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Is a Personal TikTok Protected by the First Amendment?

Oct 05, 2023

Where a plaintiff teacher has alleged that she was retaliated against her for exercising her First Amendment rights, the U.S. District Court has held in favor of the defendants. The court found that the defendants had produced ample evidence to show that the plaintiff’s speech had the potential to disrupt the school district’s learning environment.


Defendants did not contest that the teacher produced the TikTok videos in question as a private citizen or that her posts were a motivating factor in the decision to terminate. Instead, Defendants argued that the teacher’s speech caused a ‘disruption to teaching and learning’ which justified her termination.


It is undisputed that at least some teachers were concerned about the learning environment, but less clear that teachers needed to devote substantial class time to addressing distractions caused by the posts. Nor were there reports of calls or complaints from parents or other community members.


The court held that the Defendants need not allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.


As a public-school teacher, contact with the public, including students and parents who may have been part of groups that the teacher’s posts disparaged, was part of the teacher’s day-to-day responsibilities. The teacher herself acknowledged that her posts could be viewed as derogatory towards transgender individuals.


Several colleagues recognized the posts as inconsistent with the District’s mission to promote tolerance and respect for human differences. Moreover, Defendants’ concerns regarding the nature of the teacher’s posts were directly tied to a risk of disruption in student learning; especially posts regarding transgender students, could make students feel unsafe, unwelcome, or otherwise distracted from learning.


Ultimately, the court held that the Defendants were entitled to terminate a public-facing employee who had taken a stance in direct contradiction to the District’s stated mission.


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288. 

Non-Compete Agreements Are in Jeopardy

26 Apr, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a final rule banning non-competition agreements for all employees except for very narrow exceptions. The FTC’s Final Rule banning all non-competition agreements is effective 120 days after its publication in the Federal Register, which is expected in the next few days.  As of the effective date, all non-competition agreements are banned, except for franchisor/franchisee relationships and for sales of a business between buyer and seller. The FTC’s Rule is retroactive, prohibiting certain non-competition agreements before the effective date of the Rule as well. Existing non-competition agreements can remain in effect as to senior executives, which are defined in the Rule as employees in “policy-making positions” making at least $151,164 annually. The FTC’s Final Rule is already being challenged through the court system and a challenge from the Chamber of Commerce will most likely follow suit. Therefore, if an employer has existing non-competition agreements, the employer may not need to rescind them just yet. Stay tuned for updates as these challenges take their due course.

ALERT: US Department of Labor Increases Salary Threshold for White Collar Overtime and Minimum Wage Exemptions

26 Apr, 2024
By: Trevor Brice, Esq. On April 23, 2024, the U.S. Department of Labor (“DOL”) announced a Final Rule updating regulations governing Executive, Administrative and Professional exemptions (“EAP exemptions”) from the minimum wage and overtime rules. This Final Rule significantly increases the salary threshold for workers to qualify for EAP exemptions. In general, to qualify for EAP exemptions, an employee must 1) be paid on a salary basis, 2) at a threshold level, and 3) primarily perform EAP duties as defined by the DOL. The Final Rule does not impose any changes on the salary basis or job duties relevant in determining EAP exemptions. After issuance of a proposed rule that received approximately 33,000 comments, the DOL in the Final Rule is increasing the salary thresholds in waves. As of July 1, 2024, the salary threshold for EAP exemptions applies to employees making $844 per week ($43,888 annually) on a salary basis. As of January 1, 2025, the threshold increases to $1,128 per week ($58,656 annually). This means that employees making under these amounts on a salary basis as of these dates are no longer exempt from overtime, as long as the other criteria for determining EAP exemptions by the DOL are met. Additionally, the rule increases the salary threshold for the “highly compensated” employee exemption. This exemption applies when an employee meets the greater salary threshold, their primary duty includes performing office or non-manual work and the employee customarily and regularly performs at least one of the duties or responsibilities defined in the EAP exemptions. The DOL also issued the increased salary threshold for the highly compensated exemption in waves. As of July 1, 2024, the salary threshold for the highly compensated employee exemption applies to employees making $132,964 annually, including at least $844 per week paid on a salary or fee basis. As of January 1, 2025, the salary threshold for the highly compensated employee exemption raises to $151, 164 annually, including at least $1,128 per week on a salary or fee basis. The DOL estimates that under the Final Rule, there will be four million workers newly entitled to overtime protection as of 2025. As with the FTC’s Final Rule passed on the same day, the DOL’s Final Rule will most likely be subject to challenge through the court system. However, for employers concerned with this new rule, it would be prudent to identify those positions below or close to the new salary thresholds, consider whether to change salaries given the new thresholds and conduct training as to who will now be exempt under the DOL’s final rule. If there is any gray area as to the DOL’s final rule, reach out to the local employment and labor counsel to determine if there is potential liability. Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
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