Friday, March 30, 2012

Week in Review

Earlier this week, Sam Diehl wrote a posting, titled "Gimme Your Password," about employers' practices of requiring applicants or employees to hand over their social media passwords.  As the week progressed, discussion of the issue extended beyond legal and HR departments.  The media, Congress, and even Facebook itself joined in the dialogue.  And as if Facebook wasn't stirring up enough controversy, a new app lets you create enemies rather than friends.  

Technology and the Workplace
Facebook Password Amendment Rejected by Congress (PCWorld) (CBSNews)
Facebook to Employers: Don't Demand Passwords (NPR) (Forbes)
The Security, Privacy and Legal Implications of BYOD (Bring Your Own Device) (InformationLawGroup)
Union Sues Stop & Shop over Social Media Policy (Reuters)

Technology and the Law
Hey, Judges: Facebook Isn't the Devil; It's the New Gossip (Businessweek)
Police Manhunt Goes Social (SydneyMorningHerald)
Elderly Couple Flees Home, Hires Lawyer After Spike Lee Retweets Wrong Zimmerman Address (ABAJournal)

There's an App for That
Forget Friends; New App Makes Facebook 'Enemies' (abcNews)
Tracking Major League Baseball, a Perfect Sport for an App (NYTimes)
A Deservedly Smug iPhone Photo App (NYTimes)

Monday, March 26, 2012

Gimme Your Password

The Associated Press reports that employers are increasingly asking applicants to provide their Facebook usernames and passwords during the hiring process.  While this practice may not yet be common, it’s interesting that a significant number of employers believe information available on an applicant’s semi-private Facebook page will be helpful in their hiring decisions.

From a legal perspective, it’s unclear whether this employer practice, standing alone, violates any legal rights.  If the practice becomes widespread, however, employees’ lawyers may want to challenge the practice by using existing common law claims, such as claims for invasion of privacy.  Alternatively, existing statutory claims may offer a legal basis for claims.  For example, viewing an applicant’s pictures from a night on the town might create the risk of a claim under Minnesota’s prohibition against employment decisions based on the “use or enjoyment of lawful consumable products.”  One could also easily see plaintiffs’ lawyers creatively using the practice of viewing social media postings—public or private—to advance discrimination claims (see a New York Times article on a lawsuit involving the University of Kentucky here). 

It’s also possible that state and federal lawmakers will introduce legislation to prohibit or control employers’ ability to ask for or use personal social media-based information. Employers should keep watch for such legislative initiatives.

Practically speaking, it seems unlikely, except in certain limited circumstances, that viewing information about an applicant that is wholly or partially hidden from public view behind privacy barriers is really necessary to make a hiring decision.  Employers’ processes for screening applicants, checking references, and conducting background checks should suffice.  If they don’t, it is likely that more will be accomplished by improving the applicant screening process than by looking at Facebook.  While not without risks (see UK lawsuit), a better case can be made for viewing an applicant’s public social media profile.  If an applicant’s public profile reveals embarrassing information, it may indicate that the applicant has poor judgment or lacks an appropriate level of professionalism.

Friday, March 23, 2012

Week in Review

This week we have six articles involving social media.  Fittingly, one of them asks whether we are all making too much of social media's impact on the workplace.  Serving as an example of social media's impact, a recent survey shows that nearly half of employers conduct social media background checks.  And a New York Times article provides an interesting look at the unique considerations on Wall Street concerning employees' use of social media.

Technology and the Workplace
Is Too Much Being Made of Social Media's Impact on the Workplace? (Conn.EmploymentLawBlog)
Survey Shows 48% of Employers Conduct Social Media Background Checks (employeescreenIQ)
On Wall St., Keeping a Tight Rein on Twitter (NYTimes)
Supreme Court Holds that States Are Immune from Suit for FMLA Violations Related to Self-Care (WorkplaceProfBlog) (FMLA Insights

Technology and the Law
Is Facebook Part of Your Estate? New Laws Debated (TIME)
Veteran Convicted of Threatening Judge on YouTube Now in Trouble over Tweets (ABAJournal)
Counterterrorism Officials to Hold Data on Citizens for Up to Five Years Under New Guidelines(ABAJournal)

There's an App for That
New Facebook App Lets Voters 'Cosponsor' Bills in Congress (ABCNews)
Netflix App Brings Higher-Quality Images to New iPad (WashingtonPost)
New App Aims to Help You Avoid Ticket, Car Theft (Seattlepi)

Thursday, March 22, 2012

Employees Fired for Wearing Orange?

