August 20, 2019

Archives for August 16, 2011

Philip Gordon: When Can Employers Lawfully Fire an Employee for an Offensive Facebook Post? Ask the NLRB

Ever since the National Labor Relations Board (NLRB) filed a complaint, last November, against ambulance service provider AMR for firing an employee who had called her supervisor a “mental patient” on her Facebook wall, employers have been forced to ask themselves the following question: Do I really need to worry that the NLRB will knock on my door every time I discipline an employee for an obnoxious or offensive Facebook post related to work? Until two weeks ago, there was no easy answer to that question. The AMR case and virtually all of the other “Facebook cases” initiated by the NLRB had either settled or had not yet resulted in a published decision. Then, last month, the NLRB’s Office of General Counsel issued three Advice Memoranda in rapid succession that provide at least some guidance for employers trying to navigate the intersection of social media and labor law.

Two of the Advice Memoranda draw the same bright line rule: an employee who communicates about work through Facebook but only with family or friends cannot invoke the protections of the National Labor Relations Act (NLRA) to avoid dismissal. In one of these two cases, an employee of a residential home for homeless individuals with significant mental illness posted facetious comments about residents on her Facebook wall. Only a personal friend responded to the Facebook posts, and none of the employee’s coworkers were her Facebook friends. The General Counsel concluded that the employee’s Facebook posts were not protected because the employee was merely communicating with personal friends about work. In addition: (a) her posts did not relate to the terms or conditions of employment; (b) the employee did not discuss her posts with coworkers, and no coworkers responded to them; and (c) the employee was not seeking to induce collective action and her posts were not an outgrowth of collective concerns.

The second case was a slightly tougher one. There, a bartender complained through Facebook to his step-sister about this employer’s policy barring him from sharing in tips given to servers even though the bartenders helped to serve food. The General Counsel concluded that the bartender could not rely on the NLRA to reverse his firing, even though the post related to the terms of employment, for the same reasons that the employee of the residential home could not do so – the employee did not discuss his post with coworkers and the employee was not seeking to induce collective actions.

The third case provides the most useful guidance, drawing the line between individual gripes (unprotected) and collective activity (protected). In that case, the employee made the following comments about her store’s Assistant Manager:

I swear if this tyranny doesn’t end in this store, they are about to get a wakeup call because lots are about to quit.
* * * *
[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price . . . . I’m talking to [Store Manager] about this shit because if it don’t change [Company] can kiss my royal white ass.

The General Counsel concluded that the employer could lawfully fire the employee because the posts expressed only an individual gripe, i.e., the employee’s own “frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items.” The General Counsel also concluded that the responses to the posts by the employee’s coworkers did not convert these individual gripes into collective action because those comments reflected the coworkers’ understanding that the employee was speaking only on behalf of himself. One coworker laughed (“bahaha like!”); one coworker asked why the employee was so “wound up;” and a third expressed only emotional support (i.e., “hang in there”).

In each of the three Advice Memoranda, the General Counsel referred to the same or similar legal standards. These standards also provide useful guidance and include the following

  • Protected: When the employee “acting with or the authority of” coworkers (a) “seeks to initiate, induce or prepare for group action,” or (b) “brings truly group complaints to the attention of management.”
  • Protected: The employee’s activities are “the logical outgrowth of concerns expressed by the employees collectively.”
  • Unprotected: The employee is engaging in activity “solely by and on behalf of the employee himself.”
  • Unprotected: The employee’s comments are “mere griping” as opposed to “group action.”

While these guidelines and the Advice Memoranda obviously do not address the full range of Facebook conduct that intersects with the workplace, they do at least provide some guideposts for employers when deciding whether to discipline or fire an employee based on his or her obnoxious or offensive Facebook post.

© 2011 Littler Mendelson.  All Rights Reserved.

Philip L. Gordon is the Chair of Littler Mendelson’s Privacy and Data Protection Practice Group. He has years of experience litigating privacy-based claims and counseling clients on all aspects of workplace privacy. He blogs at Littler’s Workplace Privacy Counsel, where this post originally appeared on August 1, 2011.

State Judicial Issues Revised List of Statewide Parenting Classes

The Colorado State Judicial Branch has issued a new list of Colorado parenting seminar providers for family law consideration. Practitioners should begin using the new list immediately.


Department of Labor and Employment Proposes Changes to the Rules Regarding Unemployment Insurance

The Colorado Department of Labor and Employment has proposed amendments to the rules regarding the administration of the “Colorado Employment Security Act.” The revisions address the following issues:

  • Amending the rules related to unemployment insurance appeals for clarity.
  • Amending the rules related to good cause for clarity.
  • Adopting rules allowing the Unemployment Insurance Program to fine an employer who is found to have willfully disregarded the law when misclassifying an employee as an independent contractor.

