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© 2016 Zuckerman Spaeder LLP

Showing 19 posts in Social Media.

The Inbox – Some Like It Not

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. Read More ›

Five Issues in Executive Disputes to Watch in 2015

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. Read More ›

Suits by Suits’ Greatest Hits of 2014

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. Read More ›

Vanterpool v. Cuccinelli: Threading the Needle to Preserve a Free Speech Claim Against a Government Employer without Admitting to Lying Earlier About Who Spoke

Needle ThreadingYesterday, 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.     Read More ›

Vanterpool v. Cuccinelli (yes that Cuccinelli) Sheds Light on Political Patronage Dismissals

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.”   Read More ›

The Inbox - October 4, 2013

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: Read More ›

The Inbox - March Madness Edition

HerculesSince you’re already giving up all productivity during the big dance, why not check out the latest in Suits by Suits?

  • Bloomberg says that Hercules Offshore has defeated a “say on pay” lawsuit brought by a shareholder who claimed that the Hercules board should not have ignored an investor vote that the company’s executive compensation was too high.  Was defeating this lawsuit one of the fabled “Twelve Labours”?
Read More ›

You’ve Got (Unprivileged) Mail: Court Rules That Prosecutors Can Use E-mail Sent by Personal Attorney to Employee’s Work Account

Email padlockEmployees 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).  Read More ›

The Basics: "Hacking," the Computer Fraud and Abuse Act, and You

Computer HackerToday 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.... Read More ›

The Inbox - February 1, 2013

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:

  • A California appellate court reversed a trial court verdict for Julie Gilman Veronese, which had awarded her $1.3 million in damages against her former employer, Lucasfilm Ltd., which had terminated Ms. Veronese upon finding that she was pregnant out of claimed "concern for the health of the fetus."  Veronese has appealed to the California Supreme Court, which has 60 days to decide whether or not to take the case.  We'll be watching.
  • A Florida appellate court has sought the guidance of the Florida Supreme Court as to whether a judge must recuse himself from cases in which he is "Facebook friends" with the prosecutor.
  • In a story that's near and dear to us here at Suits by Suits, Martha Neil of the ABA Journal has written a short article collecting stories under the banner "When can workers be fired for Facebook posts and tweets?"   As you may know, we've had quite a lot to say on the subject; see our Facebook-related posts here, here, here, here, and here, just for starters.
  • A New York state court judge has dismissed a wrongful termination suit filed by an employee of an agency of the United Methodist Church under the so-called "ministerial exception," ruling that to adjudicate the dispute would require him as a judge to interpret the denomination's religious code of conduct and thus violate the First Amendment.  The employee, Douglas Mills, had argued that his role was "primarily secular" in terms of promoting interfaith dialogue with other churches; the Court held that "even if Mills performed primarily secular duties, the ministerial exception will apply if his job duties reflected a role in conveying the church's message and carrying out its mission."
  • It isn't all good news for churches, though; the St. Louis-based Truth in the World Deliverance Ministries Church found itself rather uncomfortably in the news this week after its pastor, Alois Bell, scratched out a tip at a local Applebee's, writing "I give God 10%, why do you get 18?" and replacing the six-dollar tip with $0.  How do we know that Pastor Bell did such a thing?  Because another waitress, outraged and insulted at the lack of a tip, snapped a photo of the receipt and posted it to the online site reddit.  The receipt went viral and Pastor Bell was shamed; unfortunately, the waitress who posted it was fired.
  • If a $6 tip strikes you as extravagant, how about a $13 million one?  After having negotiated a $3.3 billion deal to sell off several of grocery and retail giant Supervalu's brands, outgoing CEO Wayne Sales will receive a $12.8 million severance package (a "golden parachute") before being replaced by Sam Duncan at some point in the first quarter of 2013, according to Supervalu's SEC filings.  Sales earns his golden parachute after a mere six months on the job.
  • A federal judge in Washington, D.C. dismissed a wrongful termination lawsuit brought by former law professor Stephanie Brown against U.D.C.'s David A. Clarke School of Law, arguing that she had been improperly denied tenure in violation of the school's faculty handbook, as well as fired on the basis of race and gender.  The court determined that the handbook was not a binding contract and that Prof. Brown had presented insufficient evidence of race and gender discrimination.
  • Finally, Robert Grattan of the Austin Business Journal penned two articles on covenants not to compete:  "Keys to a good noncompete contract," and "Who reads those noncompete contracts?  Not enough."