Thursday, March 31, 2011

Employers Beware: The EEOC's Stance on Requiring Use of Technology in the Hiring Process


As I wrote about earlier this week, Campbell Mithun made waves last week when the Minneapolis-based advertising agency announced the selection of six summer interns recruited through a Twitter contest. Although few employers are bold enough to commit to making all of their new hires from social media, increasing numbers of employers are turning to the Internet and social networking sites to recruit employees. And why shouldn't they? Employers recognize the power of online tools to find and recruit the best possible candidates.

However, many employers may be surprised to learn that the U.S. Equal Employment Opportunity Commission takes the position that employers may violate discrimination laws when they require applicants to use technological application processes. As a part of its E-RACE Initiative (which stands for "Eradicating Race and Colorism in Employment"), the EEOC has brought several high-profile lawsuits against employers with policies that the agency believes lead to systemic discrimination in hiring. Although the E-RACE cases brought by the EEOC have so far focused on employer background check policies, the EEOC has announced its intent to pursue employers that require applicants to use video résumés or other technological application processes. According to the EEOC, these practices can lead to both intentional discrimination and “disproportionate exclusion of applicants of color who may not have access to broadband-equipped computers or video cameras.”

So what does the E-RACE Initiative mean for employers? Employers should, as always, avoid making decisions—or even the appearance of making decisions—on the basis of protected class status. To defend against the disparate impact claims anticipated by the EEOC, employers must also be able to show that the required or favored technological application process at issue was justified by "business necessity." For example, an advertising agency like Campbell Mithun would argue that the nature of the advertising business requires hiring interns with social media savvy. It might be difficult, however, for an employer like Campbell Mithun to demonstrate that business necessity required the use of technological application processes for hiring clerical or maintenance staff at the agency. As a result, the safest course for employers is to avoid requiring or favoring the use of technological application processes unless the process is closely related to the requirements of the job advertised and justified by legitimate and important business needs.

Wednesday, March 30, 2011

Supreme Court To Weigh In on the Application of the Ministerial Exception

On Monday, the United States Supreme Court agreed to hear yet another significant employment law case in its 2010-2011 term.  The case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, addresses the controversial ministerial exception to discrimination laws.

According to the school's petition (via SCOTUS blog), the question presented to the Supreme Court is:
[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
The Sixth Circuit Court of Appeals previously decided that the ministerial exception did not apply because of the primarily secular duties of the teacher.  The school appealed, and the Supreme Court is now asked to resolve the question for lower courts.

This promises to be an important case for religious employers.  We will continue to provide updates as the case progresses.

Tuesday, March 29, 2011

Technology, Law, and the Workplace: Week in Review

After a week out of the office, I am returning for duty at The Modern Workplace. And why not start the week off right with a Week in Review summary?

Given the material covered by this expanded summary, I won’t add my own spin on the news in the world of technology and labor and employment law. However, watch for an article later this week on hiring for technology jobs, one of the hot topics discussed below. This is an area where there seems to be a perfect storm of an expanding industry and increasing government interest.

Without further ado, your week in review!

Technology in the Workplace
Technology and the Law More Generally
Technology News
  • Is It a New Tech Bubble? Let’s See if It Pops (DealBook)
  • It’s Tracking Your Every Move and You May Not Even Know (NY Times)
  • Robo Cloud to Intercept Sun Over World Cup Qatar (Fast Company)
  • Facebook Booting “20,000” Underage Users Per Day: Reaction to Growing Privacy Concerns? (Fast Company)
  • Thinking Cap: “Mynd” Is the First Dry, iPhone-Compatible, Portable Brain Scanner (Fast Company)
  • Open Networking Foundation Pursues New Standards (NY Times)
  • China Tightens Censorship of Electronic Communications (NY Times)
  • Tumblr Stumbles Through Security Issues (Fast Company)
  • This is What An Exoskeletal Human Arm Looks Like (Fast Company)
  • James Gleick’s History of Information (NY Times Sunday Book Review)
  • Teaching to the Text Message (NY Times Op-Ed)
  • Don’t Call Me, I Won’t Call You (NY Times)
  • Telehealth Is Trending (Fast Company)

Friday, March 25, 2011

Clarification On Electronic Storage of Forms I-9

In an era of increasing worksite enforcement, many employers are turning to technology to assist in their compliance with immigration laws. For example, in recent years, new technology has emerged that allows employers to electronically store their Forms I-9. An electronic I-9 retention system may allow quicker completion, fewer mistakes, easier retrieval and a more accurate way to flag documents.