A hearing on the amended rules will be held on Thursday, September 15, 2011 at 633 17th Street, Suite 1200, Room 12, Denver, Colorado 80202, beginning at 10:00 am.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Amendments and Additions Made to Rules of the Colorado Public Employees’ Retirement Association

The Colorado Department of State has proposed amendments to the rules of the Colorado Public Employees’ Retirement Association (PERA). The rules were revised and new rules were added to clarify certain provisions, including the following:

  • Tips received by a member for services rendered are considered PERA includable salary.
  • What individuals are eligible for exemption from PERA membership pursuant to C.R.S. § 24-51-308 when there is not a city manager. (This rule is necessitated by recent actions taken by PERA employers to eliminate their city manager roles and have individuals who would have otherwise reported to the city manager (and thus been eligible for PERA exemption), report to the mayor or a different governing body.)
  • Who is responsible for payment of interest to PERA for the working retiree contribution when an independent contractor fails to report compensation as required by PERA Rule 11.12 D(2).
  •  The interest due under Rule 11.12 D(3) applies to both the employer contribution and the working retiree contribution.
  • Changes made to the cost of living adjustment.

A hearing on the amended rules will be held on Friday, September 16, 2011 at Wentin Hotel-Westminster, 10600 Westminster Boulevard, Westminster, Colorado 80020, beginning at 10:30 am.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Solo By Choice: A Conversation with Carolyn Elefant

In advance of CBA-CLE’s Hanging Your Shingle event, Solo in Colo spoke with keynote speaker Carolyn Elefant. The Washington D.C.-based solo and blogger talked about getting her start as a solo, learning the ropes, and the importance of technology. Below is the first half of the interview. Stay tuned tomorrow for the second half.

Solo in Colo: How did you know you wanted to go solo and what did you do to ensure you were ready to go solo?

Carolyn Elefant: I always thought that I might eventually work for myself because I like the flexibility, but when I actually started my firm I was not really ready to go solo. I was five years into my legal career and I was laid off from my position as an associate at a medium-sized energy law firm and I looked around for other positions but it was a recessionary period, though not like it is now, and I didn’t find anything. I thought, well, I thought about starting a firm, I might as well do it now. I was married and just bought a house but I didn’t have kids and I didn’t have student loans, so I figured I might as well do it now.

To make sure that I was ready – that was in 1993 – at that time the D.C. Bar had one program on how to start a law firm. It was basically just one woman talking about her own experience starting a law firm and it was very different from the experience of most of the people who attended the session. She had been a partner at a big firm and had essentially broken off her practice and took two associates and a paralegal and a secretary and that was her version of starting a law firm. There was also one solo energy attorney who was renting space in the office where I had my firm. I talked with him a little bit about his practice.

Because I wanted to take cases outside of energy cases, I looked around for programs I could take. The public defender’s office in D.C. had a three-day training program that was free, so I signed up for that and took that program. I think from there, that was pretty much what I did.

Solo in Colo: You say you are solo by choice (the title of your book and your keynote presentation at Hanging Your Shingle), but at a time when the economic outlook is shaky, are you seeing more lawyers that are solo by necessity? If so, what advice do you have for them?

Carolyn Elefant: Even though people are becoming solos by necessity, they still do have a choice. My choice was to choose law. When I lost my position I remember talking to friends who said well you’re in your late 20s, you’ve been married for a year or two, why don’t you just start a family and leave the profession? There are different options. There are also people who leave the law entirely, so my feeling is even if starting a law firm is your last resort, you’re still making a choice – you’re choosing to have a career in the law.

I do think there are definitely more people who are looking at the solo option these days and it’s a much more diverse range than it ever was – from those graduates who just can’t find a job, to young associates and also older attorneys.

The biggest piece of advice is to know why you’re starting your firm. Don’t be embarrassed about the reasons you’re starting it and whichever strategy you decide to take, just commit to that strategy and be flexible.

For example, when I started my firm, honestly I thought of it as a gap-filler that I would do for a year or two and after that have kids or get hired on by another firm when the recession abated. As it turns out, I enjoyed practicing on my own so much that when I had kids my firm was starting to take off and I didn’t want to stop. I stayed solo because it accommodated a family.

The second piece of advice is to make use of technology to the extent that you’re comfortable with it. Becoming familiar with tech tools that will support the goals that you have in your practice will give you an edge over your competitors.

Solo in Colo: What is one thing you learned in the first year (or few years) of practicing on your own that you wish you had known?

Carolyn Elefant: If there’s an opportunity, take advantage of it, even if it’s risky. When I started out I was very risk-averse. Sometimes there would be a book that I could have used for my practice that was really expensive. Instead of just buying the darn thing I would make 10 trips to the library, when it made more sense to just have it. I think there are many times when people can put some money into their practice that will save them time and they’re just so busy pinching pennies that they don’t do that. As a result, they wind up wasting time and it takes them longer to grow. I think on one level you should keep your overhead low and not spend beyond your means, but on the other hand if there is something that involves a little risk you should go for it because it will enable you to grow faster and make better use of your time.

Solo in Colo: How would you recommend new solos find what area they want to practice in?

