Friday, January 27, 2012

Criminal Background Policy Lands Pepsi in Hot Water

Earlier this month, Pepsi Beverage Co. entered into a conciliation agreement with the Equal Employment Opportunity Commission in which the company agreed to pay $3.13 million and offer employment to 300 black applicants who were denied employment because of the company’s background investigation policies.  The case has received media attention, but much of it appears to simply be a reminder of the pitfalls of requesting information about an applicant’s arrest records.  Pepsi’s policy of inquiring into arrest records was ill advised, but it’s worth noting that the practice of excluding applicants with convictions, even for minor offenses, was equally problematic in the EEOC’s eyes.

Given our nation’s arrest, conviction, and prison population demographics as compared with the general population, it is very clear that hiring policies which exclude applicants because of conviction records have the greatest impact on minority applicants.  Excluding an applicant because of a previous conviction is lawful, but only if the employer can demonstrate that the prior conviction is job related and that the exclusion is consistent with business necessity.  While discrimination issues stemming from criminal conviction status have not received much attention in the past, the EEOC’s E-RACE (Eradicating Racism and Colorism from Employment) Initiative, now underway, is intended to bring them into focus.  Pepsi is likely to be one of the first among many businesses that will face claims because of their hiring decisions involving ex-offender applicants.

So what constitutes a “business necessity” that allows an employer to exclude applicants on the basis of conviction records?  According to the EEOC, three factors determine whether an employer’s decision was justified by business necessity:

(1) The nature and gravity of the offense or offenses;
(2) The time that has passed since the conviction and/or completion of the sentences; and
(3) The nature of the job held or sought.

Employers who seek to exclude applicants based on conviction records should be able to articulate why the past offense(s) are relevant to the job and also should be able to point to an aspect of the job that presents a special risk of harm.  As to the length of time that has passed since conviction/completion of sentence, a recent EEOC staff opinion letter suggested that the employer should not consider convictions more than 7 years old. 

Given these developments, employers should review their policies and practices to make sure that their treatment of conviction records makes sense and complies with EEOC regulations.

Week in Review

This week privacy and technology collide once again.  On Monday the Supreme Court unanimously ruled that the use of a GPS tracking device placed on a suspect's car constituted a search under the Fourth Amendment.  The FBI indirectly announced plans to monitor social networks when it requested information from contractors who might want to build the monitoring system.  But perhaps the largest privacy concerns this week have come from Facebook's announcement that its Timeline format will soon be mandatory.  So once you finish reading the links below, get a plan in place to clean up your Facebook past.

Technology and the Law
Justices Say GPS Tracker Violated Privacy Rights (NYTimes)
Supreme Court Rules that Telemarketers Can Be Sued in Federal Court (ConsumerAffairs)
FBI Releases Plans to Monitor Social Networks (NewScientist)
Motorolla Sues Apple over iPhone 4S, iCloud (WSJ)

Technology and the Workplace
Facebook Timeline Becomes Mandatory, Poses Risk for Employers, Job Seekers
(smartcompany)  (msnbc)
Bridging the Gap Between the CMO and CIO (FastCo)
Is It a Bad Idea to Friend Co-workers on Facebook? How About Your Boss? (Time)
Workers Get PC Gear from Vending Machines (Businessweek)

There's an App for That
Real Bonding with Family Around the TV Using Skype (WSJ)
Photo Archive App Shoebox Fills In Your Facebook Timeline, Starting At Birth (FastCo)
Kids Won't Do Their Chores?  There's an App (or Two) for That (cnet) (FederalNewsRadio)

Friday, January 20, 2012

Week in Review

This week was nothing short of historic in the context of technology and the law. Wikipedia, Google, and others blacked out or censored their sites in protest of anti-piracy bills in the House and Senate.  Apple unveiled technology that could change the world of education.  Facebook introduced new apps that help users share even more information about themselves - yes, apparently it is possible. 

