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About the Author | |
Ryan Colleen Daugherty is an associate and member of the firm's Litigation and Planning & Zoning groups. She focuses on employment, real estate and other commercial litigation, as well as other estate administration and family law matters. She joined the firm in 2008 after graduating from the University of Kentucky College of Law and the University of Georgia College of Environmental Design. In addition to her law practice, she is a LEED Accredited Professionals, and a member of the Board of Directors of the U.S. Green Building Council's Kentucky Chapter, serving as its Legislative Task Force Chair. She is also a LFUCG Greenspace Commissioner and volunteers various civic organizations such as Bluegrass Tomorrow, Race for Education and Girls on the Run. She recently selected as one of the Lexington Young Professionals Association's 2010 Rising Stars, and as one of five Emerging Leaders chosen to attend the 2010 Louisville and Lexington Chamber's joint Leadership Expedition. Ms. Daugherty can be reached at (859) 231-8780, or at rdaugherty@mmlk.com. |
 | | Lexington Employment Law Attorneys Kentucky HR Training |
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| Office Locations | |
Lexington Office
201 East Main Street, Suite 1000
Lexington, KY 40507
(859) 231-8780
Louisville Office
9300 Shelbyville Road, Suite 210
Louisville, KY 40222
(502) 327-5400
Frankfort Office
305 Ann Street, Suite 300
Frankfort, KY 40602
(502) 223-1200
www.mmlklaw.com
Greenup Office
402 Main Street
Greenup, KY 41144
(606) 473-7303
www.mmlkadvantage.com
Government Solutions Offices
www.mmlkgov.com
305 Ann Street, Suite 308
Frankfort, KY 40601
(502) 875-1176
1341 G. Street, N.W. Ste. 700
Washington, D.C. 20005-3131
(202) 585-6347 |
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Even though the content in the McBrayer, McGinnis, Leslie & Kirkland, PLLC newsletter is primarily informative, state and federal law obligates us to inform you that THIS IS AN ADVERTISEMENT. You have received this advisory because you are a client or friend of the firm. Copyright 2011 McBrayer, McGinnis, Leslie & Kirkland, PLLC. All Rights Reserved. |
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Around the Virtual Water Cooler: Assessing, Implementing and Enforcing Company Social Media Policies in Light of Recent National Labor Relations Board Trends
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| | Ryan Daugherty Associate |
It is old news that working-aged people are increasingly utilizing social media, both in and out of the workplace. In fact, a recent Pew Research Institute study found that 60-69% of Generation Xers (34-45) and approximately one-half of Baby Boomers (46-64) now engage in social networking. Late last year, by several accounts, Facebook even surpassed Google to become the most popular Internet site.[1]
As a result of these trends, social media data has become a notable consideration for employers -- as part of the hiring process, as a marketing tool, as a productivity concern -- and increasingly as a material factor in employment litigation. Some social media considerations present new opportunities and oversight for employees, while others require prudence to avoid unforeseen liabilities. To deal with these novel considerations, most employers have considered, if not implemented, social media-specific employee policies to complement their pre-existing workplace policies and procedures. It is essential, however, that such policies are narrowly tailored to the individual company's goals and concerns, as well as to emerging trends in employment law.
Often such trends become evident from, and may even be fed by, initial agency decisions and apparent agency emphasis. Recently, one such trend has emerged via National Labor Relations Board ("NLRB") actions. The NLRB governs unfair labor practices within both unionized and non-unionized workplaces.[2] Pursuant to the National Labor Relations Act ("NLRA"), 29 U.S.C. §151 et seq., NLRB has recently revealed that it has not overlooked the impact of social media on its mission.[3]
The NLRA protects, among other statutory rights, "concerted activities."[4] The right to engage in "concerted activities" includes, in general terms, employees' rights to act together, with or without a union, to improve working terms and conditions, including wages, benefits, and their workplace environment. In practice, "concerted activities" may include, for example, two or more employees meeting with their employer to talk about increasing their pay rate or other benefits, two or more employees speaking with their supervisor about an undesirable working condition or situation, or perhaps most frequently, two or more employees discussing their pay or other work-related issues with each other. Traditionally, these "concerted activities" occurred within settings or via mediums which were obvious to, and often controlled by, the employer. The employer's existing communications policies and/or general employment policies regarding employee communications -- around the water cooler, in their supervisor's office, on the phone, or via company e-mail -- thus clearly governed. It appears, however, that the definition of "concerted activities" is expanding to include social media networks and applications (Facebook, MySpace, Twitter, etc.), both during and outside work hours and locations.
Three recent NLRB actions, each unique but clearly linked to one another, have clarified that social networking communications are on its radar screen, and included in the "concerted activities" it will protect. In fact, such communications appear to be a current agency focus.
In October 2010, the NLRB filed a claim against a Connecticut ambulance company, American Medical Response ("AMR"), after it fired Dawnmarie Souza ("Souza"). Souza was fired approximately one month after she logged onto her home computer and posted derogatory comments about her boss and her employer on her Facebook page. Co-workers thereafter commented favorably on her posts. Such a firing may appear, without more analysis, to be both reasonable and relatively common. However, the NLRB issued an unfair labor practices Complaint against AMR, alleging that the firing violated Section 8(a)(1) of the National Labor Relations Act. (READ FULL ARTICLE) |
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About Us
MCBRAYER, MCGINNIS, LESLIE & KIRKLAND, PLLC is a general practice law firm with offices in Lexington, Louisville, Frankfort, and Greenup, Kentucky with 45 highly experienced attorneys offering full legal services. At McBrayer, we have been meeting and exceeding the legal needs of our clients since 1963 and are proud members of the State Capital Law Firm Group. For more information about our attorneys, our offices and our areas of practice, please visit us at www.mmlk.com.
MML&K GOVERNMENT SOLUTIONS is the government relations practice area of McBrayer, McGinnis, Leslie & Kirkland, PLLC law firm. Based in Frankfort, Kentucky, MML&K employs the diverse backgrounds and talents of 10 government relations professionals who advocate on behalf of its clients. MML&K provides full-service lobbying at the local, state, multi-state and federal levels to a number of the state's more respected associations, as well as over one dozen clients on the Fortune 500 list - many of which have stayed with the firm for a decade or more. To learn more about MML&K Government Solutions please visit www.mmlkgov.com. |
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Firm News and Events
Announcements
McBrayer, McGinnis, Leslie & Kirkland, PLLC is proud to announce that Amy D. Cubbage has joined the firm's Louisville office. Ms. Cubbage has been admitted to the firm as Of Counsel. Ms. Cubbage joins us from the Louisville office of Frost Brown Todd LLC and is a recognized attorney throughout the Commonwealth of Kentucky. She has extensive experience in general constitutional, governmental and commercial litigation including cases involving campaign finance and election laws, procurement laws, Medicaid fraud, antidiscrimination laws, eminent domain, and tax laws; environmental litigation, including toxic tort claims; administrative law; and environmental counseling. She also has experience in lobbying; advising clients on lobbying compliance and legislative drafting. Ms. Cubbage graduated first in her class of over 140 students from the University of Kentucky College of Law where she was admitted as a member of Honor Council (1995-1997) and awarded Order of the Coif (1997). Ms. Cubbage was the articles editor for the Kentucky Law Journal (1996-97) and awarded the Colvin P. Rouse Award for best writing by a third-year member of Kentucky Law Journal for her note entitled The Interaction of the Doctrine of Reasonable Expectations and Ambiguity in Drafting: The Development of the Kentucky Formulation, published at 85 KY.L.J. 435 (1996-97). She received her B.A. from Georgetown College in history and philosophy and graduated summa cum laude. She is admitted to practice in Kentucky state courts, the U.S. Courts for the Western and Eastern District of Kentucky, the Fourth, Sixth and Ninth Circuit United States Courts of Appeals, and the United States Supreme Court. Ms. Cubbage is a member of the American, Kentucky and Louisville Bar Associations. She is actively involved in various organizations and community activities, including the American Civil Liberties Union of Kentucky Board of Directors (2007-present); Kentucky Bar Association Attorney Advertising Commission (2005-present); Chair (2009-present); Grace & Hope for Children Guilin Volunteer Coordinator (2010-present); and Leadership Louisville 2007 Bingham Fellow focusing on math and science education. Ms. Cubbage can be reached at (502) 327-5400, ext. 308, or at acubbage@mmlk.com.
