By Samantha L. Brooks and Karla Grossenbacher

Seyfarth Synopsis: Employees’ use of their personal social media accounts in ways that could impact an employer’s business present challenges to employers.

In this case, a Maryland state government employee claimed that she was retaliated against for a Facebook post where she referred to a Maryland gubernatorial candidate as an “a**clown.” In granting a preliminary injunction and reinstating an employee’s job duties, the U.S. District Court for the District of Maryland held that reassignment of the employee’s duties three days after the Facebook post was retaliation for protected speech, particularly where the employer could not demonstrate how the post harmed the employer. Thomson v. Belton, No. ELH-18-3116, 2018 WL 6173443 (D. Md. Nov. 26, 2018).

The plaintiff served as the public information officer for the Natural Resources Police (NRP), a subdivision of the Maryland Department of Natural Resources (DNR). She was a public employee and not a political appointee. As the public information officer, plaintiff acted as a spokesperson for the DNR, responded to media inquiries, administered the NRP’s social media accounts, and issued press releases, among other duties.

On September 17, 2018, while in her home, using her own electronic device and her own Facebook account, she responded to a Facebook post of a colleague by referring to Maryland gubernatorial candidate Ben Jealous as an “a**clown.” Plaintiff’s comment was prompted by Mr. Jealous’ decision to veto a reporter’s participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. The following day, plaintiff’s supervisor asked her whether she had posted “*a**clown” on Facebook. She acknowledged that she had, offered to delete the post, and immediately did so of her own volition. Of note, plaintiff’s Facebook post did not violate the DNR’s social medial policy. Less than one week after the post, plaintiff was stripped of the majority of her media-related duties and they were reassigned, although she was permitted to draft press releases. Neither her title nor salary were changed.

On October 9, 2018, plaintiff filed suit against Mark Belton, Secretary of the DNR, in his individual and official capacity alleging violations of plaintiff’s rights under the First and Fourteenth Amendments. She also filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction which, upon agreement by the parties, was treated as a Motion for Preliminary Injunction.

The defendant argued that plaintiff was demoted because of protracted performance issues, and not because of the Facebook post. Specifically, the defendant highlighted three instances where plaintiff had failed to communicate the happening of newsworthy events, including the discovery of a chest containing human bones at a beach in Ocean City, Maryland, the drowning death of a child, and a news article that reported a motor vehicle accident involving an NRP officer which resulted in the death of a family pet.

Since plaintiff was a public employee, the Court considered plaintiff’s claim under the Connick/Pickering standard, i.e. (1) whether there was an adverse action, (2) whether the employee was speaking as a citizen on a matter of public concern, (3) whether the employee’s interest in speaking on the matter of public concern outweighed the government’s interest in managing the workplace, (4) and whether the employee’s speech was a substantial factor in the adverse action. Thomson, 2018 WL 6173443 at *15. See Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

Adverse Action

The Court found that the plaintiff was subject to an adverse action. Prior to the reassignment of her media-related duties, plaintiff’s most important and most significant duties involved direct contact with the media. After reassignment, she was prohibited from such direct contact. The Court found that her new role — without the media duties — was less prestigious and less interesting. Id. at 21. The Court also noted plaintiff’s reassignment was neither trivial nor de minimus solely because plaintiff’s pay and some responsibilities remained unchanged.

Matter of Public Concern

The Court noted that plaintiff’s comment pertained to a matter of public concern. The Court further noted that discussion about political candidates — including plaintiff’s one word Facebook comment — fell within the realm of First Amended protected speech. The Court held that plaintiff’s comment was “in response to the posts of others on the issue of the candidate’s decision to veto a reporter from serving on the panel for a key election debate. This suggests that she was participating in an online public discussion . . . .” Id. at *22. Finally, the Court noted that plaintiff was speaking as a private citizen and not in the course of her official duties.

Employer’s Interest in Managing the Workplace

Defendant did not provide any evidence that plaintiff’s speech harmed NRP or DNR operations. The only harm the defendant could identify was that calling a political candidate a derogatory name and using inappropriate language was contrary to goals of the NRP. The Court held, however, that “inappropriate language unrelated to the employee’s employment, and spoken outside the workplace, does not intrinsically harm the employer’s interests.” Id. at 27.

