Can You Be Fired For Complaining About Work On Facebook? ‎

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.  Read More ›

If You Have A Social Media Policy, Make Sure It's Clear And Understood

The use of social media by companies and executive employees continues to get them in trouble.  We’ve covered that here, here, and here. 

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.  Read More ›

Virginia Is For... Plaintiffs? Virginia's Supreme Court Finds Managers, Supervisors May Be Personally Liable for Firing an Employee

On Thursday, a 4-3 majority of the Virginia Supreme Court held in VanBuren v. Grubb that individuals such as supervisors or managers could be sued as individuals and held personally liable for the common law tort of wrongful termination (also known as wrongful discharge) in addition to whatever corporate liability the employer may have.

As a practical matter, this gives plaintiffs and their lawyers additional leverage when bringing suits that contain a cause of action for wrongful termination in Virginia by being able to name the former employee’s boss as a co-defendant.  From the boss's perspective, this decision means that you, personally, could be named as a defendant and ultimately forced to satisfy a judgment for improperly firing an employee from your own pockets -- not just your company's.  It also means that employers and their executives who operate in Virginia need to review their D&O insurance coverage with this potential exposure in mind.

In short:  whether you're an executive or an employer, you need to know about this case and its implications on the employment relationship. Read More ›

Suspension of Gallaudet University’s Chief Diversity Officer Raises Question: Can You Be ‎Fired For Your Political Views? Part 1 of 2‎

Just to reaffirm what My Esteemed Colleague from Baltimore has already said (twice): we are still not a political blog.  We look at employment disputes, with a real focus on those involving a contract between an employer and an executive.  We keep our political views to ourselves (or at least out of the blog). 

But the problem is that many folks don’t keep their political views to themselves, either in or out of the workplace.  And that means disputes between companies and executives about political speech – whether it’s companies encouraging employees to vote for a certain candidate, or employees getting fired for their political views – are dominating the field of employment disputes between companies and high-level employees right about now.  Maybe it’s because we’re less than three weeks from the election.  Maybe it’s pent-up tensions in the workplace caused by economic stress. 

We don’t know why.  But we do know that here in Washington, coverage of a dispute between Gallaudet University and one of its executives, centered on the executive’s signature on a petition, has dominated the news.  Given that there is no more coverage of the Washington Nationals this season, the story is being followed avidly.  It draws into sharp relief an issue that comes up often this time of year: can you be fired for your political views? Read More ›

Plaintiff Loses 9 of 10 Claims, But Dodd-Frank Whistleblower Claim Survives

For a baseball player, batting .100 won’t get you into the Hall of Fame.  But for Rosanne Ott, a former Black Hawk helicopter pilot turned portfolio manager, batting .100 kept her case alive.  See Ott v. Fred Alger Mgmt., Inc., No. 11 Civ. 4418 (LAP) (S.D.N.Y. Sept. 27, 2012).

Ott sued her former employer Fred Alger Management (“Alger”), associated companies, and Alger’s CEO/CIO for alleged violations of the Investment Advisors Act, breach of contract, and the Dodd-Frank Act’s whistleblower provisions.  She also filed a derivative claim against the CEO/CIO on behalf of Alger’s shareholders for breach of fiduciary duty.  In her 10-count, 65-page amended complaint, Ott alleged that Alger had adopted a trading policy for her fund (the Health Sciences Fund) that allowed other Alger funds to make better trades at her fund’s expense.  

Alger and the other defendants moved to dismiss.  For four counts, Ott didn’t respond, and for five others, the district court decided that she had not adequately alleged supporting facts.  That left only her whistleblower claim, based on the anti-retaliation provision of the Dodd-Frank Act, 15 U.S.C. § 78u-6(h)(1)(A)(i).  (Say that cite three times fast.)  Read More ›

The Inbox

News in suits by suits for you to ponder once you’ve tired of reading about replacement refs and bacon:

• Every law librarian I know is a kind, mild-mannered person who would never dream of threatening to bash you with a crowbar.  But Donald Raymond, formerly of Southern Illinois University, was accused of making such a threat, and was fired shortly after the allegation.  Karen Sloan at the National Law Journal writes that Raymond sued his employer after his termination, and that his case has now survived a motion to dismiss. 

‎9/12, Academic Freedom, and Ward Churchill: When Suits By Suits Go Political‎

This isn’t a political blog; although the lawyers here at Suits by Suits certainly have political opinions (and often strong ones at that!), we’re more of a roll-up-your-sleeves-and-get-things-done bunch.  We want to help high-level employees and their employers be aware of the potential pitfalls that exist in the workplace and to rely on our experience as litigators when something does go wrong.

But sometimes those pitfalls are red or blue; sometimes employers (Chick-Fil-A, anyone?), or high-profile employees get into trouble precisely because they’ve made their political opinions public. 

Eleven years ago today – and one day after the 9/11 attacks on the World Trade Center and the Pentagon – then-University of Colorado Professor Ward Churchill published an essay entitled “Some People Push Back:  On the Justice of Roosting Chickens.”  

Through some strange circumstances (which we discuss below), that 9/12 essay sparked controversy nearly three and a half years later, after which, Prof. Churchill alleges, he was wrongfully terminated by the University of Colorado in retaliation for the opinions he expressed.  Although he won at trial, the jury verdict was set aside by the trial court judge on a motion for judgment as a matter of law; on Monday, that ruling was upheld by the Colorado Supreme Court.  Professor Churchill has vowed to appeal to the U.S. Supreme Court.  If and when he does – and if the Supreme Court grants certiorari – we’ll continue to cover this case.

Although Professor Churchill’s 9/12 article is unusual, we know that individuals – whether speaking for themselves or on behalf of their employer – are going to speak out on the issues that matter most to them, particularly in an election year, just as Professor Churchill did on the day after 9/11.  Is there anything we can learn from those 9/12ers? Read More ›

The Inbox

This week's latest in Suits by Suits:

• A trombonist and former leader of the Glenn Miller Orchestra is in the mood for some litigation.  Gary Tole, who is white, has sued the orchestra’s production company claiming that he was fired in retaliation for him promoting and hiring African Americans and Hispanics.  Among other things, Tole alleges that the president of the company questioned his hiring of two African American musicians, saying at the time to Tole that “[T]his is the Glenn Miller Orchestra, not the Count Basie Orchestra,” or words to that effect.

Claims That “Arise Out Of” An Employment Agreement: It May Be Broader (And More ‎Significant) Than You Think

Sexual discrimination claims continue to be big news in the world of suits by suits.  We’ve previously commented at some length regarding the novel issues raised in the sexual harassment lawsuit brought by former Kleiner Perkins partner Ellen Pao.

Today, we turn to a related and equally unique issue:  a sexual orientation claim brought under the auspices of the Americans With Disabilities Act, 42 U.S.C. § 1201 et seq.  Although there is no federal statute that protects employees from discrimination on the basis of sexual orientation generally, Brian Anthony Martinez, the former international managing director of television for Bloomberg Media, brought a lawsuit against his former employer in 2011, alleging that he was terminated after Bloomberg discovered that he had undergone therapy for domestic abuse from his male partner, thus (arguably) bringing his claims under the ADA. Read More ›

The Inbox

The latest gold medalists in the race for our attention: 

• Not that Chick-fil-A needed more publicity, but Laura Hautala of the Los Angeles Times brought us the fascinating story of Adam Smith, chief financial officer of a Tuscon medical equipment manufacturer named Vante.  Smith went to the drive-thru of his local Chick-fil-A, told the employees that they worked for a hateful company, and then posted the confrontation on YouTube.  Shortly thereafter, Vante fired him.  In a press statement, Vante did not identify Smith’s ordering of free water as the straw that broke the camel’s back.