Carolyn Elefant: I think in terms of practice area and figuring out what to do, you don’t necessarily need to specialize right at the beginning, but I think you should at least rule out stuff that you don’t like or you’re not good at – subjects that you hated in law school, things you have no interest in – and maybe focus on a couple of different areas. Focus on at least one area where there appears to be a demand. Usually for solos starting out, there tends to be demand for court appointed criminal work, family law, or, if you have the skills, immigration law. I would also look into working in areas where you have a built-in niche or interest. If you’re a new lawyer who loves to ride motorcycles and you’ve been riding with the same group for a few years, maybe doing something like motorcycle law. Also, look at areas where you might have had some background or built-in contacts and then figure out stuff that you like. There’s also pro bono. There are a multitude of cases you can take. You can take one or two of those and see if you like it, see if you’re good at it, and maybe turn it into something that  you do for pay also.

Solo in Colo: Inevitably as a solo you’ll run into a question you’re not sure how to answer. How did you know when to go to a colleague for help and how did you choose the person you sought out?

Carolyn Elefant: Often it would depend on the practice area that I was in. If I needed assistance with energy work I have one or two colleagues who I was able to call on, and I had done some work for them or some favors for them in the past, so I didn’t feel like I was taking advantage of them.

For things that were outside of my energy experience, for example if it was a criminal matter, at the public defender’s training they gave us a number and said we could always call. When you take a CLE (and this is a benefit people don’t realize when they take a CLE or a pro bono program) … the people who teach those classes will often stay available to answer questions.

Finally, there are listservs. I belong to the solo set of listservs and from time to time when I’ve had some questions I’ve posted them on the website and we have a local contingent of solos, so I’ve met with some of those people informally to ask questions.  Sometimes if it’s a really complicated matter I offer to pay someone for a few hours of their time.

Please note: this interview was edited and condensed.

This interview originally appeared on the Colorado Bar Association’s blog for solo and small firm attorneys, SOLO in COLO, on August 15, 2011.

Tenth Circuit: Subcontract Interpretation Should Produce Harmony Between Clauses and Avoid Rendering a Provision Meaningless

The Tenth Circuit Court of Appeals issued its opinion in Larry Snyder and Co. v. Miller on Monday, August 15, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner and Respondent entered into a subcontract agreement, under which Respondent would install utility trenches underneath what would become a parking lot for an apartment complex. Respondent performed the work, but once the asphalt for the parking lot was installed, the trenches settled and the parking lot was damaged. Petitioner requested that Respondent repair the entire parking lot, but Respondent refused, arguing that the subcontract only required it to repair the areas of the parking lot that actually settled. On appeal, Petitioner alleges that the district court erred by granting summary judgment to Respondent.

The Tenth Circuit agreed with the district court that the subcontract unambiguously governed the extent of the repair required of Respondent. In interpreting the subcontract, the Court seeks to avoid any interpretation that renders a provision meaningless. The provisions at issue in this case were “interpreted to produce harmony and meaningfulness between the repair, full-satisfaction, and flow-through clauses”; if the Court “gave controlling effect to the flow-through clause but not the repair clause as Snyder desires, then [it] would render the repair clause meaningless.” “Accordingly, no genuine issue of material fact exists concerning [Respondent]’s liability for repair work that exceeded the requirements of the subcontract and summary judgment was appropriate.”

Tenth Circuit: Impeachment Evidence Suppressed by Government Was Not Material and Did Not Undermine Outcome of Trial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cooper on Monday, August 15, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted by a jury of one count of conspiracy to defraud, multiple counts of mail and wire fraud, one count of conspiracy to commit money laundering, two counts of money laundering, and multiple counts of engaging in monetary transactions in property derived from unlawful activity. During his trial, Petitioner filed several motions, including motions for a judgment of acquittal, a post-verdict motion for a new trial, and a motion to suppress evidence under the Fourth Amendment; the district court denied them all. On appeal, Petitioner challenges the district court’s denial of his motions.

The Tenth Circuit, however, found that sufficient evidence existed to connect Petitioner to the conspiracy and fraud and support his conviction. Additionally, the impeachment evidence suppressed by the government was not material and did not undermine the Court’s confidence in the outcome of Petitioner’s trial. Lastly, the search warrants in question complied with the dictates of the Fourth Amendment, and therefore the district court did not err in denying Petitioner’s motion to suppress; Petitioner was also not entitled to an evidentiary hearing.

Tenth Circuit: Unpublished Opinions, 8/15/11

On Monday, August 15, 2011, the Tenth Circuit Court of Appeals issued two published opinions and ten unpublished opinions.


United States v. Romero

Cypert v. Independent School Dist. No. I-050 of Osage County

Akinmulero v. Holder, Jr.

Charlotte v. Hansen

Bunch v. Independent School Dist. No. I-050 of Osage County

Childster v. Province

United States v. Nichols

Mendia v. City of Wellington

Craft, Jr. v. Jones

Winne v. City of Lakewood

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.