Speech was a Substantial Factor in Adverse Action

The Court held that the reassignment of plaintiff’s duties was in retaliation for her Facebook post. The temporal proximity of plaintiff’s job assignment, just three days after Facebook post, clearly demonstrated that plaintiff’s protected speech was a substantial factor in the reassignment of her duties. Id. at 24. Of note, the Court noted that the record did not corroborate defendant’s claims that plaintiff had performance issues.

The court ultimately held that plaintiff was entitled to a preliminary injunction requiring the immediate reinstatement of plaintiff’s job duties.

Private Employer Takeaways

Have a social media policy! Employees who work for private, non-governmental employers do not generally have First Amendment protection for their speech in the workplace. Before taking any action based on an employee’s speech on social media, employers should first consult their social media policies to determine whether there has been a violation of the policy. Employers should also determine if the employee has some other interest at issue, such as speech that could implicate the protections of Title VII, speech that could violate the employer’s EEO or anti-harassment policy, or speech that implicates an employee’s rights under various union regulations, before taking any action.

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.

By Tracy M. Billows, Benjamin J. Conley, Erin Dougherty Foley, Sara Eber Fowler, Jason Priebe, Michael Rechtin, Suzanne L. Saxman, Ryan M. Tilot, Jordan P. Vick, and Kevin A. Woolf

Seyfarth Synopsis: Please join us at our Chicago Willis Tower office on Thursday, December 6th, for breakfast along with a Seyfarth Legal Forum and Continuing Legal Education (CLE): 2018 Highlights and a Look Ahead to 2019.

About the Program

Providing our clients with a multidisciplinary overview of Legal Hot Button issues and Best Practice:  Featuring:

  • Biometric Information Privacy Act: What a long, strange year it’s been (and there’s more on the way!)
  • Legalize it: will Illinois go from medical to recreational marijuana and what would that mean to the real estate industry?
  • Affordable Care Act Update & Enforcement Activities, 401(k) Student Loan Repayment Arrangements, Socially Responsible Investments, and HIPAA Privacy & Security Audits
  • Mergers and Acquisitions: Current State of the Market and Post-Merger Integration Strategies
  • The “Cloud”…is in a building?: Data Centers are the newest, and maybe most important, type of real estate
  • Latest Developments in Pregnancy Accommodation (Illinois’ New Lactation Law and Nationwide Trends)
  • Litigation Hot Topics for 2019, including: Developments in trade secret and non-compete law; New laws affecting threshold issues such as forum selection and choice of law; Frontloaded discovery in federal court: Mandatory Initial Discovery Pilot Programs; Best practices for protecting the attorney-client privilege for in-house counsel
  • Welcome to the Future: It arrived yesterday – The intersection of Technology and Legal Services
  • Bots, bits and bytes… Artificial Intelligence and its leading role in recent legal projects

The program will feature a panel of Seyfarth Chicago subject matter experts — with an eye toward preparing for the developments in the coming year. Our overview will be targeted at highlighting issues for the General Counsel, Chief Information Officer, Chief Human Resource Officer, and other members of their teams.

The program will consist of an engaging ninety minute presentation with speakers from each of Seyfarth Chicago’s practice groups: Benefits, Corporate, Labor & Employment, Litigation, and Real Estate, as well as an exciting presentation on the use of technology in law. Then, we will offer 30 minute break-out sessions on hot topics warranting a deeper dive that companies are facing when looking at their legal compliance needs. The break-out sessions will address Privacy/Data Security, Managing in the #metoo Environment, and Blockchain/Cryptocurrency in business.

The program is on Thursday, December 6, 2018, at 8:00 a.m. – 8:30 a.m., for breakfast and registration, 8:30 a.m. – 10:00 a.m., for the panel presentations, and 10:00 a.m. – 10:30 a.m., for the breakout sessions.  Our offices are at 233 S. Wacker Drive, Suite 8000, in Chicago, IL.

While there is no cost to attend, registration is required and space is limited.  If you have any questions, please contact Fiona Carlon at fcarlon@seyfarth.com and reference this event.

Also, for those that need the credits, note that Seyfarth Shaw LLP is an approved provider of Illinois CLE credit. This seminar is approved for 1.5 hours of CLE credit CA, IL, NY, NJ and TX. CLE Credit is pending for GA and VA. HR professionals: please note that the HR Certification Institute accepts CLE credit toward recertification.

