Wednesday, May 30, 2012

The Very Real Costs to Employers of Distracted Driving

Although employers rightfully appreciate the efficiency and responsiveness of employees who use cell phones (and smart phones) to get their work done, they must also be aware of the financial and safety risks created by the use of these devices while driving. Numerous media reports have trumpeted the increase of “distracted driving”–including the use of a cell phone–as a cause for automobile accidents. A recent article in the Washington Post noted multi-million dollar jury awards against employers in accidents involving death or serious injury, when the negligent driver was talking, texting, or emailing for company business at the time of the accident. 

Although the risk of serious injury or death should be a significant deterrent on its own, employers should be mindful of the financial risk related to distracted driving. Various studies, including those cited in the Washington Post article, note that drivers using cell phones risk injury at four times the normal accident rate. Several states, including Minnesota, have passed statutes making it a misdemeanor to text while driving. Some states prohibit use of handheld cell phones while driving, and others have more general prohibitions against distracted driving.  In addition, as was noted here, in December the National Transportation Safety Board recommended a complete ban on handheld cell phone use while driving.  The fact that research, legislation, and government action all recognize the risks of using cell phones and smartphones while driving increases the likelihood that an employer will be held liable if it takes no action to minimize those risks.

To protect against this very real economic threat, employers should have (as we have previously discussed) a written policy prohibiting, or at least significantly limiting, work-related phone use while driving. It is equally important that employers take steps to encourage or monitor actual compliance by employees with such a policy. Failure to do so in today’s legal climate invites liability, while creation and implementation of effective policies may provide a liability shield.

Friday, May 25, 2012

Week in Review

This week, technology brings trouble for employees and students, but benefits for the government and its citizens. In Massachusetts, a firefighter's emails were used against him in a sexual harassment investigation. Nearby, a Rutgers student was sentenced to 30 days in jail for using a webcam to spy on his roommate, and a Boston University student's plea for the Supreme Court to review his $675,000 fine for illegally downloading music was rejected. The government, on the other hand, is using technology to solve--rather than create--problems. Federal agencies are using apps to make their services more available, and political candidates are using text-message advertisements to reach more voters.

Technology and the Workplace
No Expectation of Privacy in Emails Sent Over Employer's Email Account, MA Court Decides (Employment Matters Blog)
Federal Court of Appeals Says Cleveland Orchestra Must Bargain with National Union Over Electronic Media (
Microsoft Office Said to be Coming to iPad, Android Tablets (LA Times)
Interview Questions for Hiring a Remote Worker (CBS News)

Technology and the Law
Jury Concludes Google Didn't Infringe Oracle Patents (LA Times) (ABA Journal)
Suit Claims Facebook and Underwriters Failed to Disclose Slow-Revenue Forecasts (ABA Journal) (CNN)
Former Rutgers Student Gets 30 Days for Webcam Spying on Roommate (ABA Journal) (NY Times)
Facebook Settles "Sponsored Stories" Lawsuit (LA Times) (CBS News)
New York Lawmakers Propose Ban on Anonymous Online Comments (CBS News)
Court Won't Reduce Student's Music Download Fine (CBS News)

There's an App for That
Obama Requires Federal Agencies to Make Key Government Services Available as Apps (ABC News)
Amazon Rolls Out Test Drive Feature for Select Android Phones (LA Times)
In 2012, Campaigns Target Voters Through Their Phones (CNN)
App Scans Faces of Bar-Goers to Guess Age, Gender (CBS News)
Leap Motion 3-D Motion-Controlled Device Changes How We Interact with Computers (CBS News)

Monday, May 21, 2012

EEOC Breaks New Ground And Holds that Transgender Discrimination Violates Federal Law

April 2012 was a busy month for the EEOC.  In addition to issuing new Guidance on discrimination against ex-convicts, the EEOC strengthened discrimination protections for another traditionally marginalized group–transgender individuals. In the case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC found, for the first time, that transgender discrimination is illegal sex discrimination under Title VII of the Civil Rights Act of 1964.

Gender identity and sexual orientation discrimination is already unlawful under Minnesota state law and in a number of other states, but the plain language of federal anti-discrimination laws does not prohibit such discrimination. Nevertheless, in Macy, the EEOC found that transgender discrimination rests on impermissible sex stereotyping and is therefore, by definition, “sex discrimination” under Title VII. The EEOC based its decision on U.S. Supreme Court cases that have found sex discrimination based on impermissible sex-stereotyping and on a number of lower federal court decisions holding that gender identity discrimination is unlawful sex discrimination.

Macy involved the denial of a position to a transgender woman who was allegedly promised the job, but then later rejected after disclosing her gender transition. The woman was allegedly told that funding for the position had been cut, but the employer later filled the position. After finding that the woman could proceed with a claim based on transgender discrimination under federal law, the EEOC remanded the case for a review of whether the employer’s decision was, in fact, discriminatory.

The EEOC’s decision in Macy is not binding in federal courts, but federal courts often defer to the EEOC’s position on federal discrimination laws. As such, it's more likely going forward that federal courts will hold that gender identity discrimination violates federal law. It is also possible that the Macy decision may be used by claimants to argue that sexual orientation discrimination is also sex discrimination that rests on unlawful sex stereotyping about male or feminine norms. 

In light of the Macy decision, employers should be prepared for a possible increase in sexual orientation and gender identity discrimination claims and should review their policies and practices to ensure legal compliance.

