Mental Illness and Prison Reform

by Aaron Lawson

Summary

In New York State, “nearly one-third of…prisoners in solitary confinement have been diagnosed with either schizophrenia or bipolar disorder.”[1] Mentally ill prisoners fall into a vicious cycle where they are placed into solitary confinement because their mental illness limits their ability to conform to prison regulations. These inmates often find it difficult to “follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers.”[2] As a result, mentally ill inmates are disproportionately and unjustly punished by placement in isolation. Solitary confinement then worsens their condition, resulting in more prison violations and a lengthier sentence.

A Washington Law Review article published this past June outlines the Americans with Disabilities Act (ADA) and Rehabilitation Act’s potential application in releasing mentally ill inmates from solitary confinement. Solitary confinement is a disciplinary procedure that was originally used from the early 1700s to the late 1800s, and fell out of favor as it was mentally “too severe” and “immeasurably worse than any torture of the body.”[3] However, the 1980’s introduced super maximum security (“supermax”) prisons that are designed for indefinite solitary confinement.

Today there are an estimated 25,000 prisoners in supermax prisons. “Solitary confinement is linked to suicidal thoughts, impaired concentration, confusion, depression, anxiety, paranoia, and hallucinations.”[4] Treatment options are limited by lack of access to health care professionals and group therapy sessions.

Despite these historical and medical findings, solitary confinement has not been considered an Eight Amendment violation. (However, the author notes a few exceptions for “Eighth Amendment challenges to solitary confinement for the mentally ill [in] class action suits.”)[5] Eighth Amendment claims require proving (1) subjective intent; (2) qualified immunity; and (3) subjective deliberate indifference, which the ADA and Section 504 have no such requirements:

“Disability discrimination claims against jails or prisons fall under Title II of the ADA, which prohibits discrimination by any ‘public entity.’ Public entities are defined as ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court confirmed that ‘[s]tate prisons fall squarely within the statutory definition of “public entity.”’ Federal prisons are not covered under the ADA, but are covered under Section 504 of the Rehabilitation Act for the purposes of injunctive relief. Private prisons may be covered under both Title II and Title III, the title that prohibits discrimination in ‘public accommodations.’”[6]

Title II additionally requires that these prison services, programs, and activities be administered in “the most integrated setting appropriate.”[7] Because most facilities house a disproportionate number of mentally ill inmates in solitary confinement, this disparate impact alone may be enough to demonstrate a violation of the ADA.

However, disability rights claims have disadvantages as well. Prisons and jails may be able to claim solitary confinement is a “legitimate safety requirement” grounded in an “actual risk” in order to operate its “services, programs, or activities.”[8] In addition, solitary confinement may be justified if the inmate poses a “direct threat to the health and safety of others.”[9] Class certification is another challenge because a group of inmates’ individualized “mental illness” may not create a “common claim of discrimination and a common solution.”[10]

The author concludes by highlighting other measures both states and prison guard unions are taking to minimize the use of solitary confinement. Overall, the article provides a resourceful outline for expanding the ADA and Rehabilitation Act into prison reform.

[1] Jessica Knowles, “The Shameful Wall Of Exclusion”: How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, 90 Wash. L. Rev. 893, 896 (2015).

[2] Id. at 935.

[3] Id. at 899-902.

[4] Id. at 907.

[5] Id. at 912-14.

[6] Id. at 915-16.

[7] Id. at 935-36.

[8] Id. at 921.

[9] Id. at 921.

[10] Id. at 922.

New Developments in Assisted Suicide Legislation

by Shannon Crane

 

This month, the California legislature passed the “End of Life Option” bill into law. This makes California the fifth state to legalize physician-assisted death by either legislative action or court ruling. Under section 443.2 of the law, an adult resident of California may request a prescription for an “aid in dying” drug if they meet all of the following criteria: (1) diagnosed with a terminal disease, (2) voluntarily wish to receive the prescription, (3) established California residency, (3) documented official request form, (4) establish the physical and mental ability to self-administer the “aid in dying” drug. The law prohibits consideration of any requests made solely because of age or disability. Further, the law prohibits any requests made via proxy or surrogate, including through power of attorney or any other legally recognizable health care decision-maker.

A key aspect of the new law falls under section 443.13. Under this section, the sale or procurement of life, health, or annuity insurance plans “may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug” and “death resulting from the self-administration of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis.” Further, a qualified individual’s self-administering of an “aid-in-dying drug shall not have an effect upon” any of the aforementioned policies, and shall be considered in the same way that a natural death from the underlying disease would be treated. This is crucial because many insurance policies can be affected, or even voided by the act of suicide.[1]

In New York, Public Health Law section 2989 specifically prohibits physician assisted death. However, there is pending legislation in the New York Assembly, sponsored by Linda B. Rosenthal, that almost identically mirrors the California law. Past versions of physician-assisted suicide have failed to pass in New York, but with the wave of recent successful laws across the country, there may be a better chance for success. The bill will likely be heavily contested.

