Friday, April 27, 2012

Week in Review

What would a Week in Review be without some Facebook controversy? No need to ponder that possibility too long, for this week brings us a whole variety of ways in which Facebook is getting people into trouble. In the working world, a Marine lost his job and benefits because he used Facebook as a forum to criticize his Commander in Chief. In Indiana, three eighth-grade girls got expelled for posting on Facebook which classmates they would like to kill.  In Georgia, two more middle schoolers are being sued for defamation as a result of their Facebook bullying. So remember, whether you are a Marine or teenager (or somewhere in between), you are accountable for what you put online.

Technology and the Workplace
 Oxnard Teacher, and Former Porn Star, Appealing School Board's Decision to Fire Her (LA Times) (IBTimes) (MSNBC)
Marines Discharge Sergeant for Anti-Obama Facebook Posts (CBSNews) (CNN)
Who Owns Your Stuff in the Google Drive Cloud? (LA Times)
How Your Social Medial Profile Could Make or Break Your Next Job Opportunity (Forbes)

Technology and the Law
3 Indiana Girls Expelled Over Facebook "Jokes" (ABCNews) (ABAJounral)
Victims of Cyberbullying Fight Back in Lawsuits (ABCNews) (ABAJournal)
As House Passes CISPA, the Fight is Just Beginning (Forbes)
Cellphone Firms Oppose CA Law to Make Police Cellphone Snooping Public (MSNBC)

There's an App for That
Swiss Scientists Demonstrate Mind-Controlled Robot (CBSNews)
How Much Would You Pay for a Self-Driving Car? (LA Times) (Forbes)
Skype Swaps Emoticons for Webcam Photos, or "Humoticons" (Forbes)
Get Ready for Indoor GPS that Tracks Your Every Step (MSNBC) 

Wednesday, April 25, 2012

EEOC Focus on Criminal Background Checks and Ex-Offender Hiring


The EEOC’s recently announced Strategic Plan for Fiscal Years 2012 – 2016 identifies systemic discrimination as a main focus of the next few years. What does this mean for employers? Among other things, employers need to be cautious about policies that, although facially nondiscriminatory, end up adversely impacting legally protected groups.

Given the publicity surrounding the EEOC’s recent settlement with Pepsi, the enforcement and litigation priorities  referenced in its new strategic plan are certain to include the elimination of policies that unreasonably hamper the employment of ex-offenders. Such policies have an adverse impact upon minority and male applicants, and are becoming a growing social concern as the use of criminal background checks becomes more prolific.

While many employers are aware of the risks of denying employment based solely on an applicant’s arrest records, the EEOC’s enforcement efforts go further. They have extended to cases involving individuals who were denied employment due to prior convictions.  As we have indicated in a recent blog post, it is important that employers avoid creating or adopting blanket prohibitions against hiring ex-offenders.  A far safer approach for employers is to do a case-by-case analysis of applicants that considers factors such as:
• the nature of the crime for which the individual was convicted;
• the length of time that has passed since the crime was committed or the individual was incarcerated; and
• the relationship between the crime and the position for which the individual is seeking employment.
If a careful case-by-case analysis is done, it will be far easier for an employer’s hiring decisions to withstand future EEOC scrutiny.

Friday, April 20, 2012

Week in Review


This week produced more evidence that technology pervades every aspect of our lives, from our work, to our health, to our… dreams? That’s right, there’s an App for that. But don’t lose heart just yet, because this week also saw some pushback against the tech-takeover. In the working world, two Nashville men set out to prove that even television shows have to follow the law in hiring cast members. These men are suing ABC for race discrimination, stating that in the 10 years and 23 combined seasons of "The Bachelor" and "The Bachelorette" there has never been a person of color in the central role. In Portland, a man stripped down all the way to the buff to protest airport screening technology. Officials slapped him with an indecent exposure charge, but he’s claiming his conduct is protected by the First Amendment.

Technology and the Workplace
Lawsuit Claims "Bachelor" Show Discriminates (ABCNews) (CBSNews) (Lawffice Space)
A Reason to Stay Off the Web at Work (CNN)
Social Media Research May Expose Discrimination Claims (InformationWeek)
Gamification Boosts Employee Health, Blue Shield Argues (InformationWeek)

Technology and the Law
New Twitter Patent Policy Gives More Power to Inventors (InsideCounsel)
Lawyer Accused of Breaking Into Ex-Employee's Personal Email is Barred From Using Computer at Work (ABAJournal)
Nude But Not Lewd, Passenger Takes It All Off For Airport Security, Faces Indecent Expsoure Charge (ABAJournal)

There's an App for That
iPhone App Aims to Program Your Dreams ("Inception" Anyone?) (CNNBlogs) (ABCNew) (FOXNews) (CNETNews)
App Lets Users Hail Taxi From Smartphone (USAToday)
Sony SmartWatch Could Use a Little More Time in Development (USAToday)

Ashley Walek Thronson is a law clerk at Gray Plant Mooty.

Wednesday, April 18, 2012

Federal Court of Appeals Blocks NLRB’s Notice Posting Rule, But New Election Rules Take Effect on April 30

To post or not to post?  Employers now have a temporary answer. The D.C. Circuit Court of Appeals has issued an order blocking implementation by the National Labor Relations Board of its announced rule requiring private employers to post a Notice of Collective Bargaining Rights by April 30. We have previously written (click for The Modern Workplace and Employment Edge) about the Notice posting rule. Now employers will not be required to post the Notice until at least some time later this fall. This does not affect in any way the underlying collective bargaining rights that were the subject of the Notice. Nor does the ruling change the effective date of the NLRB’s new rule for union organizing elections, which remains April 30.

This will not be the end of the Notice posting issue. In an April 17 press release, NLRB Chairman Mark Gaston Pearce said, “We continue to believe that requiring employers to post this Notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

In its press release the NLRB stated it would not implement the rule pending the resolution of the issues before the D.C. District Court, which will not occur until late this year. The NLRB also noted that it plans various appeals in its efforts to resolve the status of the Notice rule.  

Many employers and their advocates have expressed concern that the Notice posting requirement might lead to increased union organizing activity. This concern is now less immediate, but the NLRB’s new election rules that become effective at the end of April could also have a tendency to increase unions’ organizing success rates. 

To prepare for the new election rules, employers wishing to avoid unionization may be wise to take proactive steps to improve their positioning in the event of union activity in the workplace, such as ensuring that supervisors are clearly identified and empowered with the kind of authority the NLRB will recognize as sufficient to keep them out of any unit that a union attempts to organize.

Friday, April 13, 2012

Week in Review

This week brought some protection for employees in their use of work computers and social media.  The en banc Ninth Circuit ruled that employees who violate an employer's computer use policy do not commit a federal crime under the Computer Fraud and Abuse Act.  But employees should take note that the circuits are split on this issue.  The Maryland legislature also sided with employees by becoming the first state to pass a bill banning employers from requiring social media passwords.  The bill currently awaits the governor's signature.

Technology and the Workplace
9th Circuit Narrows Computer Fraud Law, Protecting Web-Surfing Workers (ABAJournal) (LawfficeSpace)
Maryland Passes Bill to Ban Employers from Requesting Facebook Passwords (Forbes)
Gay Federal Employee Says Facebook "Like" Led to Discrimination, Harassment, and Firing (abcNews)

Technology and the Law
DOJ Files Antitrust E-Book Lawsuit Against Apple and Five Publishers (WSJ) (cbsNews)
Reporter's Tweeted Photo Leads to Mistrial in Topeka Murder Case (ABAJournal)

There's an App for That
Carrier Compare: The iPhone App Your Carrier Doesn't Want You to See (CNNMoney)
New App Makes You Feel Safer (abc2News)
Barnes & Noble Lights Up E-Reader Screen (cbsNews)

Wednesday, April 11, 2012

Technological Change in Employment Practices – The Law Struggles to Keep Up

I just read an online article which claims that employers are turning to gaming techniques to recruit and screen potential applicants. In fact, I learned another new word: “Gamification.” Apparently, some companies are finding that gaming techniques help them find better hires when the traditional applicant screening methods are not effective at finding employees with the right mixture of skills. With the expected shortage of skilled workers that will result from the retirement of the baby boomers, finding employees with the right skills and attributes has become even more important. 

Gaming techniques are used in a number of ways. For instance, many companies design a competitive test using game mechanics to find people with certain skill sets. Other companies are use game-style rewards to encourage applicants to provide more complete information

After I read this story, I immediately thought about the legal issues that could arise from the use of gaming techniques to screen job applicants. For instance, how do you accommodate an applicant with a disability? And does a game-based recruiting or screening method have a built-in age bias? What about a built-in gender bias? In my mind, this is another example of speedy technological change that the law will struggle to keep up with. Often, we do not have answers about the legal ramifications of the use of technology in the workplace at the time the technology is ready to be used. As a result, we are left with trying our best to analyze risks based on the current state of the law, sometimes only guessing how it may be interpreted in a particular situation.   

Technological changes, such as Gamification, can make work easier and more productive. We just need to make sure that we have carefully thought about all of the ramifications of the use of such technology, good and bad, so that we are not blindsided by legal liability or other unintended consequences.