Even non-union employers need to be careful about their labor law obligations.  Most readers have either given or heard this advice multiple times, but labor law risks are still sometimes overlooked.    As an example, in one of the strangest employment-related news stories of the week, a Florida law firm  reportedly fired 14 employees because they wore orange to work on a Friday.  According to the news report, the law firm called the employees into a conference room and an executive accused them of engaging in a protest.  An employee explained that they were not engaged in a protest, but simply had a tradition of wearing orange on payday Fridays in anticipation of going out for happy hour.  Despite the explanation, and despite the fact that there was no policy against wearing orange and no employee had ever been warned or disciplined for wearing orange, all fourteen employees were fired.

While it’s unclear from the facts articulated in the news story whether a labor law violation was committed, I suspect that this employer will soon receive an unfair labor practice charge.   Even non-unionized employees have a right under the National Labor Relations Act to engage in protected concerted activity.  The employees’ decision to wear orange on the same day is certainly “concerted” activity, so it may be protected by the NLRA.  Whether these employees engaged in protected concerted activity is the more difficult question.   Employees’ activities are generally protected when they work together to improve working conditions.   If the employees had actually been engaged in a protest about their working conditions, firing them for that reason would have been a violation of the NLRA.  Here, there apparently was no protest, so the question is whether it would be a violation of the NLRA to fire employees who the employer thinks are engaged in a protest about working conditions, even if they are not.   The NLRB has held, and the D.C. Circuit has confirmed,  that an employer violates the NLRA when it takes adverse action against an employee because of a mistaken belief that the employee engaged in protected concerted activity.

Non-union and union employers alike who violate the NLRA can be required to pay back pay, and awards can be significant.  If the law firm in this story is found to have violated the NLRA, it will likely be ordered to reinstate all the employees and will be subject to other penalties as well. 

I wouldn’t be surprised if this law firm faced other legal claims, in addition to an unfair labor practice charge.  While we don’t know all the facts and circumstances, I would guess that the decision to terminate the employees in this case was not preceded by careful consultation with HR or employment law counsel.  Careful consideration of a termination decision is always well advised, and often helps to prevent a costly legal claim or a decision that a business might later regret.

Tuesday, March 20, 2012

Will Unpaid Internships Be the Focus of the Next Wave of Wage and Hour Class Actions?

Last month, my colleague Kathryn Nash wrote about the dangers when employers, particularly for-profit companies, offer unpaid internships.  This is a legal issue that has been around for quite some time, but for some reason – maybe because the risks of getting caught had not seemed very high – many companies continue to hire unpaid interns.  (For a funny take on unpaid internships, check out the "Stuff White People Like" blog entry #105.)

Well, the stakes for companies using unpaid interns have just gotten higher.  Last Wednesday, an intern filed a wage and hour claim against Charlie Rose and the production company that produces his PBS talk show, seeking class action status.  This follows a wage and hour lawsuit filed in February by a former unpaid intern who worked for Harper’s Bazaar.  That claim was made against the magazine’s publisher, Hearst Corporation, and the plaintiff sought class action status.  Last fall, another lawsuit was filed by two interns who worked at Fox Searchlight Pictures and claimed they were not paid for their work on the movie “Black Swan.”

These recent cases make me wonder if unpaid internships are going to create the next wave of state class action and federal FLSA collective action lawsuits.  While that remains to be seen, given the expenses of defending against class or collective wage and hour claims (employers can be required to pay unpaid wages, liquidated damages, and attorneys’ fees), employers who use unpaid interns should closely examine their internship programs with the assistance of legal counsel.  The U.S. Department of Labor (DOL) has published a Fact Sheet with strict guidelines for for-profit companies that offer unpaid internships.  While nonprofit organizations organized for religious, charitable, civic, or humanitarian purposes are granted more leeway to use unpaid interns as volunteers, those organizations are also well-advised to work proactively with legal counsel on their unpaid internship programs to ensure that such programs are consistent with the law and minimize legal risk. 

Internships can benefit both employers and interns, but employers should keep in mind that it is far less costly to pay minimum wage in the first place than to be stuck with a class action lawsuit at a later date.

Friday, March 16, 2012

Week in Review

This week, technology came with a cost, causing employers to face liability and employees to face job-loss.  A California court held an employer liable for employees' harassing off-duty blog posts.  A North Carolina steakhouse fired a waiter after he posted a photo online showing a generous tip left by Peyton Manning.  A Minnesota school also faces liability for forcing a student to surrender her Facebook password.

Technology and the Workplace
Off-Duty Blogging Creates Employer Harassment Liability (LawfficeSpace)
Steakhouse Waiter Fired for Showing the World What a Great Tipper Peyton Manning Is (DeadSpin)
Employees' Use of Facebook Biggest Time-Suck, According to Recent Survey (OhioEmployer'sLawBlog)
Lenses to Ease Strain from Staring at Screens (NYTimes)

Technology and the Law
Lawsuit Ensues After Minnesota Girl Was Forced to Give Up Her Facebook Password (HuffingtonPost)
Class Action Says Social Network, Game Apps Take Smartphone Info Without Permission (ABAJournal)
$1.5 Million Settlement of First HIPPA Enforcement Action Resulting from HITECH Breach Notification Rule (SecurityPrivacyandtheLaw)
Will the Pinterest "Nopin" Tag Put Online Image Owners on the Defensive on Implied Copyright Licenses? (NewMedia&TechnologyBlog)

There's an App for That
10 Apps to Download for Your New iPad Retina Display (Wired)
Achieving a Runner's High With a Little Data Help (NYTimes)
New App Available in the Fight Against Colon Cancer (MarketWatch)
The CW Launches Mobile App (

Wednesday, March 14, 2012

Here’s A Tip: Employees Need Guidance on Social Media

If you know anything at all about the NFL, you know that Peyton Manning is one of the league’s great quarterbacks. What you may not know about Peyton is that he’s a very generous tipper. Jon, a (former) server at the Angus Barn in Raleigh, NC, wanted the world to know. (Deadspin has the story here). Courtesy of Jon, a photo of Manning’s restaurant receipt, showing an extremely generous tip, made it online. And now Jon, who obviously didn’t think before he posted, provides a good example of why employers should educate employees on social media use—and consequences.
Employees often fail to make a connection between social media use on their own time and possible ramifications in the workplace. In training employees on social media policies, I try to help them understand that personal use of social media is not the same as private use. What you post online is broadcast to the world. If you identify where you work, everything else you broadcast to the world is connected to your employer. So, for example, if an employee posts discriminatory remarks or says nasty things about a coworker online, it’s as if the employee is making discriminatory remarks or saying nasty things about a coworker in the office. In both cases, the employer may have a legal obligation to deal with the situation.
Setting potential legal liability aside, risks remain when employees post business information that they shouldn’t. Jon may have assumed that what he was doing was harmless, and some may argue that there’s a difference between posting something nice and posting something nasty. But if Peyton has a problem with the post, he’s going to take it up with the restaurant, not with Jon. The Angus Barn may not have a legal obligation to keep its customer information private (although there are plenty of circumstances where employers do have such an obligation—HIPAA anyone?), the restaurant’s reputation is at risk. The restaurant may worry that celebrities rolling through Raleigh will look for a different place to dine if they’re worried about their tipping habits being made public.
Employees need to understand the legal and reputation-related risks that result from errant posts. Discipline helps get the point across, but pointed communication to avoid the problem in the first place serves everyone better.

Friday, March 9, 2012

Week in Review

This week featured the ongoing battle surrounding technology, the workplace and privacy.  Employees of the Food and Drug Administration sued the agency over its surveillance of their personal e-mail.  A New York judge overturned a teacher's firing that was based on a Facebook posting expressing the wish that her students drown.  Despite the conflicts, a recent report predicts that fewer companies will block social media sites in the workplace by 2014.

Technology and the Workplace
FDA Staffers Sue Agency over Surveillance of Personal E-mail (WashingtonPost)
Companies Opening Networks to Social Media (TimesofIndia)
N.Y. Teacher's Firing Overturned, Despite Facebook Wish That Students Drown (DelawareEmployment)

Technology and the Law
Was That Twitter Blast False, or Just Honest Hyperbole? (NYTimes)
Government Pressuring Publishers to Adjust Pricing Policy on E-Books (NYTimes)
Five Arrested in High-Profile Cyberattacks (CNN)

There's an App for That
New Apps Connect to Friends Nearby (NYTimes)
Apple Unveils New iPad (WashingtonPost) (abcNews) (USAToday)
March Madness: 10 Top Apps for Following the Matchups (abcNews)

Tuesday, March 6, 2012

It’s Been a Privilege

We communicate with our clients by email all the time. Email correspondence is the rule, not the exception, for lawyers and clients these days. We email back and forth about policies, practices, investigations, terminations, leaves, complaints, contracts, union activity, and all the other employment-related issues that we deal with. Sometimes these emails contain highly sensitive information about the employer or employee. Sometimes we discuss legal strategy. Most of the time, information we communicate electronically is information we would never want to share with employees, opposing counsel, or the general public.
Thank goodness for attorney-client privilege, right?  Communications – electronic, paper, or oral – between lawyers and their clients generally stay confidential. They don’t have to be disclosed to anyone, and can’t be used as evidence in court. That’s a very important protection, so it drives us crazy when clients put it in jeopardy by using email carelessly. The fact that interoffice emails discuss legal issues does not necessarily make them privileged. Communications generally have to be to or from a lawyer to gain that protection. Email discussions among company employees about legal strategy, or about legal advice from counsel, may not be protected if improperly shared. An email from lawyer to client may lose its privileged status if it’s forwarded to a third party who isn’t part of the circle of privilege. It’s also important to remember that privilege exists between a company and its attorney, not between individual employees and the company attorney. If an employee uses a personal email account to communicate with the company attorney, it may be more difficult to protect that email as privileged. These concerns affect all types of electronic communication, so texts need to be handled carefully too.
Protecting the attorney-client privilege is complicated, and companies should rely on the advice of their in-house or outside lawyers about how to handle confidential information. Following a few simple rules, however, can be a good start. Unless instructed otherwise by your lawyer:
ü  Don’t forward communication from your lawyer to anyone.
ü  Don’t pass on or discuss legal advice .
ü  Don’t allow anyone (like an assistant) access to your email if you are communicating with counsel about privileged matters.
ü  Mark all electronic and other communications with counsel “Attorney-client privileged and confidential.”