 

[1]John Dorfman, How Life Insurance Policies Deal with Suicide, Time: Money (Aug. 15, 2014), http://time.com/ money/3117698/how-life-insurance-policies-deal-with-suicide/

New York Court of Appeals: Auqui v. Seven Thirty One Ltd. Partnership

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

View Full Decision on Westlaw

20 N.Y.3d 1035 (2013).

2011 Symposium: Predators, Porn and the Law: America’s Children in the Internet Era

On April 9, 2011, the Syracuse Law Review hosted a symposium entitled “Predators, Porn and the Law: America’s Children in the Internet Era.”  Below is an expert from the program:

From chat rooms to sexting, how do we keep our children safe from online predators? Please join the Syracuse Law Review and SU College of Law community on Saturday, April 9, 2011 for a groundbreaking conference at the College of Law which will bring together legal scholars, children’s advocates, and law enforcement from across the U.S. for discussions regarding the safety of America’s children in the Internet age.

“This conference will be a unique opportunity for academics, legal professionals, and local community members to come together for a critical examination and timely discussion about the safety of our children in the Internet era,” says third-year law student Jennifer M. Haralambides, who is editor in chief of the Syracuse Law Review.

Marc Klaas, founder of the KlaasKids Foundation for Children and national advocate for child safety, will be the keynote speaker at 3 p.m. in Hendricks Chapel. Mr. Klaas started his Foundation after the 1993 kidnap, rape, and murder of his 12-year-old daughter.

In addition to Mr. Klaas’ keynote, the day-long conference will feature presentations by the National Center for Missing and Exploited Children, the U.S. Attorney’s Office, the Federal Public Defender’s Office, and leading scholars including Ilya Shapiro from the CATO Institute, Professor Amy Adler from NYU, and Professor Mary G. Leary from Catholic University.

Below is the keynote address from Marc Klaas:

Part 1

Part 2

Part 3

Part 4

2006 Nuclear Iran Symposium

On October 26-27, 2006, the Syracuse Law Review and the Institute for National Security and Counterterrorism co-sponsored a symposium entitled, “A Nuclear Iran: The Legal Implications of a Preemptive National Security Strategy.” Participants included a number of legal scholars that specialize in preemption, use of the military (including the legality of covert operations), the role of international organizations, and use of diplomatic options (such as sanctions), as well as experts in Iranian, Israeli, and Middle Eastern politics and history. They discussed such issues as why Iran wants to be a nuclear power, the regional and international security ramifications of Iran acquiring nuclear weapons, the domestic and international legal and political framework governing nuclear proliferation, and the legality and impact of various U.S. and international actions to prevent Iran from becoming a nuclear power.

The symposium opened with keynote remarks drafted by James Timbie, Senior Advisor to Dr. Robert Joseph, Under Secretary of State for Arms Control and International Security and the principal State officer for non- and counter-proliferation matters. It concluded with Pulitzer Prize-winning journalist and author Seymour Hersh, who gave a keynote address and moderated a panel discussion on the legality and effectiveness of various U.S. responses to a nuclear Iran. Articles written by the panelists were published by the Syracuse Law Review in its spring book, which was dedicated solely to the symposium.

Student Notes Selected for Publication in the 64th Volume

Please join the Syracuse Law Review in congratulating the following 2L editorial members who were selected for publication in the 64th Volume of the Law Review.

Workin’ on our Nite Moves: A Pole-Arized Application of a Sales Tax Exemption to Exotic Dance
Riane Lafferty
View Abstract

A Tweet Is(n’t) Worth a Thousand Words: The Dangers of Journalists’ Use of Twitter to Send News Updates From the Courtroom
Jamie Winnick

Proper Misuse: How Courts Should Develop Copyright Misuse to Protect Copyright Holders’ Brand Image and Market Reputation
Jaclyn Morgese

Down on the Pharma: How Green-Lighting Generics Can be a Game-Changer Against Off-Label Marketing by Brand-Name Offenders
Sean Quinn
View Abstract

Drawing the Lines in the Shale: Local Zoning Bans, the Takings Clause, and the Clash to Come if New York State Promulgates Hydrofracking Regulations
Nicholas Cortese

The Fair Sentencing Act Isn’t All It’s “Cracked” Up to Be: How Recent Congressional Action on Federal Crack Cocaine Sentencing Schemes Failed to End the Disparity Between Crack and Powder Cocaine Offenses
Hilary LaBar

Alternates:

Biology v. Psychology: Legal Strangers Raising Kids: Extending Constitutionally Protected Rights to Non-Biological Parents in Same-Sex Relationships
Amy Armstrong

Judges Who Act to Mitigate Immigration Consequences of a Criminal Conviction: A Problematic Use of Judicial Discretion?
William Garnett

 

2013-2014 Managing Board of Editors Elections

The Syracuse Law Review is pleased to announce the 2013-2014 Managing Board of Editors.