McBrayer, McGinnis, Leslie & Kirkland, PLLC would like to congratulate W. Terry McBrayer and Mrs. McBrayer for being honored by KET on Friday, June 10, 2011 at the 23rd annual KET Summer Celebration. In the razzle-dazzle style of Roaring 20s fun, a spirited night is in store for an important tradition that advances the education, health, culture and citizenship of Kentuckians. KET supports programs that enrich the lives of family, friends, and neighbors. They provide educational resources for Kentucky classrooms for learners of all ages, help promote citizenship, and preserve and celebrate our rich cultural heritage. For more information about the KET Summer Celebration click here.
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PUBLICATIONS
W. Chapman Hopkins, Associate in our Lexington office, recently authored an article entitled A Shift in Focus: How Recent Amendments to 29 CFR § 825.303 Could Impact Employee Notice Requirements Under the FMLA Leave Provisions. To read the full article please click here.
Lisa English Hinkle, Partner in our Lexington office, recently authored an article entitled Room For Improvement: The Proposed ACO Rule. To read the full article please click here.
Molly Nicol Lewis, Associate in our Lexington office, recently authored an article entitled Making No-Shows Show You the Money: Tips for Addressing the Missed Appointment Problem. To read the full article please click here.
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SEMINARS
Amy D. Cubbage, Of Counsel in our Louisville office, will be presenting Twitter, Facebook, YouTube and All the Rest: The Pros and Cons of Using the Social Network in Litigation at the Kentucky Bar Association 2011 Convention on Thursday, June 16, 2011 at the Lexington Convention Center.
Joshua J. Markham, Associate in our Lexington office, will be presenting Real Estate Closings 101 at the Kentucky Bar Association 2011 Convention on Thursday, June 16, 2011 at the Lexington Convention Center.
Stephen G. Amato, Partner in our Lexington office, and David J. Guarnieri, Member in our Lexington office, were asked to participate as guest lecturers on behalf of the National Business Institute. The Continuing Legal Education seminar was held on Thursday, June 2, 2011 and was entitled, Litigating to Win Through Advanced Trial Advocacy.
Mary Campbell, Paralegal in our Lexington office, was a guest lecturer at The Learning Center on Friday, May 13, 2011. The Learning Center presented Career Day to the Fayette County Public Schools. Ms. Campbell discussed her career as a paralegal including, description of job, typical day, training or education needed, salary range, and pros and cons.
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SPONSORSHIPS
McBrayer, McGinnis, Leslie & Kirkland, PLLC is pleased to announce the sponsorship of the 4th annual CASA Run for Kids' Sake to be held on Saturday, October 1, 2011 at Coldstream Park. Proceeds from the race go directly toward services for abused and neglected children in Central Kentucky. In 2010, 140 children were given a voice in court by local CASA volunteers. Yet sadly, there are thousands of children suffering from abuse and neglect in our community and waiting to receive a CASA advocate in order to have a safe place to call home.Help CASA "Bridge the Gap" between those children currently served by their program and the many, many more who need their assistance. Register to run or walk @ www.casa10k.com.
McBrayer, McGinnis, Leslie & Kirkland, PLLC is pleased to announce the night sponsorship of Thursday Night Live on Thursday, June 16, 2011. Join us in Downtown Lexington on June 16th as Kenny Owens performs! Come to Cheapside Park from 4:30pm - 7:30pm for beverages, food from local restaurants and, of course, great music! There is no admission charge to come and listen to the bands play - food and beverages will be available for purchase on a cash basis. Click here for the 2011 Thursday Night Live band schedule.
McBrayer, McGinnis, Leslie & Kirkland, PLLC is pleased to announce the sponsorship of the 2011 Our Lady of Bellefonte Hospital Auxiliary Golf Benefit held on Friday, June 3, 2011 at the Bellefonte Country Club, 208 Country Club Drive Ashland, KY 41101. Funds raised from this annual event were earmarked this year for specific programs that directly benefit the patients and families of OLBH- the Meals on Wheels program and the Good Samaritan Fund. The Meals on Wheels program provides meals throughout the community with the help of a network of volunteers and congregations helping to meet one common goal - helping elderly/disabled individuals live safely and comfortably in their own homes for as long as possible. The Good Samaritan Fund was established in 2005 to assist with immediate benevolent patient needs including patient clothing, transportation, or to assist a terminal patient's last wish or other needs as identified. For more information about OLBH and the services they provide please click here. |
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