By Ming Henderson and Clothilde Verdier

Seyfarth Synopsis: French Employers should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and any reforms may be slow in coming.  As France does not have the equivalent of a US “Presidential Decree,” Macron’s government will need to get the Parliament’s buy in.

On 14 May 2017, French President-elect Emmanuel Macron with a strong 66% majority will officially start his five year mandate. His first duty was to appoint a Prime Minister to form a new government. Following the Parliamentary elections of 11 and 18 June 2017 where Macron’s newly created party obtained a strong majority , the government was reshuffled, and the work can now begin.

Employment and Labour is one of the three key focus areas for President Macron – he has pledged to simplify French laws, reform the labour market and show France is open to business. Macron widely communicated his ambitious programme during his campaign, so as he prepares to move into the Presidential Palace what are the potential reforms multinationals employing staff in France or companies considering opening for business in France should expect? The overview that follows is based on Macron’s official programme, to which we added our comments for background purposes.

Employment Reforms – Mixed Messages to Employers and Employees

Macron has vowed to make French employment laws more business friendly, and this is clearly apparent from the following proposals:

  • Capping damages granted to employees for unfair dismissal claims. By introducing an upper and a lower limit for such damages, the cost of redundancies will be more predictable. Currently damages are uncapped, and the published guidelines can go up to 24 months’ salary on top of notice period and statutory indemnity.
  • Cutting payroll taxes on overtime. A similar measure on voluntary overtime was put in place by Conservative President Sarkozy in 2007 under the slogan “Work More to Earn More”, but removed by François Hollande as soon as he came into power. In practice given the cost of payroll taxes, employees’ net salary was not proportional to the number of hours worked – the reform would hopefully aim to correct this flaw and encourage productivity; and
  • Enabling employers to depart from the mandatory minimum protection under the applicable national collective agreement, by signing a collective agreement at company or workplace level, in areas such as working time, minimum wage, and overtime This was already introduced by the 2016 Macron Law, however employers still need to negotiate with employee representatives or unions, not just introduce new policies.
  • Introduce a two-strike rule so employers who on a single occasion slip up on tax filings or payments are just reminded, not penalised.
  • There are however a number of reforms which will be less pleasing to employers, and are less obvious as to how they will make the French labour market more competitive, such as:
  • Capping the duration of inbound international assignments to France to one year – thereafter, employees will need to be on a local French contract. Macron also intends to renegotiate the EU Posted Workers Directive for France to reduce the number of employees working in France but remaining on their home payroll, and not being fully subject to French labour laws;
  • Taxing employers who frequently use temporary contracts instead of permanent employment contracts through an additional levy at company level ;
  • Publishing on a “shame list” the name of companies who do not comply with equal pay – this will force companies to focus more actively on their data, and may in the short term increase salary costs, red tape and lead to a negative public image, but if properly managed could be positive long term;
  • Encourage a better representation of employees on the Board of companies by creating encouraging measures for such representation at Board level;
  • Reducing payroll taxes for employees on minimum wage (currently 1480 Euros per month), and providing for the payment of a 13th month bonus;
  • Increasing employees’ net salary by lowering the amount of employees’ contributions e.g. an employee currently earning a monthly salary of 2,200 Euros will earn an additional 500 Euros net a year – this measure will not reduce employment costs in France for employers. Typically total payroll taxes in France amount to around 70% of gross salary before income tax (compared with around 16% in the UK for a similar level of pay);
  • Removing the tax credit for research programmes in France, which have in the past proved popular in the Pharmaceutical and Tech industries – this reform is to balance the books with the reduced taxes on low salaries; and
  • Extending unemployment benefits to all ‘workers’ such as independent contractors, entrepreneurs or employees who resign from their job – such measures, which are likely to be very popular, may impact employee retention and ultimately push up the cost of employment for employers, though Macron also announced his intention to restrict both the duration and the conditions under which unemployment benefits are paid out.

What to Expect Next?

Employers and employees alike should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and the reforms may be slow and more modest than as described above. France does not have the equivalent of a US “Presidential Decree” so Macron and his government will need to get the Parliament’s buy in. Though the strong majority achieved in Parliament may not require this, there are broadly two significant tools Macron and his Government may use to push the reforms through in Parliament. Firstly, getting a law voted by Parliament allowing the government to implement employment and labour law reforms by way of Ordinances. Secondly, using the famous “Article 49.3” process which enables a government to agree to step down if the Law does not obtain a majority vote in Parliament, thus avoiding lengthy debates and limiting the amount of amendments made to a bill.