In July 2010, the Department of Homeland Security (DHS) finalized a regulation intended to provide more flexibility for employers to electronically sign and store I-9 forms. Until recently, employers were required to maintain paper I-9 forms for possible inspection by DHS and the U.S. Immigration and Customs Enforcement agency (ICE). In 2006, however, DHS adopted rules allowing electronic storage of I-9 employment verification forms. In practice, however, the rules were confusing and difficult for employers to apply. In response to comments received from the public, the new rule provides clarification and gives employers more flexibility.
Important information for employers regarding this new rule:
  • Completion of I-9 in 3 Business Days. Employers have three “business days” to complete Section 2 of the I-9 (the section where the employer reviews the new hire's documents and verifies the new hire's authorization to work).
  • Employers May Use Paper, Electronic I-9s or Both. Employers who want to implement an electronic I-9 system do not have to do so at all locations to comply with the electronic storage rule. Employers may use an electronic system at one location and maintain paper I-9 forms at another location.
  • Employers May Change Electronic Storage Systems. Employers can change from one storage system to another as technology evolves, as long as the new system complies with the system requirements set forth in the regulation.
  • Employers Need Not Maintain Audit Trails for Viewing Electronic I-9s. Although employers still must maintain audit trails for the creating, completing, updating, modifying, altering and correcting electronic I-9s, no audit trail is required when someone merely reviews the form.
  • Employers Must Provide Employees with a Transaction Record if Asked. Employers must provide an employee with a transaction record, such as a copy of the I-9 form, if requested by the employee.
For more information about the requirements for electronic storage of I-9 forms, refer to the USCIS Handbook for Employers at: http://www.uscis.gov/files/form/m-274.pdf.

Friday, March 18, 2011

Technology, Law, and the Workplace: Week in Review

It was another busy week in the world of technology and employment and labor law.  Mercifully, the Charlie Sheen uproar seems to have tapered off for the time being (although you can now watch his online rants on Ustream).  Perhaps even more shocking, Eric Meyer at The Employer Handbook reported on a sexting case that turned out surprisingly well for an unprepared employer (don’t expect to be so lucky if you repeat their mistakes).  Other stories from the week include a great summary of some of the wage and hour issues associated with telecommuting, updates in the WikiLeaks/Bank of America employee saga, and the impact of social media in the NFL labor negotiations.

But speaking of Charlie Sheen, stories about a student’s racist rant and the potential backfiring effects of social media serve as cautionary tales for employers.  Information security was also in the news, with articles about the threat of data theft over unsecured wireless networks and cyber terrorism.  As technology continues to evolve, employers should keep in mind that the law, while slow to change, is based on notions of reasonableness.  There are good legal reasons for employers to pay attention to developments in the tools available to prevent and monitor employee misconduct.

Technology in the Workplace
Technology and the Law More Generally
Technology News
  • Future Computer Chips Will Make More Mistakes (And That’s a Good Thing) (Fast Company)
  • Twitter Joins Facebook in Beefing Up Security, Foiling Hackers (Fast Company)
  • Robot Butlers Are Finally a Reality (Fast Company)
  • IBM Hopes Robots Will Keep Your Luggage From Getting Lost (Fast Company)
  • When the Marketing Reach of Social Media Backfires (NY Times)
  • U.C.L.A. Student’s Video Rant Against Asians Fuels Firestorm (NY Times)
  • Men’s Health says Minneapolis is the fourth most socially networked city (the line)
  • Robot Suits Transform Humans Into Super Strong Cyborgs (Fast Company)
  • Threats to Traveling Data (NY Times)
  • When Unrest Stirs, Bloggers Are Already in Place (NY Times)
  • Germany’s Cyber-War Intensifies (Fast Company)
  • Facebook Users Who Are Under Age Raise Concerns (NY Times)
  • Robokind Robots: They’re Just Like Us! (Fast Company)