Technology and the Law
Internet Blackout Causes 18 Senators to Flee from PIPA (Forbes) (NYTimes) (FastCo)
U.S. Shuts Down MegaUpload, Charges Kim Dotcom, 6 Others with Piracy (Forbes) (WSJ)
Judge Says Defendant's Facebook Post Didn't Influence Her Sentencing Decision (ABAJournal)

Technology and the Workplace
Commercial Driver Hand-Held Cell Phone Ban Takes Effect (EmployerLawReport)
Judge Rules LinkedIn Connections Do Not Qualify as Trade Secrets (WSJ)
HP and Apple Compete to Provide Tablets in the Workplace (FastCo)
Massachusetts State Senate Recommends Passage of Bill Providing Leave to Victims of Domestic Violence (MintzLevin)
"Black Swan" Unpaid Interns Raising Legal Issues (OvertimeAdvisor)

There's an App for That
Apple Unveils App and Tools for Digital Textbooks (NYTimes)
More Sharing Comes to Facebook with New Apps (ABC News)
Before Tearing Out a Wall, Check Your Phone (NYTimes)
Helping Students Battle College Debt with a Facebook App (FastCo)

Wednesday, January 18, 2012

Pre-Eligibility Notice of the Need for Leave May Be Protected Under the FMLA

Last week, the Eleventh Circuit Court of Appeals held that a former employee can pursue her FMLA claims against her former employer even though she failed to meet eligibility requirements under the FMLA at the time she was terminated.  In Pereda v. Brookdale Senior Living Communities, Inc., an employee gave advance notice that she would need FMLA leave because of her pregnancy.  Shortly thereafter, the employee was put on a performance improvement plan and then terminated.  The employee brought suit, claiming that her former employer had interfered with her FMLA rights and retaliated against her.

When the employee made her request for leave, she did not yet meet eligibility requirements under the FMLA.  In defending against the lawsuit, the employer argued that the employee could not state a claim under the FMLA because she was not eligible for FMLA leave when the alleged interference and retaliation took place.  The parties did not dispute, however, that the employee would have met the FMLA eligibility requirements by the time she took her requested leave.  The Eleventh Circuit ruled that because the FMLA requires employees to provide notice in advance of their need for FMLA leave, they should be protected once the notice is given and before (as well as during) their leave.  The Court said that the employee engaged in protected activity under the FMLA when she made a pre-eligible request for post-eligible leave. 

This particular issue has not been addressed by other circuit courts, such as the Eighth Circuit, which includes Minnesota.  The Eleventh Circuit’s decision in Pereda is only binding on the states in that circuit.  Even so, other courts may look to this decision if faced with similar claims.  So what’s the takeaway for employers?  When analyzing potential risks involved in terminating an employee, it’s important to consider whether the employee has made a request for future FMLA leave, even if he or she isn’t yet eligible for leave.  If a request for future leave has been made and the employee would be eligible for the leave but for the termination that’s being considered, it is critical to make sure that the termination is not motivated by or connected to the requested leave or the condition or occurrence that necessitates the leave.

Friday, January 13, 2012

Week in Review (New Year's Edition)

This week, instead of looking back, we look ahead to the new year. We certainly expect fascinating court decisions about technology and the workplace.  Employers and employees are keeping in line with the New Year’s theme of self-improvement by using technology to make themselves and their workplace more efficient.  And new technology is helping individuals achieve their 2012 goals, from weight loss to learning a musical instrument.  So click away and be inspired to make 2012 the best yet.

