Firing by Facebook

Facebook Although just bad practice in the United States, Minna Kotkin (Brooklyn) brings to my attention a case in Canada where the cavalier nature of a firing may lead to bad faith damages being awarded against the offending employer.

Carolyn Elefant of Legal Blog Watch Blog reports:

These days, Facebook isn’t just a go-to social media application. The Web site’s ubiquitous role in everyday life is also transforming it into a conduit for lawsuits. A few weeks back, I posed about the Australian court that allowed lawyers to serve a couple with lawsuit papers via Facebook. Now, the Calgary Herald reports that a Canadian spa used Facebook to fire an an employee, esthetician Crystal Bell.

Is it illlegal for an employer to fire a worker via Facebook, or just imprudent? Here in the United States where employment is entirely at will, there aren’t any laws, at least as far as I’m aware, that would protect an employee from being fired on Facebook. However, the Supreme Court of Canada, in a 1997 ruling known as the Wallace decision, set out how a firing, if done in a cavalier way, can result in “bad faith”damages in addition to normal severance pay. However, the ruling does not address the issue of whether being fired electronically equates with bad faith. Moreover, at least one lawyer whom Bell contacted advised that she didn’t have much of a case — she’d only been at the spa for two weeks.

Putting aside the merits of this specific case, the cause of action that comes to mind for me is the tort of intentional infliction of emotional distress, since the focus is the manner in which the employee has been fired. Yet, I am not convinced that Facebook firings, which are certainly in bad taste and demonstrate a lack of tact, would probably not meet the standard of extreme outrageousness, which would require the action taken be: “utterly intolerable in a civilized society.”

Indeed, the ubiquity of Facebook and the amount of communications taking place over it might make such electronic terminations seem more conventional than outrageous.

Continue ReadingFiring by Facebook

From Russia with Love

In my first post, I want to thank Dean O’Hear for the invitation to serve as January’s Student Blogger of the Month, as well as my predecessors for the high bar they have set for me.  It’s rare that someone willingly gives me a forum to opine on topics of my choosing, and I am glad (and honored!) to have this one. 

A little over a month ago The Economist ran a special report on corruption in Russia, including a brief note about the mounting problems within the Russian judiciary.  Although the latter article mostly contains interesting observations regarding prosecutorial abuse within the criminal justice system, I want to highlight one particular passage concerning civil litigation:

Things are not much better in corporate disputes. Large companies rarely trust in a judge’s unprompted decision. In commercial courts a judge often takes a bribe for reaching a speedy conclusion. All this helps to explain why the European Court of Human Rights is overwhelmed with Russian cases, and why large Russian companies seek justice in London. The Yukos case [described in the former link] showed that the courts have become part of the Kremlin machinery. The problem, says one Moscow lawyer, is that “the law in Russia is often trumped by money and always by high-level power.”

According to some, the same thing may be happening in the United States. 

Continue ReadingFrom Russia with Love

Wisconsin Court of Appeals Decides Important Video Privacy Case

Over on Concurring Opinions, Dan Solove reports on a recent Wisconsin Court of Appeals case involving Wisconsin’s video voyeurism law, Wis. Stat. § 942.09(2)(am). The case is State v. Jahnke, 2007AP2130-CR (Dec. 30, 2008). Wisconsin is one of a number of states that have adopted such statutes, which generally bar videotaping someone without their consent who is in a situation in which they have a “reasonable expectation of privacy.” Wisconsin’s version makes a violation a Class I felony.

Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.

The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.

Continue ReadingWisconsin Court of Appeals Decides Important Video Privacy Case