NLRB’s Facebook firing decision had little to do with Facebook

Hispanics United of Buffalo, Case No. 3-CA-27872 (NLRB, September 2, 2011)

Folks are talking about the decision handed down by an Adminstrative Law Judge (ALJ) at the National Labor Relations Board (NLRB) last week, finding that a nonprofit employer violated federal law by terminating five employees over a Facebook status update and comments thereto. It is an inherently intriguing case because, as Eric Meyer points out, this is the first time the NLRB has actually issued a ruling that employees were wrongfully fired over Facebook content.

But if you read the decision [PDF], you will see that the NLRB’s decision does not turn on the fact that the communications among the terminated employees took place on Facebook. I am no expert in NLRB matters, but from what I can tell, the ALJ’s analysis is a straightforward look at whether the posting and comments were “concerted activity” which is protected by the National Labor Relations Act.

Here’s a skeletal outline of the analysis:

  • It is an unfair labor practice for employers to, among other things, restrain employees from engaging in “concerted activities for the purpose of . . . mutual aid or protection.”
  • “Concerted activities” are those engaged in with or on the authority of other employees, not solely by one employee alone, though a single employee’s activities to enlist the support of other employees is protected.
  • For there to be a violation, an empolyer must know that the activities were concerted.

In this case, the ALJ found that the terminated employees, by communicating on Facebook, were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [another employee] was going to make to management.” The termination prevented them from taking further group action, and the fact that they were fired as a batch tended to show that the employer knew the activity was concerted. So this was thus an unfair labor practice.

If anything, the fact that the communications were on Facebook — during non-work hours and on the employees’ own computers — fortified the claim that the termination was improper. An employer can argue that employee misconduct during the course of otherwise protected activity can be “so opprobrius as to lose protection.” Among the factors the NLRB is to consider in this “opprobriousness” test is the place of the discussion. The communications on Facebook, although maybe not good for the employer’s PR, were separate from work hours and facilities, so as to help disqualify them from being “misconduct.”

Lost sales were not “loss” under the Computer Fraud and Abuse Act

CustomGuide v. CareerBuilder, LLC, 2011 WL 3809768 (N.D.Ill. August 24, 2011)

Plaintiff and defendant had discussed a licensing arrangement whereby defendant would provide certain of plaintiff’s materials online. The parties never entered into that agreement. But plaintiff claimed that defendant went ahead and accessed the materials stored on plaintiff’s computer system, and thereby caused plaintiff to miss out on certain sales in the business to business marketplace for the materials.

So plaintiff sued, alleging a variety of claims, including a claim under the Computer Fraud and Abuse Act. Defendant moved to dismiss. The court granted the motion.

The CFAA defines a “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11).

The court looked to the case of Cassetica Software v. Computer Sciences Corp., 2009 WL 1703015, (N.D.Ill. June 18, 2009) which explained that “[w]ith respect to ‘loss’ under the CFAA, other courts have uniformly found that economic costs unrelated to computer systems do not fall within the statutory definition of the term.” Rather, the purported loss “must relate to the investigation or repair of a computer system following a violation that caused impairment or unavailability of data.” For these reasons, the court in Cassetica Software held that lost revenues that were not related to the impairment of a computer system were not recoverable under the CFAA.

In this case, the court found that plaintiff did not allege any facts connecting its purported “loss” to an interruption of service of its computer systems. Instead, the complaint described an economic loss of revenues related plaintiff’s making business to business sales. Because such economic losses do not fall within the definition of “loss” under the CFAA, the court tossed the CFAA claim.

Court won’t let marijuana activist change his legal name to njweedman.com

In re Robert Edward Forchion, Jr., 2011 WL 3834929, (Cal.App. 2 Dist. August 31, 2011)

A long time marijuana activist (who now self-identifies as a “marijuana capitalist”) asked a California court to legally change his name to match the domain name of his website — njweedman.com. The court denied the request.

The court gave three reasons why it would not allow the name change:

  • A name change would last indefinitely, but a domain name could expire or be lost. Therafter, people might be confused.
  • The name change would associate the petitioner’s legal name with a website that advocates illegal activities, and that should not be allowed.
  • The petitioner tried to change his name in New Jersey back in 2001 but failed. The California court, looking to principles of “comity,” went along with the New Jersey Court.

At least we know Sunshine Megatron is not as controversial.

Facebook user had standing to challenge subpoena seeking his profile information

Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. January 28, 2011 )

Plaintiff sued his former employer seeking back overtime wages. In preparing its defense of the case, the employer sent supboenas to Facebook and Myspace seeking information about plaintiff’s use of those platforms. (The employer probably wanted to subtract the amount of time plaintiff spent messing around online from his claim of back pay.) Plaintiff moved to quash the subpoenas, claiming that his accounts contained confidential and privileged information. The court denied the motion as to these social networking accounts, but did so kind of on a technicality. The subpoenas were issued out of federal district courts in California, and since this court (in Florida) did not have jurisdiction over the issuance of those subpoenas, it had to deny the motion to quash.

But there was some interesting discussion that took place in getting to this analysis that is worth noting. Generally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed. The employer argued that plaintiff did not have standing to challenge the subpoenas in the first place.

The court disagreed, looking to the case of Crispin v. Christian Audiger, Inc. 717 F.Supp.2d 965 (C.D. Cal. 2010), in which that court explained:

[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information.

This almost sounds like an individual has a privacy right in his or her social media information. But the p-word is absent from this analysis. So from this case we know there is a right to challenge subpoenas directed at intermediaries with information. We’re just not given much to go on as to why such a subpoena should be quashed.

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