Technology and the Law
Can a Court Make You Give Up Your Password? (ABC News)
New Fight Breaks Out Over Digital Rights to Old Books (WSJ)
Americans Take to the Web to Fight Proposed Legislation (Forbes)
Google's New 'Search Plus Your World' Faces Privacy Issues (LA Times) and Antitrust Concerns (NYTimes)
Blawg Tracks Circuit Splits in Search of Issues Bound for Supreme Court (LawSites)

Technology and the Workplace
How to Work From Home Like You Mean It (FastCo)
Can Natural Light Make Employees More Productive? (FastCo)
When an Employer Posts to Employee's Facebook and Twitter Accounts Bad Things Happen (DelawareEmployment)

There’s an App for That
GymPact App Makes Workout Skippers Pay Up (ABC News)
With Enough Bandwidth, Many Join the Band (NYTimes)
Camera Makers Fight Back With Smart Devices (Forbes)

Thursday, January 12, 2012

Are Your Employees Too Linked In?

Employee use of social media tools, such as an actively managed professional profile on LinkedIn, can be quite beneficial to the business interests of an employer.  As with many work-related innovations, however, sometimes there can be too much of a good thing.  Social media tools can be vehicles for serious harm to employers.  In particular, the use of social media sites by employees can lead to disclosure of a company’s confidential business information, and may also provide significant opportunities for unlawful competition by employees.  These very real threats to an employer’s business are another reason for employers to have policies that specifically address permitted use of social media sites such as LinkedIn and to consistently monitor compliance with relevant policies.

As we have previously discussed here, threats  to the protection of confidential and trade secret information are presented by the commonplace use and exchange of information via the Internet.  An interesting twist on that concept shows up in a lawsuit resolved about a year ago.

The lawsuit involved employees who were sued by their former employer for unlawful competition and the improper taking of confidential information. 

The employer’s suit asserted that the employees’ post-termination activities and contacts with customers through LinkedIn was unlawful competition. The employees countered that their use of LinkedIn and the creation of contacts it involved had been encouraged by their former employer and, even post-termination, was routine and permissible social networking.

The employer also complained that the employees had taken and used confidential business information.  The employees responded that the disputed information was not confidential under the law because it had been routinely disclosed through authorized LinkedIn communications between employees and their contacts.

This lawsuit provides a concrete example of the importance of employers’ policies on social media use.  It also underscores the need for employers to monitor and enforce their policies. If employers do not provide clear direction to employees about what can be disclosed and when disclosure is appropriate, they risk both inappropriate disclosure and the ability to restrict future unlawful competition.

Tuesday, January 10, 2012

Twitter Dispute Offers Lessons for Employers

A recent article in the New York Times highlights an interesting lawsuit about a Twitter account. The lawsuit deals with legal and practical issues of interest to employers whose employees engage in social media on the employer’s behalf.
As reported by the Times, Noah Kravits, an employee of PhoneDog Media L.L.C., and its mobile phone website called, opened a Twitter account and began regularly tweeting under the name “Phonedog_Noah.”  The company sells phones and related items and also posts articles and commentary.
After the “Phonedog_Noah” account amassed 17,000 followers, Kravitz quit his job at  According to Kravitz, when he quit he was told by the company that he could keep his Twitter account in exchange for “tweet[ing] on the [company’s] behalf from time to time . . . .”
The company apparently wants to take over the account and believes it has a proprietary interest in the account and its followers.  It has filed suit in a California federal court seeking roughly $340,000 in damages from Kravitz.  It issued a statement to the Times, stating:   
The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.
Kravitz believes the suit was filed in retaliation for his claim to advertising revenue based on an alleged ownership interest in the company.  Regardless, the lawsuit is instructive for other companies attempting to engage in social media.
As more employers engage in social media efforts, it’s important that they adapt contracts, policies and procedures to fit those new activities.  Most employers know that they must vigorously protect valuable intellectual property and their brand identity, such as inventions, copyrights, trademarks, and trade secrets.  Similar protective measures should be applied to the activities of employees engaging in social media. 
When an employee engages in social media efforts on behalf of an employer, it’s important to establish and maintain clear boundaries and agreements relating to the ownership of accounts and use of company information or intellectual property.  It’s also important to clarify when the employee—particularly an employee that is not exempt from overtime requirements under wage and hour laws—is or should be posting and tweeting on behalf of the company and when he or she is engaging in personal activity.     
These situations are likely to arise more frequently.  A little care on the front end and thoughtfully adapting well-known principles should help prevent unnecessary disputes.

