Thursday, August 28, 2014

Week in Review

The National Labor Relations Board continues to focus on employer social media policies and employee discipline for online activity.  In a ruling this week involving Triple Play Sports Bar & Grill, the Board concluded that Triple Play unlawfully fired two employees for their response to a co-worker's Facebook post.  One of these employees had only responded to the post by clicking the Facebook “like” option on the post.  The Facebook post at issue related to the employer paying taxes, and the Board concluded the exchange about the post, including the “like” response, was a protected group discussion about a term or condition of employment.  In addition, the Board found that the employer's social media policy was unreasonably restrictive because it prohibited "inappropriate discussions about the company." As we’ve discussed in numerous other posts, non-management employees have a protected right under labor law to engage in group discussion and activity to try to better their terms of employment.  You can read more below about the Triple Play case and how to stay on the right side of the National Labor Relations Board.  And, speaking of Facebook, anyone familiar with the social media site is aware of the viral ALS ice bucket challenge.  While the challenge has been an enormous fundraising success, check out the link below for a list of things employers should consider before hosting or approving a group workplace challenge.

Technology and the Workplace
Facebook firing causes unfair labor practice double play for NLRB (Ohio Employer's Law Blog)
A Cold Shower for Workplace Ice Bucket Challenges? (Connecticut Employment Law Blog)
5 Ways the Workforce Will Change in 5 Years (Mashable)
Uber Faces Storm Over Controversial Recruitment Tactics (WSJ)
When psychiatrists are on Facebook, their patients can get a case of TMI (The Washington Post)

Technology and the Law
Calif. governor signs smartphone 'kill switch' bill into law (CNET)
FBI Probes Possible Hacking Incident at J.P. Morgan (WSJ)
Judge Denies Apple Request for Injunction vs. Samsung Phones, Tablets (WSJ)
More than 1,000 businesses affected by same malware as Target (LA Times)
Dairy Queen confirms potential data breach (Minneapolis/St. Paul Business Journal)

There's an App for That
Wearables has become a household name.  Could nearables be next?  (The Washington Post)
Twitter Just Gave You Analytics Power.  Is It Useful? (WSJ)
TiVo goes after cord-cutters with post-Aereo device (CNN)
Waterproof e-reader launched for bath time bookworms (The Guardian)
Bye Bye, Birdie:  How to Delete All Your Tweets in an Instant (Yahoo)

Tuesday, August 26, 2014

Bordering the Obvious

Last week we learned in Olson v. Push, Inc. that Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) does not apply to a West Virginia employee working for a Wisconsin company. While at first blush this may seem like a no-brainer, there were facts in this case that made it a closer call. The plaintiff, Shawn Olson, applied for employment with Push while he was living in Minnesota. Push arranged for Olson to take a pre-employment drug screen, and for convenience sake, the test was arranged at a testing facility in Minnesota. Olson argued that because DATWA applies to employers “doing business in this state,” and that he was subjected to testing in Minnesota, it was sufficient to apply DATWA’s protections to his circumstances.  

A federal district court disagreed and dismissed Olson’s case. The court held that it was not the intent of the Minnesota legislature to apply DATWA to out of state employment relationships. The court determined that the place of the employment, and not the residency of the employees, is the key consideration. 

Minnesota laws are frequently unclear regarding their application beyond the Land of Lakes. The Olson decision is helpful in clearing up ambiguity surrounding the reach of DATWA and other state employment laws in cases where the connection to Minnesota is slight. This case will help determine the application of Minnesota employment laws in circumstances such as where an employee resides in Minnesota but works in a bordering state, or where an employee has a territory that includes, but is not limited to, Minnesota. Since courts rarely have an opportunity to analyze issues like these, it is oftentimes difficult to locate a definitive answer to some seemingly obvious questions.

Thursday, August 21, 2014

Think Before You “Snail Mail” Those FMLA Notices

When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.

Now, it turns out, that you better be careful before you “snail mail” too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her assertion that she did not receive an FMLA notice that her employer sent to her by regular U.S. mail. In the case, Lupyan v. Corinthian Colleges, Inc., No. 13-1843, 2014 WL 3824309, at * 7 (3d Cir. Aug. 5, 2014), the plaintiff Lisa Lupyan went out from work on a medical leave. After Lupyan provided medical certification to take FMLA leave, her employer, Corinthian Colleges, mailed her a legally required FMLA notice stating that Lupyan’s leave was being designated as FMLA leave and that the FMLA provided for 12 weeks of leave. When Lupyan failed to return to work at the end of 12 weeks, the College terminated her. Lupyan then sued, claiming a violation of the FMLA. The College argued, however, that the case should be dismissed without a trial given that it mailed the required FMLA designation notice and Lupyan did not return within 12 week or comply with the FMLA notice contents. Lupyan claimed, however, that she never received the mailed FMLA designation form.

Siding with Lupyan, the Third Circuit Court of Appeals declined to follow the longstanding “mailbox” rule, under which courts have traditionally presumed that a properly addressed and stamped letter reached its destination. Noting the new technological age in which we live, the Court stated that:

In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.

