Business Law

Business Law News 2017, Issue 3

"Tantrums" Aside, the Law Leans Toward the Employee in Issues of Social Media and Free Speech*

Kimberly Buffington and Sujeeth Rajavolu

Ms. Buffington is a trial lawyer with significant experience in insurance coverage disputes and business and intellectual property litigation. She has tried or arbitrated policyholder insurance coverage claims, breach of contract actions involving the division of insurance proceeds, commercial actions, and copyright infringement cases. Ms. Buffington co-heads the Los Angeles Summer Associate Program and serves on her firm’s Hiring and Pro Bono Committees.

Sujeeth Rajavolu attends the University of California, Irvine law school and was a summer associate at Pillsbury Winthrop Shaw Pittman LLP.

Whether or not your friends and family get a kick out of your misery at work, that online post of yours might tick off your employer. But what rights do employers have to restrain their employees from complaining about them online? Can employers punish employees for posting their grievances online? How do courts differentiate between "protected" and "tantrum" posts? What is the Government’s view on employees’ social media postings? In 2011, Pier Sixty LLC fired Her-nan Perez for labeling his supervisor a "nasty M.F." and using similarly profane language against his supervisor’s family in a Facebook post that ended with a plea to "Vote YES for the UNION." In a 2016 decision, the Second Circuit enforced the National Labor Research Board’s (NLRB) decision and found that the employee was protected under the National Labor Relations Act (NLRA) because the post was in relation to a union-related activity.

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