That's What They Said: Facebook "Like" Under the First Amendment, Same-Sex Marriage Benefits, Plus a Carnival

That's What They Said: Facebook "Like" Under the First Amendment, Same-Sex Marriage Benefits, Plus a Carnival

 Now, where did I put the mustard for my deep fried Red Bull battered Twinkie dog? (Like I would ever use ketchup for that?!?)

While I search for the spicy brown, I'll get you caught up on the latest employment-law news...

Over at the Wall Street Journal's law blog, I read Joe Palazzolo story about a decision from the Fourth Circuit Court of Appeals, arising out of a claim by a former deputy sheriff, who argued that he was fired after he "liked" the Facebook page of the man running for political office against his boss. The Court held that clicking "like" on Facebook is a form of speech protected by the First Amendment. You can read a copy of the court's opinion here. (opinion here) [an enhanced version of this opinion is available to subscribers]. 

While the First Amendment implications of this case won't matter too much for private sector employers, I'll point out that if a "like" is considered "speech" -- the Fourth Circuit called it the "Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech" -- then "liking" a co-worker's Facebook rant against an employer may be protected under the National Labor Relations Act. Or, I could imagine that "liking" a co-worker's Facebook complaint about discrimination in the workplace could trigger protections under a number of anti-retaliation laws. So, keep that in mind.

(Where the hell is that mustard?)

And, yesterday, the Employee Benefits Security Administration released "Guidance to Employee Benefit Plans on the Definition of "Spouse" and "Marriage" under ERISA and the Supreme Court's Decision in United States v. Windsor [enhanced version],"  a copy of which you can find here. EBSA determined that the term "spouse" refers to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. The term "marriage" includes a same-sex marriage that is legally recognized as a marriage under any state law.

Finally, I suggest that all of you check out this month's collection of the best employment law blog posts all in one place. It's the Employment Law Blog Carnival: The Princess Bride Edition. Heather Bussing and HR Examiner did a fantastic job putting it together.

Maybe Heather can spare some mustard.

This article was originally published on Eric B. Meyer's blog, The Employer Handbook.

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