Lupyan Opinion (PDF).
 What does this mean for employers?  There are a couple of important take-aways:
  • While the Third Circuit’s opinion in Lupyan is not binding on courts in other jurisdictions, it should be a wake-up call for employers to think carefully about the manner in which they deliver legally required notices and other important information to current or former employees. If an employer will need to be able to prove unequivocally that a notice was both delivered and received, it should send the notice in a manner that allows it to be tracked and its receipt to be confirmed. Since the receipt of emails can be hard to verify and emails can sometimes be diverted by a spam filter, hand-delivery or certified or overnight mail, return receipt requested, may be preferable.
  • The Third Circuit’s ruling comes during a period of increased government focus on FMLA compliance. The U.S. Department of Labor’s FMLA Branch has announced its intention to step up FMLA enforcement and workplace audits. In connection with any FMLA audit, an employer can expect that the employer’s required posting, employee notice, and recordkeeping practices will be key. So, it may be time to consider a self-audit to ensure that your company is taking all the appropriate steps to comply with the FMLA and to make sure that required employee notices are being both delivered and received.
  • Finally employers should also remember that, apart from the FMLA, they may have disability accommodation obligations to employees who are unable to immediately return at the end of FMLA leave. As we’ve covered in past blogs, as the end of FMLA approaches, employers who face an employee request for additional leave time need to consider whether the employee may be disabled and whether additional leave time would be a form of “reasonable accommodation.”

Week in Review

Significant electronic data breaches made headlines again this week. Supervalu announced that millions of customer credit card numbers were stolen at various stores. In addition, one of the nation’s largest hospital chains - Community Health Systems - announced that the personal data of up to 4.5 million patients was taken when hackers bypassed the company's security measures. These latest breaches come at a time when a private research report is indicating that the medical sector has had more data breaches in the last two years than military and banking sectors combined. As we’ve discussed in previous posts, these ongoing data breaches are a reminder to employers to shore up your security measures for safeguarding sensitive employee data.

In legal news, a Virginia federal court ruling is a good reminder of the risks related to supervisors “friending” employees on social media sites. In the case, the employer tried to defend an employee’s disability discrimination claim on grounds that it lacked knowledge of any disability. The Virginia court found, however, that the employee sent a Facebook message to his supervisor revealing his diagnosis and that this was sufficient notice of the disability. Courts have traditionally held that, once a supervisor knows information, the company is deemed to know it as well. So, add this to your list of the reasons to think twice about how your company wants to handle supervisor and employee “friending” issues.

Technology and the Workplace
Beware of contacting employees through social media (HR Hero)
Overstock to Allow International Customer to Pay in Bitcoin (NY Times)
Delivery Start-Ups Are Back Like It's 1999 (NY Times)
Uber Opens Software Platform to Boost Ride Demand (WSJ)
The French Answer to Flexible Working:  The Right to Privacy and To Limit Work After Business Hours (Trading Secrets Blog)

Technology and the Law
Heartbleed may be culprit in hospital chain hack (CNET)
90% of hospitals and clinics lose their patients' data (CNN)
FBI Investigating Reported Theft of 1.2 Billion Passwords by Russian Gang (NBC News)
Delaware Agrees to Let Families Inherit the Social Media Accounts of the Deceased (Yahoo)
The Feds Want Cars to Chat Instead of Just Watching Each Other (WIRED)

There's an App for That
Square Expands Its Cash Advance Service (NY Times)
Fuhu's Big Tablet Gives Kids More Screen Time Together (WSJ)
Unpakt is 'Yelp for moving companies' (CNN)
Twitter to display tweets from accounts you don't follow -- like it or not (CNET)
Mom-Made App Allows Parents to Lock Their Kids' Phones Until They Call Back (Yahoo)

Thursday, August 14, 2014

High School Football Players (and others) Tweet with Caution

I recently read an article about how college football recruiters are using twitter to screen out potential players for their teams. It’s becoming a somewhat common practice for recruiters to monitor the twitter accounts of high school players that they are scouting to see whether any red flags are raised. Based on some of the inappropriate tweets, colleges have decided not to pursue particular players and, in at least one instance, have even withdrawn a scholarship offer. Some of these college coaches are encouraging high school coaches to teach players that they need to be careful about what they post on social media. It seems to me that this is education needed by lots of people, not just high school athletes. I still find myself shocked from time to time about what people will post on social media sites.

So should company recruiters adopt the football recruiters’ approach and routinely review various social media postings before making hires? Like many things in the human resource/employment law realm, there really isn’t a clear cut answer. 
On one-hand, there’s risk in not doing your due diligence before hiring a candidate. What if a quick search would have revealed that the potential hire was posting confidential information about his or her current employer or about a customer? Or, what if the individual was posting racists comments? You might think twice about making that hire. On the other hand, what if you stumble across some protected class information? For example, what if you see a post about a recent medical diagnosis or that the individual is pregnant? If you decide not to hire the individual (for other lawful reasons, of course) and that individual challenges the decision, you’ve lost your ability to claim that you had no knowledge of the protected class status. 