Tuesday, April 10, 2012

Social Media Recommendations – A New Risk for Employers

All employers have had a request from a potential new employer for a “recommendation” about a prior employee. I use the term “recommendation” loosely, because often the potential new employer really wants to find out if there is anything wrong with the candidate they’re considering. Providing information about prior employees, or even current employees, may create the risk of claims for defamation or create other types of liability. As a result, many employers try to limit their risk by declining to provide any recommendations for employees or former employees. Other employers modify that a bit by requiring that the employee provide a release before a recommendation is given. Many employers require that all requests for recommendations or references must be forwarded to and handled by the Human Resources Department.

For years, we have warned employers to make sure that all employees know about restrictions on giving recommendations. It’s easy for prospective employers and others to “back door” such a policy by calling supervisors or other employees directly, and those who are unaware of their restrictions may violate the policy and inadvertently create liability for the employer.

Now, a new risk has arisen in the battle to control information that is provided about employees and former employees. Social media networks such as LinkedIn have created mechanisms for reviews and comments. As employees become connected in this virtual world, they are often asked to provide a review, recommendation or comment about the work of others.

Why is this new risk such a concern? First, most employees do not think that their comments on such sites, including LinkedIn, are covered by recommendation policies. Just as important, all such comments, however ill-advised, are easy to find. Imagine a situation in which you are defending a discrimination action brought by a former employee, and trying to prove that the employee was terminated for poor performance. It is now easy for the former employee’s lawyer to go online and find glowing reviews and positive comments from your supervisors and employees about the former employee. That can significantly harm your chances of success as you attempt to establish your non-discriminatory business reason for termination. It may also be difficult to establish that negative comments, such as those that might give rise to a defamation claim, are individual opinions rather than the comments of the employer organization.

What do you do to address this risk? You won’t be surprised to hear me say that you need to have policies that cover all aspects of participation in social media, including the posting of comments about employees and former employees. You need to educate your employees about those policies and enforce them, so that they will stay front-of-mind for everyone in your organization.

Friday, April 6, 2012

Week in Review

As the law attempts to keep up with technology, judges often must draw difficult lines concerning social media and individual rights.  A recent ruling by an NLRB administrative law judge held that a provision in an employer's social medial policy prohibiting any online commenting on work-related legal matters was too broad.  However, the judge upheld another portion of the policy prohibiting unapproved posting of photos showing employees in uniform.  A Washington case asks whether an employer engaged in disability discrimination when it fired an employee after discovering her suicidal Facebook postings.  A Marine has filed suit on First Amendment grounds after facing dismissal for Facebook postings criticizing the Obama administration.

Technology and the Workplace
NLRB Administrative Law Judge Splits the Baby in Ruling on a Social Media Policy (OhioEmployer'sLawBlog)
Facebook and Suicidal Thoughts (SocialMediaEmploymentLawBlog)
Why Corporations Covet 'Kill Switches' on Workers' Mobile Devices (Businessweek)

Technology and the Law
Police Are Using Phone Tracking as a Routine Tool (NYTimes)
Marine Facing Dismissal for Facebook Page Argues Free Speech Case (ABCNews)
Arizona Stalking Bill Prohibiting Annoying, Offensive Online Comments to Be Amended (WashingtonPost)

There's an App for That
The Quiet Place: an Internet Escape, on the Internet (Forbes)
Google Offers Look at Internet-Connected Glasses (NYTimes)
For Home Buyers, an App to Assess a House's Attributes (NYTimes)
3 Must-Have Health & Fitness Apps for the Busy Business Professional (FastCo)

Wednesday, April 4, 2012

Changes Ahead for the Form I-9?

Last week,  U.S. Citizenship and Immigration Services published proposed revisions to Form I-9 in the Federal Register (go to this link and click on PDF image). The proposed form includes more detailed instructions and greater clarity about what information is required in the various fields. The most notable change is that the proposed form is two pages instead of one. In addition, the draft form includes several modifications and additions worth noting, including:
  • “Time of hire” is redefined as “no later than the first day of work for pay.”
  • Clear instructions to employers about how to handle receipts for acceptable List A, B, and documents and how to re-verify employees.
  • New fields request optional information including the employee’s phone number and email address.
  • Changes to the employer attestation (1) requiring the employer to confirm that  it examined the employee’s documents and determined they are genuine and relate to the employee and (2) requiring a statement that, to the employer’s knowledge, the employee is authorized to work in the U.S.
  • Minimal changes to the list of acceptable documents, including a clarification that restricted Social Security cards are not acceptable.
The draft form is not yet effective and likely won’t be approved until sometime after the public comment period ends on May 29, 2012. Until then, employers should continue to use the most current version of the I-9, which has a revised date of August 7, 2009.