Seen below from top left: Jeffrey Monahan, Form and Accuracy Editor; Nicholas Cortese, Lead Articles Editor; Mark O’Brien, Editor-in-Chief; Alex Miller, Managing Editor; Alexander Formato, Form and Accuracy Editor; Jonathan Gray, Computer Editor; Hilary LaBar, Leader Articles Editor; Jamie Winnick, Form and Accuracy Editor; Sophia Cahill, Senior Notes Editor; Maureen Wenzel, Business Editor.

859211_564083600276022_1487089354_o

Editor-in-Chief

Mark O’Brien

Managing Editor

Alex Miller

Form & Accuracy Editors

Alexander Formato
Jeffrey Monahan
Jamie Winnick

Lead Articles Editors

Nicholas Cortese
Hilary LaBar

Senior Notes Editor

Sophia Cahill

Business Editor

Maureen Wenzel

Computer Editor

Jonathan Gray

Court Watch Editor

Matthew Snider

Executive Editors

Kristin Forshee

Heba Girgis

John Goring

Nicole Lindgren

Sean Quinn

Brian Restauro

Daniel Riley

Edward Thater
Jill Wojdyla
Associate Notes Editors

Amy Armstrong

Ronny Chan

Matthew Clemente
Amanda Giannone

Jaclyn Morgese
Rachel Ostrowski
Hannah Stewart

Comment: Suffering in Silence: The Dark Side of Judging in 2013

This Comment is intended to show the dark side of judging.  This paper was written with the intent to provoke discussion about the very important topic of judicial security and internet safety.  The purpose of this Comment is to allow the reader to place themselves in the role of a judge who is enduring these threats on a daily basis.  I ask the reader to feel what a judge feels and then think about steps that may need to be taken to further protect these judicial officers and public servants.  More importantly, what can be done to protect their families?  The advent of social media and the internet is allowing judicial predators to post pictures of judges’ children and grandchildren online.  How would you feel if it was your child or grandchild?

This Comment is not about an analysis of free speech, privacy, or any other law, rule, or procedure.  It is simply about determining what is right and what is wrong.  Is the risk mentioned in this paper a new part of the job description when a person is appointed to the federal bench?  Would you assume this very real risk that could affect the health and safety of your family?

View Full PDF

Andrea Henson-Armstrong: Professorial Lecturer, Information Systems and Technology Management Department, George Washington University; Instructor, Judicial Administration Program, Michigan State University. MS-IST, George Washington University; J.D., University of the District of Columbia; B.A., University of California, Riverside.

Note: The Prosecution of Child Soldiers: Balancing Accountability with Justice

I saw some other SBU [Small Boys Unit] boys coming closer to me with another small boy and the boy was crying, screaming.  He asked them, “What have I done?”  They didn’t say anything to him, but the boy was screaming.  At first they had to put his right arm on a log.  They took a machete and amputated it at the wrist.  The boy was screaming and they took the left arm again and put it on the same log and sliced it off.  He was still screaming and shouting.  They took the left leg and put it on the same log and cut it off at the ankle.  At last they took the right leg again and put it on the same log and cut it off with a machete.  Some held him by his hand at that time now and I am speaking about the same SBU boys.  They are the same people doing this.  Some held his other hand, legs.  They were swinging the boy.  They threw him over into a toilet pit.  I was there, I saw it myself.[1]

Children are capable of committing atrocious crimes.  With an estimated 300,000 child soldiers currently participating in armed conflict around the world,[2] children are undoubtedly responsible for numerous deaths, rapes, mutilations, and other crimes.  However, the international community has failed to set an age at which these children can be held legally responsible for their actions.  In contrast, domestic courts have further complicated the issue by setting the minimum age of criminal responsibility anywhere from seven to eighteen-years-old.

The Convention on the Rights of the Child (“CRC”) provides the most widely accepted definition of childhood:[3]  a child “means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”[4]  Unfortunately, the CRC lacks support from any international treaties binding this definition as the proper age of criminal responsibility.  Nonetheless, it correctly appears to allow for a lower age of majority taking into account individual cultures and domestic laws.

