach efforts and a revamped, mobile-friendly website.
Facebook is as public a forum as they come, yet it’s ironic how intimate some posts can be, as if the user is thinking out loud for everyone to hear.
Posts can be funny, political, or just plain weird, while others allow us to commiserate, empathize, or laugh out loud as we take that ultimate step of “liking” them. Sometimes liking another person’s thoughts can carry a high cost, especially if those thoughts disparage one’s employer.
Triple Play Sports Bar and Grille, the disparaged party in this example, took issue with the Facebook activity of two of its employees. Employee Vincent Spinella, a cook, “liked” this statement of a former employee:
“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!”
Bartender Jillian Sanzone added the comment, “I owe too. Such an asshole.”
Triple Play’s management noticed the online behavior and discharged Spinella and Sanzone for violating company policy relating to prohibited internet activity.
In our last post, we counted down our most popular posts of 2014, from A-Rod to Walgreen. Now it’s time to take a look at the issues in executive disputes that are likely to draw plenty of attention in 2015.
1. Dodd-Frank Bounties and Whistleblower Litigation on the Rise
In November 2014, the SEC released its annual report on its Dodd-Frank whistleblower award program. The theme of the report is that Dodd-Frank is paying off – both for the SEC and for whistleblowing employees. The SEC reported that it issued whistleblower awards to more people in its 2014 fiscal year than in all previous years combined, including a $30 million bounty to one whistleblower in a foreign country. The number of whistleblower tips received continues to increase, and we expect news of more substantial awards in 2015. Meanwhile, litigation over various Dodd-Frank issues, such as whether a whistleblower claim is subject to arbitration, whether the shield against whistleblower retaliation applies overseas, and whether a whistleblower must report to the SEC in order to bring a retaliation claim, will continue to percolate in the federal courts.
2. The Supreme Court Weighs in on Employment Issues
A couple of key Supreme Court cases will address employee rights that apply across the board, from the C-suite to the assembly line. In Young v. United Parcel Service, the Court will decide whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that accommodates non-pregnant employees with work limitations to accommodate pregnant employees who have similar limitations. And in EEOC v. Abercrombie & Fitch Stores, Inc., the Court will address whether an employer can be liable under the Civil Rights Act for refusing to hire an employee based on religion only if the employer actually knew that a religious accommodation was required based on knowledge received directly from the job applicant.
Who doesn’t love the year-end countdown? We’re here to offer you one of our own – our most-read posts in 2014 about executive disputes. The posts run the gamut from A (Alex Rodriguez) to Z, or at least to W (Walgreen). They cover subjects from sanctified (Buddhists and the Bible) to sultry (pornographic materials found in an executive’s email). Later this week, we’ll bring you a look at what to expect in 2015.
Without further ado, let the countdown begin!
8. The Basics: Dodd-Frank v. Sarbanes-Oxley
This post is an oldie but a goodie. It includes a handy PDF chart that breaks down the differences in the Dodd-Frank and Sarbanes-Oxley whistleblower laws. Each of these laws continues to be a hot-button issue for plaintiffs and employers.
7. When Employment Relationships Break Bad
America may have bidden adieu to Walter White and his pals on Breaking Bad, but employment relationships continue to spin off in some very unpleasant ways. Such was the case with Stephen Marty Ward, who ended up in federal prison after he threatened his employer with disclosure of its trade secrets, as we covered in this post.
Yesterday, we reviewed a recent decision by a federal court in Richmond in the case of Vanterpool v. Cuccinelli (yes that one), and when firing a government employee for speech or political affiliation may be okay under the First Amendment. The answer is that it may be okay if the employee is in a policymaking position. The court’s decision spells out why and what it means to have such a position. The case is also a helpful reminder that staking out one position in litigation may undermine another.
In her first complaint, Vanterpool apparently did not want to say that she posted the comment criticizing Cuccinelli on the Washington Post because she had denied doing so when she was confronted about the comment by one of Cuccinelli’s deputies, Charles E. James, Jr., who was also a defendant in the case. James later questioned Vanterpool’s credibility and asked her to resign or be terminated. If Vanterpool alleged in the complaint that she personally posted the comment, then that could have bolstered a defense by Cuccinelli and James that she wasn’t fired for speaking freely but for being dishonest.