I encourage clients to be thoughtful and deliberate about their approach to using social media and other technology related sources to screen out candidates. If you’re going to use social media, you should adopt a standard approach, whether that is for all positions or a limited subset, and apply it consistently. By doing so, your company will limit a candidate’s ability to argue that you chose to engage in social media sleuthing for discriminatory reasons. You should also consider limiting who conducts and has access to the information gathered through the social media sleuthing. Consider, at least initially, excluding the decision-makers from that process. In essence, social media sleuthing is really just another form of background checks. Assuming your company is handling those the correct way, consider adopting very similar procedures for social media sleuthing. One additional word of caution, though - accessing information that isn’t readily available to the public and by some means that is less than transparent (i.e. looking over the shoulder of an employee who is “friends” with the applicant to access information) is generally not advisable. 
What approach does your company take as it balances the pros and cons to accessing this information? I’d love to hear thoughts and ideas, so please comment below. 

Week in Review

As a follow up to our last Week in Review, wage and hour claims are still making headlines this week. Another technology company, SpaceX, has been sued for allegedly failing to provide employees with required breaks or to properly pay employees for “off the clock” work.  SpaceX also faces a separate lawsuit alleging that it failed to give former employees proper advance notice of their layoffs under California law.  Another big legal headline this week is the announcement that a federal judge has rejected a proposed $325 million settlement agreement between Apple, Google, Adobe, Intel and their employees over agreements between these companies not to recruit each other’s employees.  The judge found the settlement amount to be unreasonably low.  There is, however, also positive press for Google this week. You can read below to learn about Google's new, free tool to help teachers manage their classrooms - available just in time for back-to-school season.

Technology and the Workplace
Judge tosses Silicon Valley wage 'conspiracy' settlement as too low (The Washington Post)
Steve Jobs was 'central figure' in Silicon Valley's 'no poaching' case (CNN)
Musk's SpaceX sued for labor violations (CNN)
Do not force employees to work during FMLA leave (Ohio Employer's Law Blog)
Accusations Fly Between Uber and Lyft (NYTimes)

Technology and the Law
Judge bans live tweets by opposing counsel during deposition (ABA Journal)
Employers need policies in place to address domestic violence and stalking (ABA Journal)
German Minister Wants to Outlaw Late-Night Work Email (WSJ)
Proposed Google Glass Driving Bans Are 'Unenforceable', Says Professor (WSJ)
Consumer-Finance Regulator to Solicit Complaints About Bitcoin, Digital Cash (WSJ)

There's an App for That
Google Introduces Better Spam Filters to Combat Gmail Phishing (Mashable)
Can Wearable Technology Put a Dent in Parkinson's Disease (Mashable)
Google Wants to Save Our Schools - And Hook a New Generation of Users (WIRED)
Amazon Introduces a Card Reader (NY Times)
These Apps Help Keep You Productive and on Schedule (Yahoo)

Thursday, August 7, 2014

Week in Review

It’s been an interesting week on the wage and hour legal front. One of the big names in social networking, LinkedIn, made headlines this week when the U.S. Department of Labor announced a settlement of allegations that LinkedIn failed to properly record, account for, and pay certain employees for all of their hours worked. You can read the link below for lessons learned from this settlement. In other news, a federal judge ruled that critical federal government employees who worked during last year's government shutdown may be owed additional pay under the Fair Labor Standards Act, because they were not paid on regularly scheduled payroll dates, but, rather, when the shutdown ended. Speaking of paydays, there’s also a link below to information on how a new company allows hourly workers to immediately access pay they have earned, without having to wait for their employer's standard pay cycle and without paying a fee. With all this news, it’s a good time to check your wage and hour practices to stay safe out there!

Technology and the Workplace
LinkedIn settles with feds, agrees to pay nearly $6M in FLSA 'off the clock' and overtime case (ABA Journal)
LinkedIn's $6M FLSA settlement provides a good lesson to employers (Ohio Employer's Law Blog)
Picture This:  Online Photos and Big Data (Socially Aware Blog)
Retailers Who Take Bitcoin Love It (Mashable)
Lyft's Plan to Make On-Demand Carpools the Everyday Way to Commute (WIRED)

Technology and the Law
Should 'essential' federal employees receive additional shutdown pay?  (The Washington Post)
More Than 17,000 Join Privacy Lawsuit Against Facebook (Yahoo)
Judge Rules That Microsoft Must Turn Over Data Stored in Ireland (NYTimes)
Facebook users dial 911 over social network outage (Fortune)
Russian Hackers Amass Over A Billion Internet Passwords (NYTimes)

There's an App for That
Startup Offers Payday Advances Without the Pesky Loan-Sharking (WIRED)
NASA Tests Google Glass Underseas to See How It Would Work in Space (Mashable)
'Google Glass for Your Windshield' Focuses Your Eyes on the Road (Mashable)
LinkedIn Revs Up 'Social Selling' With Sales Navigator (Mashable)
Timex enters smart watch category.  No phone needed.  (USA Today)