Last but not least, two additional considerations are of significant importance in France: “the power of the street”, i.e. strikes and demonstrations coordinated by unions that can bring France to a halt for weeks or months; and the Constitutional Council, that can annul any law deemed unconstitutional.

By Scott Rabe and Samuel Sverdlov

Seyfarth Synopsis: With seemingly every employee having access to a smart-phone or other recording device, employers without strong social media policies may be placing themselves at greater risk of creating workplace incidents that could be avoided. 

Just a few weeks ago, a video leaked of Los Angeles Lakers rookie, D’Angelo Russell, recording teammate, Nick Young, describing adulterous sexual encounters with a 19-year-old during his engagement to pop star, Iggy Azalea.  The incident has since been described as a prank that backfired.  But this “prank,” and the ensuing media attention it drew, has caused the Los Angeles Lakers to endure a media frenzy, a fractured locker room, and being booed by their hometown fans.

The Lakers incident is just one of the more recent, and public, examples of the risks employers face when employees introduce audio and video recording devices into the workplace. Viral videos such as this example may tarnish a company’s reputation.  A leaked audio recording may disclose important company trade secrets or confidential information.  Or a video recording may misleadingly appear to reveal unlawful practices at a company that could lead to litigation or other unwanted attention.

Where employers may once have understood the work place to be a semi-private space, that has changed. As a result, information and behavior that could be counted on to remain within the confines of the workplace now has the potential to become very public very quickly, with some pretty hefty consequences.

So what can employers do?

One of the best things an employer can do to hedge against these risks is to create a comprehensive social media policy that explicitly defines employee responsibilities with regard to social media. The social media policy should:

  • be geared towards the company’s business and its workforce;
  • underscore the importance of acting professionally when utilizing social media in connection with work as well as the importance of, where possible, maintaining a separation between personal and professional use of social media;
  • strictly prohibit the sharing of non-public confidential or proprietary information, or trade secrets, on social media;
  • be distributed to new hires at orientation and be regularly provided as a reminder to existing employees;
  • make clear that employees can be disciplined for violating the employer guidelines.

An employer may also want to consider putting in place a policy that regulates the use of audio or videotaping in the workplace more generally.   Although the National Labor Relations Board (“NLRB”) has said that wholesale bans on video recording in the workplace are unlawful since they could deter employees from exercising rights guaranteed to them under the NLRA, an employer may want to put in place a policy that prohibits surreptitious recording in the workplace or one that prohibits recording of other employees in the workplace without permission. Additionally, employers should be mindful that many states prohibit any kind of video or audio recording where all participants do not consent to being recorded. Given the scrutiny social media policies receive, however, employers are encouraged to consult with counsel before implementing any policy governing the use of audiotaping or videotaping in the workplace.

Employers should also consider making an investment in the education of managers and supervisors regarding best practices for upholding and enforcing the company’s social media and video recording policies. Given the ubiquity of social media today and its importance to employees’ personal and professional lives, there is significant value to employers in having a workforce that is educated on how to use social media effectively while avoiding potential costly pitfalls.

Warning to Employers: Employee audio and video recordings may be protected

The NLRB has taken an aggressive stance in the last few years in connection with its regulation of employer-imposed limitations on social media use. (To read more about the NLRB’s take on social media use, please see our blogs: here and here.)  In particular, the NLRB has taken increasing action against employers who have sought to prohibit employees from engaging in public discourse regarding the terms and conditions of their employment, especially when such discourse occurs on social media.   As a result, employers need to be careful that their social media and related policies do not place undue limitation on the forum or content where employees can engage in discourse regarding their employment.  For example, an employee’s video post to YouTube where she complains about her wages likely would be considered protected concerted action, and the employer could face liability for interfering.

Relatedly, the Equal Employment Opportunity Commission has also made clear that it views the prohibition by an employer of an employee from recording evidence of discrimination by video or audio means may be “retaliation.” This is true even if the employer maintains a workplace policy forbidding such recording.  Thus, employers should be extra careful before disciplining or regulating the conduct of employees who have already raised claims or complaints against the company.

For more information, please contact the authors, your local Seyfarth attorney or a member of Seyfarth’s Social Media Practice Group [http://www.seyfarth.com/SocialMedia].