Earlier this month, a federal court in Richmond dismissed the lawsuit of a lawyer named Samantha Vanterpool who worked in the Virginia Office of Attorney General when Republican Ken Cuccinelli was Virginia’s AG and was running to be governor. (Democrat Terry McAuliffe won last November in a race that made national headlines.) Vanterpool claimed that she was fired on the basis of her political affiliation in violation of the First Amendment.
Vanterpool is a Republican but apparently not a Cuccinelli fan. She was fired after she allegedly posted a comment to a May 2012 Washington Post story about Bill Bolling, who was then challenging Cuccinelli for the Republican nomination. You can still see the comment (from “bzbzsammy”), which accuses “Cuccinelli of promoting Cuccinelli” while “Bolling is helping the GOP,” and of “NEVER [being] in the AG’s office and solely us[ing] the position for self promotion.”
In honor of both our Tampa- and Baltimore-based colleagues (including yours truly), this week's Suits by Suits Inbox is rooting for the Tampa Bay Rays to defeat the Boston Red Sox in the American League Division Series; game 1 starts tonight. Alternatively, if you're not into baseball, perhaps you'd prefer a tasty beverage? Here's a link to 31 days of Disney-themed craft cocktails, one for each day of October. With that in mind -- or perhaps in hand, depending on when you read this -- on with our weekly recap:
Since you’re already giving up all productivity during the big dance, why not check out the latest in Suits by Suits?
Employees use their work e-mails for all kinds of communications, from the business-related to the personal and private. When a dispute arises, however, it’s getting more difficult to keep those private e-mails from seeing the light of day.
For example, last week’s Inbox highlighted one recent decision in which a New York federal court ruled that an executive had “no reasonable expectation of confidentiality or privacy” in his work e-mail. United States v. Finazzo, No. 10-CR-457 (E.D.N.Y. Feb. 19, 2013).
Today we're going to look at a federal statute that is increasingly becoming central to disputes between outgoing executives and their former employers -- a statute originally designed to prohibit computer "hacking."
Now, if you’re anything like me, when you hear the word “hacking,” you probably envision Matthew Broderick using a dial-up modem to break into his high school’s computer and change his grades. (In fact, Broderick pulled this same trick twice in the 1980s; first in WarGames and then again in Ferris Bueller’s Day Off.) Indeed, if you asked the average person to define “hacking,” they would probably come up with something like WarGames; that is, they would consider hacking to be breaking into a computer or network to which you were not given permission to access, in order to do something nefarious, like changing your grades or starting World War III.
It probably comes as no surprise that after those blockbuster movies (and some real-life events, too), Congress enacted a statute to prohibit “hacking” back in the heyday of the 1980s. That statute – the Computer Fraud and Abuse Act (“CFAA”) – is still the law today, and is codified at 18 U.S.C. §§ 1030.
But what you might not know is that in many areas of the country, there's a court-interpreted disconnect between the CFAA’s definition of hacking and Matthew Broderick. That disconnect, in turn, has become a very real issue today for departing executives and their employers. For example, if you’ve been fired and you delete files off of your laptop before returning it, you may be civilly and even criminally liable under the CFAA in some jurisdictions. (International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). (Less relevant – but more salacious – is the Justice Department’s efforts to prosecute a mom under the CFAA for lying about her age on MySpace.) United States v. Drew, 259 F.R.D. 449 (C.D. Calif. 2009).
It all depends on how the courts in your area interpret the CFAA. Read on....
Before you root, root, root for the Ravens in Superbowl XLVII; before you go pick up with that 100-piece platter of buffalo wings; before you even crack open a single cold one, you owe it to yourself to read this week's super-sized Inbox:
NLRB Holds Facebook Kvetching Among Co-Workers Is Protected “Concerted Activity,” But Caution Is Reasonable As Social Media Meets Established Legal Framework
Let’s be clear: this is not a blog about social media. It’s a blog focused on disputes between executives and the companies they work for and manage. Through that prism, we look at many different issues that affect these employment relationships, including pregnancy, politics, sports teams and even – ahem – insurance.
