Social Media Archives - Page 3 of 7

On January 18, 2013

As we reported in the Gibbons E-Discovery Law Alert in May 2012, “Reg FD” could present a potential pitfall for those that post material non-public information via social media platforms. In early December 2012, that “pitfall” became a reality for Netflix Inc. CEO Reed Hastings. In July 2012 Hastings published on his public Facebook page a 43-word post concerning viewership statistics, including that Netflix subscribers had watched one billion hours of video the previous month.

Confidentiality and Non-Disparagement Provisions in Employment Agreement Deemed Unlawful by NLRB Judge

by Gibbons P.C.

Posted in Employment Agreements / Labor

On January 15, 2013

Over the past two years, the National Labor Relations Board (the “Board”) has attacked various employment policies of union and non-union employers alike, ranging from social media policies to policies that establish protocol for employees to follow when responding to media inquiries. The Board also has been critical of at-will language commonly found in employee handbooks and policies used by employers throughout the country. In light of the Board’s recent actions, some employers–particularly non-union employers that have not historically focused on Board developments–have begun to reassess policy language that has long existed in their handbooks. Due to a recent administrative law judge (“ALJ”) decision, employers should add employment agreements to their list of employment practices to review and Board developments to watch in 2013.

NLRB ALJ Strikes (Employer Policies) Again!

by Gibbons P.C.

Posted in Labor

On November 29, 2012

In a recent decision, a NLRB administrative law judge (the “ALJ”) found three policies in the Dish Network’s nationally-distributed handbook unlawful: a social media policy, a policy that restricts contact with the media, and a policy that restricts contact with government agencies. While the challenge to the social media policy is nothing new, the decision serves as a reminder for union and non-union employers alike that no policy is safe from scrutiny by the National Labor Relations Board (the “Board” or the “NLRB”).

Time to Review Your Employee Policies and Training Programs

by Gibbons P.C.

Posted in Policies and Handbooks

On November 19, 2012

As we near the end of the year, now may be a good time to dust off your employee manual and training programs! An annual review of policies is a good best practice that can save your company both time and money in the long run. For instance, have you considered revising your policies or offering trainings in areas that have been the focus of recent legal activity such as: social media, confidentiality, reasonable accommodations, or bullying.

NLRB Weighs in on Permissible “At-Will” Employment Language

by Gibbons P.C.

Posted in Policies and Handbooks

On November 12, 2012

In light of recent guidance by the National Labor Relations Board (the “Board”), non-union employers should review the “at-will” language found in their handbooks (and many standalone policies) to make sure it does not constitute an unlawful waiver of an employee’s right to engage in union activity. By now, it should come as no surprise that the Board has an interest in non-union workplaces. From promoting a mandatory workplace posting requirement to challenging seemingly innocuous social media policies, the Board should be on the radar screen for all employers. Most recently, the Board has weighed in on at-will disclaimers found in most handbooks or manuals. Such disclaimers typically explain that the employment relationship is not a contractual one, and the employer or employee can end employment at any time for any reason so long as that reason is not unlawful.

Taking Over Former Employee’s LinkedIn Account Not a Violation of Federal Law, According to Pennsylvania District Court

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules / Privacy and Data Security

On November 5, 2012

A Pennsylvania Federal District Court has decided that an employer did not violate the Federal Computer Fraud and Abuse Act (“CFAA”) or the Federal Lanham Act, when it took control of a departed employee’s LinkedIn account. The Court ruled that (1) the CFAA, which in part prohibits unauthorized access to a computer with the intent to defraud, did not come into play and (2) no trademark infringement in violation of the Lanham Act had occurred.

Changing the “Games”: The First Social Media Olympics

by Gibbons P.C.

Posted in Technology Developments and Issues

On August 28, 2012

As followers of this blog know, we often bring you updates regarding the ever-changing world of social media, in particular, how it affects attorney ethics or judicial proceedings, or how it is used by financial services industry participants. Here, as the closing ceremonies for this year’s London Olympics have recently ended, we pause to reflect how the popularity of social media has “changed the game,” resulting in the world’s first “Social Media Olympics.”

“Did I Just Get a Tweet From Goldman Sachs?!?”: Increased Expansion and Scrutiny of Social Media in the Financial Services Industry

by Gibbons P.C.

Posted in Corporate Information and Records Management Policies

On August 7, 2012

With the increased use of social media by financial services industry participants, more activity and scrutiny can be expected from financial regulators. This is not to mention the litigation from investors that could arise out of, for example, the misinterpreted or well-meaning post from an advisor that simply did not translate to “less than 140 characters.” It appears that there is a trend (amongst at least the larger financial institutions) that a united and pre-approved voice is best for now.

Dancer’s Facebook Messages With Opt-In Class Members are Protected Work Product

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On August 3, 2012

A group of exotic dancers in New York recently found themselves partially exposed — well, their Facebook messages, that is. A federal judge in In re Penthouse Executive Club Compensation Litigation, 10-CV1145 (KMW) (S.D.N.Y May 10, 2012) decided that one of the plaintiff-dancer’s Facebook communications with non-party-dancers about joining the lawsuit were not protected from disclosure, but that Facebook communications between the plaintiff-dancer and opt-in plaintiffs were protected from disclosure. The Court’s application of the well-established work product doctrine and common interest rule to social media communications reminds lawyers to exercise caution when using social media for discovery purposes and to warn their clients to similarly proceed with caution.

Attorneys’ Use of Social Media to Research Jurors — Another Ethical Land Mine

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 20, 2012

The New York City Bar Association’s Formal Opinion 2012-2 examines whether ethical restrictions apply to attorneys who use search engines or social media websites for the purpose of researching jurors. While the Opinion does not oppose such research (provided no communication between an attorney and potential or sitting juror occurs), it broadly interprets “communication.” Although a “friend request” would obviously constitute a communication, the Opinion struggles with whether an inadvertent or unknowing notification or message to the juror, which was triggered by the attorney’s attempt to view a page or comments (such as what can occur when one views a person’s LinkedIn™ profile), should also be treated as a communication and thereby prohibited. Ultimately, the Opinion “takes no position” on that issue and instead, cautions attorneys to understand the technology at issue, refrain from engaging in deception to gather information, and promptly report any discoveries of juror misconduct that are gleaned from the research.

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