By Kevin A. Fritz, Andrew R. Cockroft, and Craig B. Simonsen

Seyfarth Synopsis: Petitioner to the Supreme Court claims that the Sixth Circuit engaged in a “separate but equal” rationale when it rejected her claim that her employer discriminated against her based on race after the employer allegedly acquiesced to a Caucasian family’s request that no African American caregivers provide care to their family member.

In a thought provoking case recently filed before the U.S. Supreme Court, the petitioner, Ms. Jill Crane, asks “whether a race discrimination claim exists under 42 U.S.C. § 1981 where a nursing supervisor has been excluded from providing care or direction concerning care to a patient based solely on her race?” Petition for Writ of Certiorari (Petition), Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1206 (March 24, 2016).

The underlying case concerns an employer who provides acute care rehabilitation for patients with brain and spinal injuries. Ms. Crane, an African-American, had been employed as a part-time nursing supervisor. In December 2010, another nursing supervisor allegedly told Ms. Crane that a “Caucasian patient’s family had requested that no African-American caregivers provide care for the patient.” Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1358 (6th Cir. December 11, 2015).

Ms. Crane claimed that, in enforcing the race-based caregiver request, the employer’s action constituted racial discrimination. The employer, while denying that it honored the request, also suggested that even if the request had been honored, no aspect of the Ms. Crane’s employment changed in any way because of the request. “She had the same work hours, responsibilities, duties, status, pay, and benefits after she heard of the request as she did before and, thus, suffered no adverse action.” Id. Also, as a supervisor, the employer claims, Ms. Crane was not responsible for direct patient care. Therefore, the argument continues, any such policy would not have affected her since she would not have been reassigned to accommodate the alleged request.

Subsequently, Ms. Crane applied for another position, which was awarded to different candidate who was White. The employer contended that the successful candidate’s “qualifications were objectively superior” to Ms. Crane’s. Ms. Crane alleged that she was denied the position “because of her race and in retaliation for engaging in certain protected activities.” Id. The District Court granted the employer’s motion for summary judgment.

The Sixth Circuit Court of Appeals agreed, finding that Ms. Crane suffered no adverse employment action. Indeed, it distinguished any potential “de minimis or temporary” impact on an employee from actionable discrimination. It found that “an adverse employment action is ‘a materially adverse change in the terms and conditions of [Ms. Crane’s] employment’… and generally involves material changes in employment status such as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” The Sixth Circuit Court cited to Hollins v. Atl. Co., Inc., 188 F.3d 652 (6th Cir. 1999) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

In the Nursing Supervisor’s Petition she states that the Sixth Circuit “accepted the District Court’s finding that while race-based assignments may be an adverse employment action, as to her, it wasn’t because the employment action was merely temporary and as a supervisor she did not have assigned responsibility to care for the patient.” The Sixth Circuit, Ms. Crane argues, is in conflict with the Seventh and Eleventh Circuit Courts, which “have held that the Civil Rights Act is violated where an employer makes an assignment excluding a protected class of employees based on [a] customer’s or patient’s preference.” Ms. Crane cited to Chaney v. Plainfield, 612 F.3d 908 (7th Cir. 2010), which involved an African-American certified nursing assistant that was prohibited from caring for a White resident, and Ferrill v. Parker Group, Inc.,168 F.3d 468 (11th Cir. 1999), that  involved a telephone marketing corporation that “would segregate employees, when requested by customers, by assigning separate calling areas and scripts according to race.”

Ms. Crane iterates that the Sixth Circuit engaged in a “separate but equal” rationale, which was provided in Plessy v. Ferguson, 163 U.S. 537 (1896), had long been overruled by cases such as Brown v. Board of Education, 347 U.S. 483 (1954), which held that “separate but equal does not mean there is no racial discrimination.” Indeed, Ms. Crane’s Petition argues that the decision is “contrary to the Civil Rights Act, where there is no circumstance in which segregation based on race is valid regardless of time.”

It may well be that the Sixth Circuit viewed this case as representing a onetime occurrence; the outcome of which might have been different if Ms. Crane had in fact had her duties changed because of the request. It will be interesting to see if the Supreme Court considers the Ms. Crane’s case and whether it is persuaded that an employer may have to litigate allegations of segregation based on race where the alleged segregation was temporary and did not impact the employee’s terms and conditions of employment.