We’ve also written a lot recently about social media -- specifically the impact of Facebook, Twitter, LinkedIn and their kin on employee-employer relations. Social media are rather quickly changing many of the dynamics of how employees and companies interact, and the law is rapidly trying to catch up. That means there’s a fast flow of new developments in this area.
It’s important to write so much about this, we think, to be true to our core purpose of trying to keep you current on these developments. So at the risk of appearing to dominate our pages with references to Facebook, today we’ll introduce you to a new and unique wrinkle to come out of the intersection of the employment world and social media: a limited protection against being fired for workers who use their social media accounts to kvetch together about their jobs or their employers. Readers, meet the recent decision by the National Labor Relations Board in Hispanics United of Buffalo, Inc. and Carla Ortiz.
Some companies have concluded that having a social media policy in place is enough to avoid problems with Facebook, Twitter, Instagram, and whatever other means to communicate have come down the pike. But to work, a social media policy needs to meet at least two other conditions.
First, a social media policy has to be clear. Second, it also has to be communicated to, and clearly understood by, the company’s employees.
It may need more than that. But at a minimum, if the policy doesn’t have those two operating elements, then enforcing it can do a company and its managers more harm than good – at least when it comes to their reputations. That, at least, appears to be the lesson we can learn from the case of Rhonda Lee, a Shreveport, Louisiana TV meteorologist.
For two centuries, intellectual property disputes between employees and employers were guided by a relatively simple principle: if you did something “in the workplace” – and you didn’t specifically bargain with your employer to keep it – then what you did was “on the clock” and that work product belongs to your employer.
If you’re a business professional or a lawyer reading this blog, chances are that notion seems awfully quaint right about now. You know that smartphones are ubiquitous in our respective professions, and business gets done 24 hours a day, seven days a week. That important client email gets answered at midnight on a Saturday from your basement – not at 9 am the next Monday from your office.
Whether our brave new wireless world is a mixed blessing is probably beyond the scope of this blog. But one of the things we have noted is that the increasing commingling of the “workplace” with “personal” space is blazing new trails in previously settled areas of the law. We look at another recent development in this area in context after the jump.
This week's latest news in suits by suits:
This just in: on Thursday, Illinois Governor Pat Quinn signed a new law making it unlawful for an employer to request or require an employee or prospective employee to provide the password for his or her account or profile on a social networking site. The law, which amends Illinois’s existing Right to Privacy in the Workplace Act, and goes into effect on January 1, 2013, supposedly addresses the trend of employers requiring job applicants to give access to their Facebook profiles as part of the job application process.
We have previously discussed the perils of social media in the workplace, including the much-publicized case in which women’s clothing retailer Francesca’s fired its CEO for disclosing insider information over Twitter. (The gem was his tweet of “Board meeting. Good numbers = Happy Board” several hours before the actual board meeting itself at which the numbers were disclosed.”)
We’ve also discussed some of the problems of unauthorized disclosure from the perspective of the employee, which is of course exacerbated by near-ubiquitous social media technology at work that makes it trivially easy for anyone to fire off an email, a Tweet, or a post on Facebook without considering whether that disclosure might violate the employee’s legal obligations.
In my last post, I made the case that new social media haven’t changed the issues that come up in legal disputes between companies and high-ranking employees. But social media can add some new twists. For instance, are a company’s Twitter followers the equivalent of a confidential client list, such that you would be “misappropriating” a company “trade secret” if you left and took the list with you?
We cover a broad range of issues that arise in employment disputes. Occasionally, we also spotlight other topics of relevant legal interest, ranging from health care to white-collar defense to sports, just to keep things interesting.
Led by Jason Knott and Andrew Goldfarb, and featuring attorneys with deep knowledge and expertise in their fields, Suits by Suits seeks to engage its readers on these relevant and often complicated topics. Comments and special requests are welcome and invited. Before reading, please view the disclaimer.