Wednesday, January 4, 2012

Commercial Drivers and Cell Phones – Watch Out for the New Regulations

If the large numbers of crashes by distracted drivers is not enough, companies that employ drivers of commercial motor vehicles (CMVs) have one more reason to prohibit the use of cellular telephones by drivers while driving:  The United States Department of Transportation recently announced the issuance of the final rule that prohibits commercial drivers from using hand-held mobile telephones while operating their vehicles. 

The final rule, issued jointly by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA), took effect January 3, 2012.   The rule restricts CMV drivers from holding mobile telephones to conduct voice communication, dialing a mobile telephone by pressing more than a single button, or reaching for a mobile phone in an unacceptable and unsafe manner.  As a result, a driver of a CMV who desires to use a mobile phone while driving will need to use a compliant mobile telephone (such as a hands-free device) located in close proximity to the driver.

Of importance to employers is the fact that the rule provides stiff penalties for both drivers and companies that allow their drivers to use hand-held mobile telephones while driving. A violation of the rule will be added to the list of violations that can result in a driver being disqualified from holding a commercial driver’s license. A driver who has a number of serious violations in a three year period can be disqualified from holding a license for 6 months, 12 months, or even lifetime.  In addition, companies that allow their drivers to use mobile telephones in violation of the rule will face up to a maximum penalty of $11,000.

Tuesday, January 3, 2012

NLRB Again Postpones Deadline for Posting Notice of Collective Bargaining Rights

Among other developments at the National Labor Relations Board (NLRB), as it prepared for another period of inertia brought on by lack of a quorum, the agency announced near the end of last month that it has agreed to postpone the effective date of its employee rights notice-posting rule.  The postponement is at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the rule. We have previously written about the new NLRB rule requiring employers to post a notice of collective bargaining rights along with their other workplace postings. April 30, 2012, is the new deadline for employers to post a Notice of Collective Bargaining Rights now required by a rule of the NLRB.

The NLRB had originally set November 2011 as the deadline for employers to get the new poster up, and then postponed that to January 31, 2012, explaining that the delay was to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.  The agency acted, it said, to ensure broad voluntary compliance, because many private employers don’t know whether the notice-posting requirement applies to them.  

Several federal lawsuits have been filed seeking to block implementation of the new rule, including suits by the National Association of Manufacturers (NAM) and the National Federation of Independent Business. NAM’s suit asks the federal court to issue an order and judgment declaring that the NLRB exceeded its authority by promulgating the posting rule. The Board’s late December ruling states that it has determined that postponing the effective date of the rule will facilitate the resolution of the legal challenges.

Employers covered by the National Labor Relations Act (NLRA), which means both union and non-union employers who fall within the jurisdiction of the NLRB and includes almost all private sector employers, must now post the Notice in their workplaces no later than April 30, 2012. The official Notice released by the NLRB is available for download here. The Notice may be printed in color or black-and-white.  There is no penalty for posting the Notice earlier than the deadline.

A fact sheet with further information about the Notice posting rule is available here. Among the facts highlighted in the NLRB fact sheet is a reminder that federal labor law rights under the NLRA apply to union and non-union workplaces alike.  Most significantly, the rights set out in the Notice include the rights of employees to “form, join, or assist labor” unions and to engage in “concerted activity” related to their employment. Concerted activity is a very broad concept under the labor law. Such activity occurs whenever two or more employees are acting together anywhere, in virtually any way, to communicate with each other, their employer, or the public about workplace terms and conditions. The NLRB has made clear its position that protected concerted activity may occur over social media, and that employers violate the law and commit unfair labor practice if they interfere with such activity.