Friday, March 11, 2011

Technology, Law, and the Workplace: Week in Review

The news this week in the world of labor and employment law and technology can be summed up in two words:  Charlie Sheen.  (I would have also accepted Tiger Blood.)  Our own Megan Anderson wrote about the fiasco and its lessons for employers about responding to negative statements on the Internet.  One day later, Sheen filed suit in California state court, alleging a variety of claims including—as Jon Hyman predicted—disability discrimination!

Although the news coverage (and, let’s be honest, your Facebook news feed) made it seem like Charlie Sheen was the only big news story this week, there were several other important news developments in the world of “The Next Big Thing.”  The NLRB stirred up controversy by briefly allowing and then pulling Google Ads from its website.  The blogosphere continues to buzz with support (and opposition) to unions, especially with the latest news that Wisconsin Governor Scott Walker has won the battle to strip public employees in Wisconsin of their collective bargaining rights.  The ‘viral’ spread of these stories illustrates how technology is reshaping not only the workplace, but also the world we live in. 

Technology in the Workplace
Technology and the Law More Generally
Technology News
  • CSI: Email—Unmasking Anonymous Messengers (Fast Company)
  • World’s First Bionic Eye Approved for Use in Europe (Fast Company)
  • Our Robot Overlords Will Walk Like US—And Among Us (Fast Company)
  • Using Phones, but Not to Talk or Surf (NY Times)
  • Drumbeat to E-Mail: The Medium and the Message (NY Times book review of James Gleick’s “The Information: A History, a Theory, a Flood.”)
  • Google Schools Its Algorithm (NY Times)
  • Internet traffic in Libya goes dark in apparent government shutdown amid upheaval (Associated Press via Star Tribune)
  • How Intel and GE Will Monitor Your Grandma—For Her Own Good (Fast Company)

Wednesday, March 9, 2011

Can We Learn Employment Law Lessons From the Hollywood Stars?

We increasingly live in an electronic world where entertainment news articles about movie and TV stars are featured adjacent to articles about important technology, political, legal, and world events. No star is in the limelight these days like Charlie Sheen, and his recent antics have the mainstream media telling us that Sheen can teach us a thing or two about how to conduct ourselves in the workplace in this increasingly electronic age.

This week, Charlie Sheen was fired from his hit TV show, and CNN.com posted an article stating that Sheen’s conduct demonstrates the perils of publicly bad-mouthing your boss, particularly online. To read the article, visit: http://articles.cnn.com/2011-03-07/living/cb.badmouthing.boss.sheen_1_facebook-page-charlie-sheen-boss?_s=PM:LIVING The article recounts numerous firings that have occurred based on an employee’s online complaints and suggests that employees should have constructive, private discussions with management about concerns rather than venting online.

While I personally agree that it shows poor judgment to publicly air your complaints online, the article on the CNN.com site does not address, in any detail, the legal risks that employers can face in disciplining or terminating an employee for online comments. Because of these risks, employers should consider maintaining a carefully drafted policy on employee’s online activities and use of social media. Employers should also proceed cautiously before taking negative action based on online postings. Some of the legal risks that employers may face and should address before acting include the following:
  • An employer that accesses an employee’s online postings could face privacy claims or claims under various electronic communications laws. Such risks should be smaller when an employer obtains data that is publicly accessible, such as through a public search engine like google.com, yahoo.com or an unrestricted social media site. If an employer searches on an online site with access restrictions - such as a social media site that the employee has restricted to only authorized “friends” - the employer should, however, consult with an attorney to ensure it accesses the restricted site through legitimate means. Employers should not access restricted sites in ways that might be found to be fraudulent, deceitful, or otherwise improper.
  • It should come as no surprise that not all data online is accurate and reliable. As such, employers should carefully consider and investigate the accuracy and reliability of online data before acting. To minimize the risk of defamation and privacy claims, employers should take care not to publicize false information about an employee and should keep personnel data and decisions as confidential as possible, sharing information on a need to know basis only for legitimate business reasons.
  • Before acting, employers need to consider whether an employee’s negative online posting may be legally protected in some way. If the employee is engaging in legally protected whistle-blowing, the employee may be insulated from any retaliation for the posting. In addition, some states have laws protecting an employee’s consumption of lawful consumable products outside of work (such as alcohol or tobacco) or laws that more broadly prohibit adverse action based on any lawful activity outside of work. Such laws may, depending on the circumstances, cover the online posting. Accessing an employee’s online postings may also cause the employer to gain access to other protected information about an employee that cannot be the basis for an employment decision, such as information about the employee’s gender, religion, age, race, national origin, disability, or other protected characteristics or activities.
  • An employer also needs to consider whether labor laws affect the employer’s ability to act. As briefly mentioned in the article on the CNN.com site, a recent firing of a Connecticut employee for online postings prompted the federal National Labor Relations Board (“NLRB”) to file a case against the employer. In the case, the NLRB maintained that the employer’s policy prohibiting online disparagement of the employer violated the employee’s collective organizing labor law rights. That case was recently settled, and the employer apparently agreed to amend its policy.
In many circumstances, discipline or termination for online postings will be entirely justified and lawful. Given the above risks, however, and the ever evolving legal landscape, employers should act carefully to ensure legal compliance and should keep current on trends, best practices, and legal developments related to online data.

Monday, March 7, 2011

Don’t Get Burned by the Cat’s Paw

You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the “cat’s paw” theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase “cat’s paw” stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, “cat’s paw” refers to a person who is unwittingly used to accomplish another’s purposes.

In Staub v. Proctor Hospital, No. 09-400 (March 1, 2011), the Supreme Court held, under the cat’s paw theory, that an employer can be liable for intentional discrimination even when the ultimate decision-maker acted without discriminatory intent. An employer will still be liable if the decision-maker’s decision was influenced by the underlying bias of a supervisory level employee who intended to and did cause the adverse decision to occur.
Staub involved a termination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employment discrimination based on military status. While the executive who fired the plaintiff did not personally have a discriminatory motive, the plaintiff produced evidence that his termination was caused, at least in part, by the recommendation of two lower level supervisors who were hostile about his absences for military service. Under the “cat’s paw” theory, the Supreme Court held that the defendant had violated USERRA, because the lower-level supervisors acted with discriminatory bias, intended Staub to be fired, and did, in fact, cause his termination. Without providing much helpful guidance to employers, the Court noted that an employer’s independent investigation may be a defense to cat’s paw liability if it results in the adverse decision being completely justified separate and apart from any underlying discriminatory bias or conduct.

The Staub ruling is sure to leave employers, employees, and their lawyers talking about cats and employment law for a long time to come. While Staub involved USERRA, its outcome will likely apply under Title VII (which prohibits race, sex, religious, and national origin discrimination) given the analogous language of the two statutes. In the wake of Staub, employers would be well-served to review their anti-discrimination measures and do the following:
  • Employers should maintain and enforce a comprehensive antidiscrimination policy that encourages and tells employees how to report discrimination.
  • Complaints of discrimination should be promptly and thoroughly investigated, and, if an investigation reveals discrimination, the employer should work with counsel to appropriately address the situation and ensure that any discrimination does not influence future decisions.
  • Employers should provide separate discrimination training to all supervisors on an ongoing basis to ensure they understand the scope of antidiscrimination laws and their unique obligation not to discriminate.
  • Employers should take the time to engage in written, progressive discipline as performance problems arise. Accurate, timely documentation that is independently reviewed and verified before being issued can greatly assist employers in establishing that a decision is legitimate and nondiscriminatory.
  • Employers should ensure that decision-makers do not blindly rely on and rubber-stamp the recommendations of others when making adverse decisions. Before acting, the decision-maker should investigate the facts, including the entire chain of events leading to the potential decision. The decision-maker should be confident that he or she is acting on complete and accurate information, that the adverse action is entirely justified, and that any adverse decision is not based on the discriminatory bias or conduct of any employee influencing the decision.

Friday, March 4, 2011

Technology, Law, and the Workplace: Week in Review

This week, the technology world was abuzz with the announcement (and, of course, pre-announcement rumors) of the iPad 2. Apple’s newest contribution to the tablet market promises to provide further steam to the mobile computing movement.
Fittingly, a number of blogs and articles this week discussed the impact of mobile computing devices on the workplace. Sexting, of course, remains a serious problem. In an amazing turnaround, many employers and even the U.S. Army are now encouraging employees to blog. One article even talks about online tools for women to report harassment they experience on business trips!

Finally, in a piece of news for those who share my fascination for The Next Big Thing, the Workplace Prof Blog announced this week the American Bar Association’s National Symposium on Technology in Labor and Employment Law. The conference will be held at New York University School of Law from April 27 to 29, 2011, and includes a number of fascinating and forward-thinking panels. I will be speaking on a panel with the especially provocative title “Electronic Invasion of the Workplace: the Good, the Bad and the Aural?” I am honored and excited to be a part of this great conference, and will make sure to post the conference materials as soon as they are available.

Technology in the Workplace
Technology and the Law More Generally
Technology News
  • Meet Elfoid, the Smartphone Pocket Robot (Fast Company)
  • Israel and Palestine Flip Mideast Protest Script, Govern via Facebook (Fast Company)
  • PlugBot Attacks the Future of IT Security (Tech{dot}MN)
  • Skype Opens a Conference Call Service (Bits)
  • Lenovo’s Laptops Are First to Have Eye-Control Ability (Fast Company)
  • Facebook Facelifts Its Privacy Policy (Gadgetwise)
  • Apps to Explode to $38 Billion Market by 2015 (Fast Company)
  • How Hackers Could Exploit Federal Government Shutdown (Fast Company)
  • A Patrol for the Web’s Playgrounds (NY Times)
  • What Egypt’s revolution tells us about the nature of social media (SmartBlog on Social Media)
  • Rise of Neurocinema: How Hollywood Studios Harness Your Brainwaves to Win Oscars (Fast Company)

Social Sleuthing: Look Before You Leap

In my last post, I cautioned employers about using information that it learns about its employees through social networking sites. A few more thoughts on that. With employees posting running accounts of their daily activities on social networking sites, it’s quite tempting for employers to want to take a peek at what employees are saying about how they are spending their work day or what they’re doing on a day when they are supposedly missing work because of an illness or injury. It’s even more tempting for employers to want access to this information when the employee in question has been a problem employee (i.e. low productivity, many last minute absences, frequently “sick” on Friday afternoons or beautiful summer days . . . ).

Although this information may in fact be relevant and helpful to employers, how do employers access this information? If you’re trying to obtain the information after the fact, say when you’re in the midst of litigation, the answer’s pretty simple - you obtain the information through discovery requests. In most cases, though, you’re going to want to get your hands on this information while the events are occurring and use it to justify adverse action against the employee in question.

That leaves the employer with a few options: have someone in management “friend” the employee, ask an employee who is already a “friend” with the employee in question to allow you to have access to his or her account, or ask an employee with “friend” status to print a screen shot of the relevant information. All options pose their own set of problems, although I think the last option might pose the least risk to the company.

The first option, having a management employee obtain “friend” status, could result in the company learning information that could result in future claims of discrimination or retaliation. For example, the management employee reads about the employee’s mother’s recent cancer diagnosis (potentially genetic information protected under GINA) or about the employee’s recent conversion to Islam. Shortly thereafter, the employee suffers an adverse employment action (completely unrelated, of course). The documentation supporting the adverse employment action is weak. The employee subsequently files a charge of discrimination. Although the employee may have difficulty showing a causal link between the protected class information and the adverse action, given the time and expense involved in defending a charge or lawsuit, I’m sure your company would just as soon avoid the situation altogether. Given the risks, it’s at least worth considering whether your company should adopt a policy that prohibits supervisors from being social network “friends” with subordinates.

As you may have seen from news and commentary, the second option, asking an employee with “friend” status to let you log in as that individual, may result in legal claims as well. The employee with “friend” status might argue that they felt coerced into allowing you access, creating a claim for the employee under the Stored Communications Act (“SCA”). Even if that isn’t the case (the individual volunteered to give you access), there is still risk to the company. Just as in the first option, the employer might find itself obtaining a lot more information (either about the targeted employee or the individual who gave the employer access) then it set out to obtain, some of it protected class related – potentially resulting in a discrimination claim. The employer might also find itself trying to defend against an invasion of privacy claim. The employee who granted you access to her account might later claim that you went beyond the intended scope and invaded her privacy. The target employee might claim that the information that you accessed was private (password protected and limited to certain preapproved individuals) and that you invaded his privacy and violated the SCA.

The third option is just a slight variation of the second option. By getting a print out of the post at issue, the employer will significantly reduce the risk that it will have to defend against a viable claim of discrimination or invasion of privacy by the employee with “friend” status because it wouldn’t have accessed that employee’s personal posts. This option would also reduce the risk that the employer would obtain unwanted protected class information about the targeted employee because the access is limited. Of course, in order for this option to work, you’re relying on the fact that the employee with “friend” status either came forward with the information or would be willing to look around for it. Not sure how likely it will be that you’ll find such a cooperative employee.

Some closing thoughts. Although this area of law is still developing, the outcome will certainly depend on specific facts and circumstances of the situation. Before employers embark on this information-gathering technique they should think carefully about whether the benefits from obtaining the information really outweigh the potential risks. Employers should also be cautious about how much they rely on this type of information when making adverse employment decisions. It’s certainly possible that an individual with an axe to grind could hack into the targeted employee’s social network account or even set up a dummy account.

Tuesday, March 1, 2011

Sick and Tired of Employees Abusing Sick Days—What’s an Employer to Do?

One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governor’s proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting question—what is an employer to do when it suspects that an employee is faking an injury or illness in order to miss work? Well, that depends on a few key things.
First, does the company’s handbook require an absent employee to provide medical certification of an absence for medical reasons? Although under certain circumstances an employer might require medical certification absent such a policy, it is best if the handbook expressly permits the employer to request medical certification. In many cases, this will eliminate fraudulent use of sick leave because the employee will actually need to obtain medical certification of their need for the absence. A word of caution: in order to avoid discrimination claims, employers should be careful to be consistent in their enforcement of a policy or practice that requires absent employees to provide medical certification.
Second, are there any other contracts that might govern an employee’s use of sick time (i.e. union contracts or employment contracts) and, if so, what do those policies say about requiring medical certification of an absence for medical reasons? As with the handbook policy, the employer will need to abide by the language in the contract and should be consistent in how it approaches these situations.
Third, might the absence qualify the individual for FMLA leave or has the absent employee previously qualified for FMLA leave? If the employee hasn’t already qualified for FMLA leave, the employer may require the employee to provide certification from a health care provider. The FMLA also permits an employer to require second or third medical opinions (at the employer's expense) and periodic recertification of a serious health condition. The rules around how often and under what circumstances an employer can require recertification are pretty detailed, so employers should proceed with caution. Also, if an employer wants to authenticate or clarify the medical certification, the employer may use a health care provider, a human resource professional, a leave administrator, or a management official – but not the employee’s direct supervisor.
If the employee is unable to provide medical certification supporting the absence, the employer can generally treat the absence as unexcused and, consistent with the employer’s handbook policies and any other contracts that govern the relationship, the employer can discipline the employee. If, as may be the case with the Wisconsin protestors, the employee provides medical certification, but the employer questions the authenticity of the certification, the employer could attempt to show that the certification was fabricated (this may be very difficult to do) or that it was based on false information. For example, if the employee’s medical certification stated that the employee had to miss work because he was on bed rest and the employee posted on Facebook that he had his best round of golf ever on that same day, then the employer may be able to take action. More words of caution: due to concerns about invasion of privacy and federal Stored Communications Act claims, employers need to be careful about how they obtain this kind of information. Also, employers should be aware that there are certain medical conditions that might excuse an employee from missing work, but allow an employee to engage in other activities outside of their home. Many traps for the unwary!