McBrayer & Blackstone Media Present 8 Do’s & Dont’s of Social Media!

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McBrayer has teamed up with Blackstone Media to present ways that you can use social media to generate leads for your company while staying within the legal parameters. Presenters Amy Cubbage, Cindy Effinger, and Taylor Trusty will provide practical advice that you can use immediately in your marketing, hiring/human resources, and crisis management plans.


Join us on 8/25 from 8:30 a.m. to 10 a.m.

(breakfast provided)

Central Bank
9300 Shelbyville Road
Community Room, 2nd floor
Louisville, KY 40222


Click here and use “MMLK15″ for a discounted rate of $15 per person.

NLRB Judge Adds to Uncertainty Regarding Work Rules and Social Media Policies

On June 4, 2014, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) held in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, that certain work rules and social media policies designed to protect customer privacy constituted unfair labor practices. The rules and policies at issue applied to employees who worked on customers’ premises.

ALJ Raymond Green ordered the company to cease and desist from enforcing any work rule or policy that:

  • Prohibits employees from disclosing the location and telephone number of employee customer assignments, as it could inhibit the ability of a labor union to meet and communicate with employees;
  • Prohibits employees from engaging in boisterous or disruptive activity in the workplace, based on prior Board decisions, because the rule is “sufficiently imprecise” and could encompass any disagreement or conflict among workers protected by Section 7 of the National Labor Relations Act (NLRA);
  • Prohibits employees from initiating or distributing chain letters, sending communications, posting information, or using personal computers in any manner that may adversely affect company business interests or reputation, because the rule overreached by including personal computers; or
  • Prohibits employees from photographing, taping, or recording any person, document, conversation, communication, or activity that in any way involves the company, its associates, customers (except to the extent that the customer disallows photographing or filing on its premises), or other individual with whom the company intends to do business. The ALJ opined that, on balance, the employees’ rights generally outweighed the employer’s well-intended interest in customer privacy.

The ALJ upheld the company’s policy prohibiting employees from disclosing customer information to other customers, third parties, or members of the employee’s family. He reasoned that such a rule would not unreasonably deter employees from talking to one another or the union about terms and conditions of employment. Some aspects of the ruling conflict with other ALJ decisions, adding to the uncertainty about which work rules or social media policies the NLRB and courts will ultimately determine to be impermissible. As ALJ Green observed, “[A] legitimate conflict of principles … will require Board and Appellate Court clarification.” The company is expected to appeal the decision to the full Board and, if necessary, to the appellate court.

This case is a perfect example of the NLRB General Counsel’s continued enforcement efforts to focus on work rules and policies that conceivably limit employee rights to discuss wages, as well as other terms and conditions of employment. Unfortunately, the ruling could affect employers who are targets of union organizing campaigns, not just those who already have collective bargaining agreements in place. The bottom line is that this ruling is another reason why all employers should regularly update and review their handbooks and policies with their employment law attorneys.

Kembra Sexton Taylor






Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

Facebook Friends & Workplace Enemies, cont.

On Monday, I provided details about the Ehling case wherein an employee had made an inappropriate Facebook post and, unbeknownst to her, had that Facebook post sent to her manager by a Facebook “friend” and coworker.

When the plaintiff, Ehling, was suspended from her hospital job because of the post, she sued in federal court alleging a violation of her rights under the SCA. The District Court found that non-public Facebook wall posts are protected by the SCA. A key factor in the Court’s ruling was that Ehling had configured her privacy settings so that her posts were only viewable by her Facebook friends.

Despite this protection, the Court held that the hospital was not liable because one of the SCA’s exceptions applied. Specifically, the exception was conduct authorized “(1) by the person or entity providing a wire or electronic communication service; [or] (2) by a user of that service with respect to a communication of or intended for that user.” Because Ehling had “friended” her coworker, giving him access to her Facebook wall, and the coworker had provided management with the posting without any solicitation, the exception applied.

If the hospital had asked the paramedic for the information or to keep them apprised of a fellow employee’s online activity, it would have led to a SCA violation. The access would be unauthorized.

The lesson learned from Ehling is that employers should be cautious when presented with an employee’s social media account material by another employee. While the posts may warrant some kind of action being taken against the subject employee, if the information is solicited or requested by the employer, it could lead to a federal violation.


Cindy Effinger






Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or

This article is intended as a summary of  state and federal law and does not constitute legal advice.

Facebook Friends & Workplace Enemies

Inappropriate Facebook posts, pictures and the like have led to many firings in recent years. A large number of employees have become smarter on social media and made a concerted effort to not “friend” a manager or boss. They think that they are keeping their online persona and work reputation separate…but is that really possible when dealing with the Internet?

It is not uncommon for an employer to be completely oblivious to an employee’s inappropriate online actions until presented with the evidence from a Facebook “friend” and coworker of the subject employee. If the employer chooses to take adverse employment action against the subject employee, the coworker’s evidence can be crucial in defending against a discrimination lawsuit.

Nonetheless, employers should think twice before they solicit coworkers to disclose the postings of another employee because of the Federal Stored Communications Act (“SCA”). The SCA prohibits intentionally accessing without authorization a facility through which an electronic communication service is provided or intentionally exceeding an authorization to access that facility. 18 U.S.C. §2701(a).

In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-3305 (WMJ)(D.N.J. Aug. 20, 2013), a New Jersey federal court held than an employee’s Facebook wall posts were protected by the SCA.

Deborah Ehling (the plaintiff) was a registered nurse and paramedic. She had a Facebook account with approximately 300 friends, but was careful to not add any hospital managers or supervisors as friends and maintained her privacy settings so that only friends could see posts.

In 2009, Ehling made a statement on her Facebook wall criticizing emergency response paramedics at a shooting at the Holocaust Museum in Washington, D.C., who reportedly saved the life of the shooter. It read:

An 88yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? And 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards…go to target practice.

A coworker and Facebook friend of Ehling’s printed a screenshot of this post and emailed it to Ehling’s manager. It is important to note that the friend was not prompted by the manager for any information about Ehling or to be apprised of any of her online activity. It was simply something the “friend” chose to do on his own.

Ehling was subsequently suspended and received a memo from the hospital explaining that such action was taken because her Facebook comment reflected a “deliberate disregard for patient safety.” The memo prompted Ehling to file a complaint with the National Labor Relations Board. It was found that the hospital was not in violation of the National Labor Relations Act. She then filed suit in federal court, alleging the hospital had violated her rights under the SCA.

To learn about the outcome of this case, check back on Wednesday.

Cindy Effinger








Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or

This article is intended as a summary of  state and federal law and does not constitute legal advice.

McBrayer Attorneys Present at NADSA Conference

On October 10, 2013, three McBrayer attorneys spoke at the 2013 National Adult Day Service Association Conference held in Louisville, Kentucky. Lisa English HinkleJaron P. Blandford,and Cynthia L. Effinger presented, “ Hot Topics in Employment Law: Social Media; the Intersection of HIPAA and the NLRB; and Everyday Challenges.” The seminar discussed several important employment law updates for adult day service providers. You can download a copy of their presentation here: 2013 NADSA Conference.