Labor & Employment Law – Page 12 – Marquette University Law School Faculty Blog

4th Cir: Liking on Facebook Is Protected First Amendment Activity

Post author:Paul M. Secunda
Post published:September 20, 2013
Post category:Computer Law First Amendment Labor & Employment Law Public

Some of you may recall a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech. I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.

Yesterday, the Fourth Circuit made the world right again by finding that liking a candidate’s campaign page on Facebook was in fact protected First Amendment speech.

Here is the link to the 4th Circuit’s decision (2-1) in Bland v. Roberts. And here is the pertinent language from the Court’s opinion:

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Bill Herbert has written on these First Amendment issues involving social networking by public employees in Can’t Escape from the Memory: Social Media and Public Sector Labor Law. The article has now been published in North Kentucky Law Review as part of the Law + Informatics Symposium on Labor and Employment Issues. A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU, for organizing this very worthwhile event.

An Analysis of the 7th Circuit’s Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision

Post author:Paul M. Secunda
Post published:January 22, 2013
Post category:Labor & Employment Law Public Wisconsin Law & Legal System

On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin’s decision in the same case.

The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.

That only “most” public sector workers in Wisconsin were covered by Act 10 – most general public sector employees were, but most public safety workers were not – became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.

The Western District of Wisconsin held that Act 10’s distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis.

Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law

Post author:Paul M. Secunda
Post published:November 7, 2012
Post category:Labor & Employment Law Political Processes & Rhetoric President & Executive Branch Public

In light of President Obama’s resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in the labor and employment law area during a second Obama administration:

First, I think the verdict is still very much out on whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term. It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.

On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act. I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.

On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains.