Employee Social Media Griping: Can An Employer Terminate Employees Because of Their Social Media Posts Without Violating Section 8(a)(1) of the National Labor Relations Act

Social Media is the new water cooler conversation. It enables and facilitates conversations that years ago would have taken places at the old-fashioned water cooler. In today’s world of Facebook and Twitter, employee complaining is instantly, electronically and permanently transmitted to the world. Social Media users think less about their posts and disclose more so that a simple gripe monologue is turned into dialogue – on steroids – with the world. Such platforms encourage employees to blur their personal and professional lines of behavior and blurt out what is bothering them without engaging their higher level thinking tools.

With seven hundred and fifty million people actively using Facebook, there is a significant chance that a post about working conditions, compensation or other issues related to their employment will spark a conversation with an employee’s colleagues, and such conversations may constitute concerted activity under the National Labor Relations Act.

The question remains, if your employees say something negative on Facebook about your company, their fellow employees or their supervisors, can you terminate without running afoul of the National Labor Relations Act?

The answer depends on the facts surrounding the post(s). The test is whether the employee is engaging in activity solely for himself or on behalf of other employees.

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The History of Missouri Special Needs Trusts

Genesis of Current Law: Case Study

A Special Needs Trust (also known as Supplemental Support Trust) is a legal mechanism that allows families to provide funds to relatives with special needs without interfering with their government benefits. The Missouri Division of Family Services (DFS) and the Social Security Administration analyze the special needs person’s assets annually to determine if he or she qualifies for government benefits, such as Medicaid and Supplemental Security Income.

If that person has more than $1,000-2,000 (depending on the program) in assets, he or she will be disqualified and will not receive the benefits. Most families need to maintain government benefits for family members with special needs, but also want to provide additional support.

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Holy Moses, Batman! They’ve Stolen Our Private Placement Exemptions!

The Basic Requirements: Early History

Any sale of a security to a Missouri resident must either be registered with the U.S. Securities and Exchange Commission (“SEC”) and the Missouri Securities Commission, or have at least one specific provable exemption from each of those two requirements.

In 1953, the U.S. Supreme Court ruled that the “private offering” exemption of §4(2) of the Securities Act of 1933 (the “1933 Act”) required that the issuer prove that all “offerees” (not only purchasers) had sufficient investment sophistication and financial well-being (hereinafter “investment suitability”) to establish that they did not “need the protection of registration” under the 1933 Act. SEC v. Ralston Purina, 346 U.S. 119 (1953) But because of the illusory definition of “offerees” as including possibly every person who learned of an offering (not just those receiving an “offer” in the contract sense), the availability and thus the usefulness of the private offering exemption of Section 4(2), was thereafter seriously curtailed.

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Missouri Supreme Court’s Decision in Neske Appears to Have Confirmed that Public Employees Have Contractual Rights to Their Pensions, and Governmental Units Must Fund Pensions to Conform with Principals of Actuarial Soundness

Introduction

Following the victory in the Missouri Supreme Court, in March, 2007, the Firemen’s Retirement System of St. Louis (“FRS”) and its Board of Trustees recently received $49.4 Million from the City of St. Louis (“City”). This payment related to the underfunding of FRS by the City of St. Louis for Fiscal Years 2004, 2005, 2006 and 2007.

The History of the Case

Prior to the disputed fiscal years, the City of St. Louis had fully paid the amount certified by the Trustees, based upon the calculations of the Pension Plan’s actuary. Relying upon various legal authorities and reacting to an alleged budget crisis, the City underfunded the Pension Plans, and provided funding based upon a percentage of payroll unrelated to the actuary’s calculations (i.e., 401(k)-like contributions were made for this defined benefit plan).

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Recent Cases Involving Patient Privacy—How Far Does the Duty Go for Employees?

On May 24, 2006, the Illinois Supreme Court granted an appeal for a defendant hospital’s petition for leave. A decision in this case concerns the extent of an employer’s liability for an employee’s off-site and off-duty breach of a patient’s privacy.

The case alleged that plaintiff was a patient at a particular medical group. Blood samples and/or records were sent to a hospital and examined by a phlebotomist. The phlebotomist revealed the results of those records at a public tavern to the plaintiff’s twin sister. The hospital admitted the phlebotomist had revealed one fact about the plaintiff, discovered from her medical records, to the plaintiff’s sister at a tavern, but also alleged that when the phlebotomist revealed the information, she was not acting within the scope of her employment with hospital. Although HIPAA does not provide a private cause of action, in Illinois a common-law right-of privacy cause of action existed for the doctor’s violation of plaintiff’s right to privacy.

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Windshield Placards for Disabled Persons

Charlotte Klingler, et al. v. Director of Revenue, State of Missouri.

Fred Switzer (now retired) was lead counsel for plaintiffs in a successful class action suit against the State of Missouri. The suit alleged the State of Missouri violated the Americans with Disabilities Act (ADA), by charging an annual fee for the use of removable windshield placards that allow disabled persons to park in reserved spaces.

That suit, filed in 1996, was vigorously opposed by Missouri. In 1998, the U.S. District Court for the Western District of Missouri granted the plaintiffs’ request for declaratory and injunctive relief, prohibiting Missouri from charging a fee for the placard.

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Public Employee Pension Funds

Firemen’s Retirement System v. St. Louis.

Lead counsel, Dan Tobben, assisted by colleague David R. Bohm, represent the Firemen’s Retirement System of St. Louis (FRS) in several lawsuits against the city of St. Louis and the Board of Estimate and Apportionment concerning the city’s failure to fully fund FRS.

On June 17, 2005, the Honorable David L. Dowd entered judgment in favor of FRS in the amount of $6,834,947 for fiscal year 2004. A declaratory judgment was entered, as part of the same judgment, mandating the city pay an additional $11,710,276 for fiscal year 2005.

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