In determining the proper age at which a child can be held criminally liable, many factors must be considered, including physical and mental maturity, traditions, and culture.  Victims of these atrocities must also receive proper consideration.  Their quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.  This delicate balance is difficult to accommodate and certain non-judicial mechanisms, such as truth and reconciliation commissions and cultural cleansing rites, have provided some relief for both the victims and perpetrators.

While rehabilitative measures are preferable to judicial measures for all individuals under eighteen, both international and domestic courts must continue to retain their discretion to prosecute juveniles for the most atrocious crimes.  To properly ensure these judicial systems promote equality and justice, not simply retribution, it is crucial that the international community determine a uniform age at which a child can be held responsible in a global forum and consequently begin to set a precedent for domestic courts.

Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old.  Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions.  Additionally, this section suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal.  Part III provides a case study of the only person under eighteen years of age who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat.  Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts.

View Full PDF

Erin Lafayette: Syracuse University College of Law, J.D. 2013.



[1].  Transcript of Record ¶¶ 699-700, Prosecutor v. Taylor, SCSL 2003-01 (Jan. 8, 2008).  The SBU was a group of approximately 10,000 children, generally between the ages of 8-10, who were recruited by the Revolutionary United Front as militants during the civil war in Sierra Leone.  This was a common form of mutilation by children.

[2].  Children of Conflict:  Child Soldiers, BBC, http://www.bbc.co.uk/worldservice/people/features/childrensrights/childrenofconflict/soldier.shtml (last visited Jan. 12, 2012).  This number is unclear due to the difficulty in accurately counting children recruited into armed conflict.

[3].  Matthew Happold, Child Soldiers:  Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 62 (2008).  The CRC has been ratified by every State except the United States, Somalia, and South Sudan.

[4].  Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

Article: From Peoria to Peru: NLRB Doctrine in a Social Media World

The National Labor Relations Board’s (the “NLRB” or “Board”) interest in social media issues has surprised many practitioners.  Over a nine-month period spanning the end of 2011 and beginning of 2012, the Board’s Acting General Counsel (“AGC”) issued three reports, totaling eighty-three pages, analyzing dozens of potential cases involving social media matters.  Some of the cases involved sensational facts—for example, the ambulance company employee who called her supervisor a “scumbag” and compared him to a psychiatric patient on Facebook, or the auto dealership employee who lambasted his employer online over the “less than luxurious” food and drink offered to customers at a company event, or the bartender who complained on Facebook about the bar’s customers, calling them “rednecks” and hoping they choked on glass as they drove home drunk.  Other cases analyzed by the AGC dealt with more mundane matters, such as whether an employer’s social media policy was drafted in a manner that could potentially restrict an employee’s right to engage in protected concerted activity under the National Labor Relations Act (“NLRA” or the “Act”).

Given the dramatic rise in social media use in the United States, it is not surprising that the Board has expressed a strong interest in analyzing its use in light of established Board law.  By its nature, social media is the perfect vehicle both for “protected, concerted activity” and immeasurably idiotic and flippant statements.

The Board, like any adjudicative body, applies its established legal precedent to the facts at hand.  Nevertheless, law is a fluid principle.  This Article advances a theory that the Board’s application of its established “brick and mortar” case law in matters involving social media fails to appropriately acknowledge the very nature of social media.  Rather than merely apply old standards, the Board should make a creative effort to develop new standards that recognize an employer’s legitimate need to control employee outbursts in a digital age where “going viral” can dramatically alter public perception overnight.  Despite the Board’s attempt to fit these discussions into the traditional and comfortable box of “water cooler” discussions, the simple fact is that these are not “water cooler” discussions.  These are words and images that travel from Peoria to Peru in the proverbial nanosecond, capable of being stored and captured on a digital timeline forever.  The Board must respond to this reality or remain what former NLRB Chairwoman Wilma Liebman famously described as the “Rip Van Winkle” of administrative agencies.

Part I of the Article provides an overview of various social media platforms.  Part II outlines the traditional framework within which the Board has evaluated protected concerted activity, while Part III explains how the Board, Administrative Law Judges (“ALJs”), and the NLRB’s Division of Advice and AGC have attempted to apply these traditional tests to social media activity.  Part IV highlights the limitations of this approach and provides suggestions for a new applicable legal standard that properly acknowledges the risks associated with employee misuse of social media and distances itself from the ill-fitting “water cooler” analogy.

View Full PDF

Colin M. Leonard is a member and Tyler T. Hendry is an associate at Bond, Schoeneck & King, PLLC in the Firm’s Syracuse, New York office.  Both practice in the Firm’s Labor & Employment Law Department.