Monday, March 5, 2012

It’s Telework Week!

For more than 60,000 workers in America, March 5-9 will be the week that the "modern workplace" is at home. This week is the second annual effort of Telework Exchange to encourage workers and employers to save time and resources through telework. Telework Exchange describes itself as "a public-private partnership focused on demonstrating the tangible value of telework..." and describes Telework Week as a "win-win opportunity for agencies, organizations, employees, and the environment."

By the end of last week, 62,322 employees had pledged on Telework's website that they would work remotely for at least part of the next five days. That's a big increase from the 40,000 who participated last year. Estimates say that this year's teleworkers will save $4.7 million in commuting costs and prevent 3,000 tons of pollutants from entering the atmosphere.

There's no doubt that telework is becoming more acceptable. For some employers, allowing telework is a recruiting tool. Still there is a debate about teleworkers' productivity, as discussed in a previous post. One recent study concluded that those who work from home actually worked for only one hour each workday; other say that teleworkers are more productive than those who come to the office.

Employers who allow or encourage working remotely must do so with care. Timekeeping and reporting expectations need to be clear and consistent. Worker safety is a consideration, and should be the subject of written agreements or written policies, or both. The security of company documents and information, which we've posted about several times (6/7/11, 9/7/11, and 2/11/12) is a significant concern that only gets harder to address when workers are remote and using their own electronic equipment.

Here's hoping that Telework Week will provide employers more data and discussion about this important topic.

Friday, March 2, 2012

Week in Review

This week technology is once again getting people in trouble.  Legislators are concerned with employers' practices of requiring access to employees' social media accounts.  A federal judge has reported himself for ethics review after admitting to sending a racist email.  Some commentators are speculating that Pinterest users could be held liable for their pins.  Check out the links below to make sure technology doesn't get you into hot water.

Technology and the Workplace
Legislators Concerned About Monitoring of Employee, Student Social Media (SoMdNews)
Keeping an Eye on Employees Working From Home (FoxBusiness)
10 Golden Rules to Get Employees on Board with Social Media (Business2Community)

Technology and the Law
Federal Judge Reports Himself for Ethics Review After Sending a Racist Email (ABAJournal)
Seventh Circuit Says Cops Can Obtain Number From Cell Phone Without Warrant (ABAJournal)
Pin With Caution: Could You Be Liable for Your Pins on Pinterest? (ABAJournal)

There's an App for That
New App to Help Skin Cancer Checks (TheAustralian)
New App Makes Reporting Crime Easier (
Twitter Radio: New App Plays Your Music and Reads Your Timeline Aloud (AppAdvice)

Thursday, March 1, 2012

Is That Contractor Truly “Independent?"

In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses related to the services performed.  The bill would also require that an independent contractor must receive compensation on a per-job or per-bid basis, or in the form of commissions.

Employers must be mindful of all sorts of legal considerations when deciding whether to classify a provider of services as an independent contractor or an employee. The liability that may result from an incorrect independent contractor classification has led some companies to undertake comprehensive audits of those relationships, which can be provided by outside firms or companies.

In the eyes of reviewing authorities like the Department of Labor and the IRS, control is the key factor in determining whether a worker is an independent contractor or an employee. What is said in a company policy or independent contractor agreement about the relationship between company and service provider matters far less than the details of day-to-day control. The proliferation of electronic communication in the workplace, including the ever-increasing volume of and access to email and text messages, makes it easy for a company to micromanage the “how, when, and where” of a contractor’s activities. By doing so, the company erodes the contractor’s independence and creates evidence of control. That, in turn, increases the likelihood that the worker will be determined to be an employee by government authorities.

The overall take-away here should be that businesses must carefully define contractor relationships, and -- even more important -- monitor actual, day-to-day contacts with the independent contractor. Steps must be taken to ensure that company managers do not give in to the urge to control the activities of a contractor who is legally required to be “independent.”  As for the proposed legislation, it appears to be gaining traction in the Minnesota Legislature and is a bill for employers to watch.