Friday, May 18, 2012

Week in Review

Facebook dominated headlines once again this week, leaving little room for employment-related matters.  The cyber world was abuzz in anticipation of this morning's launch of Facebook's IPO. The final IPO was set yesterday at $38 per share, but trading opened this morning at $42 a share.  While many investors believe this is their golden ticket, others aren't so sure. With a pending privacy lawsuit and an AP poll showing that half of Americans think Facebook is a passing fad, it remains to be seen what kind of a deal Facebook investors really got today.

Technology and the Workplace
Francesca's CFO Fired Over Use of Social Media (
Use SharePoint on Your iPad or iPhone (CBS News)
The Chronicle of Higher Education Fires Blogger Naomi Schaefer Riley for Mocking University Black Studies Program (Huffington Post)

Technology and the Law
Does Google Have a Free Speech Right to Determine Search Results? (ABA Journal) (Paid Content)
Iran Threatens to Sue Google Over Geography (CBS News)
Texting While Walking Banned In NJ Town (CBS News)
Facebook Sued By Users For $15 Billion Over Online Tracking (Bloomberg)

There's an App for That
Facebook Hits Wall Street, Web Ponders Its Fate (CNN) (ABC News) (CBS News)
As Facebook Grows, Millions Say "No Thanks" (ABC News) (CNN)
Google Launches New Search with Knowledge Graph (ABC News) (CBS News)
Digital Guardians That Help Ease the Fears of Parents (NY Times)
Twitter Tailored Suggestions Aim to Help You Follow More Relevant Users (CNN) (Twitter Blog)

Thursday, May 17, 2012

EEOC Strengthens Discrimination Protections for Ex-Offenders

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. This Guidance furthers the EEOC’s strategic focus on eradicating systemic race discrimination, as discussed in earlier blog posts (4/25/12 and 1/27/12). Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To be lawful under Title VII, an employment exclusion must be based on proven criminal conduct and must be job-related and consistent with business necessity. In light of the Guidance, employers should take the following steps to ensure that their criminal history screening policies and practices are not discriminatory:

  • Don’t make decisions based solely on an arrest.  Arrest-based decisions are discriminatory, because an arrest does not establish that criminal conduct occurred. An employer may, however, exclude someone from employment based on the conduct underlying an arrest if that conduct occurred and makes the person unfit for the position.
  • Don’t engage in intentional discrimination.  Intentional race discrimination is unlawful, even if against ex-offenders. For example, it is unlawful to refuse to hire a person of color based on a drug conviction, but to hire a similarly situated Caucasian.
  • Don’t maintain a blanket policy or practice of automatic exclusions. The Guidance provides that blanket-exclusions are unlawful, because they are not tied to the particular position or criminal conduct at issue.
  • Do make sure that any exclusion is job-related and consistent with business necessity. The Guidance provides that the following types of exclusions satisfy this standard:
    • Exclusions that have been validated under the EEOC’s Uniform Guidelines on Employee Selection Procedures.
    • Exclusions based on a written, targeted screening policy and procedure under which the employer considers, at a minimum:
      • The job’s essential duties and the circumstances under which the job will be performed;
      • The type of criminal conduct that makes someone unfit for the position;
      • The duration of any exclusion, taking into account recidivism data, if available, on the period during which someone is likely to reoffend; and
      • Either (1) the existence of a “demonstrably tight nexus” between the criminal conduct and the position; or (2) an individualized assessment, of any explanation offered by the individual, based on the employer’s request, as to why he or she should not be excluded from employment.
    • Exclusions that result from federal law or regulations.
    • Exclusions that result from state law or regulations, but, because Title VII preempts state requirements, only if the exclusion is job-related and consistent with business necessity.
  • Do train human resources, management, and hiring personnel.  Employers should train the individuals charged with carrying out employment practices on policies and practices on the use of criminal history information.
  • Do Maintain Confidentiality:  To promote privacy and prevent the improper use of irrelevant information, employers should consider asking only for job-related criminal history information. If this is not practical, an employer might wall off the individual screening criminal history data from the decision-making process and have that individual share only relevant information with the decision makers on a confidential basis. Criminal history information that is obtained by an employer should be kept confidential and stored in a confidential manner.

Friday, May 11, 2012

Week in Review

Tired of hearing about privacy?  Perhaps you should avoid the news for a little while longer, then, because this week the war over online privacy heated up when Congress decided to join the fight. On Wednesday, the Password Protection Act of 2012 was introduced in the US Senate.  It seeks to prohibit employers from coercing prospective and current employees to provide access to any secured information stored online or from retaliating against employees' refusals to do so. An identical bill is being debated in the House. A California bill with the same aims unanimously passed the Assembly on Thursday.

Technology and the Workplace
Democrats to Employers: Stop Asking for Facebook Password (CBS News)
CA Assembly Votes to Keep Facebook Passwords Private From Employers (LA Times)
How to Use Social Media Monitoring to Keep Tabs on Your Competition (Washington Post)
Make Status Reporting Easy and Searchable (CBS News)

Technology and the Law
IL Eavesdropping Law Can't Be Used to Stop Public Recordings of Cops, 7th Circuit Says (ABA Journal)
Twitter Fights Court Order for Users' Data (CNN)
Myspace Settles with FTC on Privacy Charges (CBS News)

There's an App for That
Facebook Launches an App Center (Washington Post)
Bing Makes Search More Social with Facebook and Twitter Results (ABC News) (LA Times)
Facebook Quietly Launches File Sharing  (LA Times)
Free Online Tool Makes Scheduling an Easy Task (CBS News)

Monday, May 7, 2012

Passwords and Privacy

It has been less than 90 days since the Associated Press ran a story about employers requiring applicants and workers to provide their passwords to social media sites like Facebook, and now a new law makes this illegal. Maryland is the first state to enact a law making it unlawful for employers to ask applicants or employees to provide their log-in information.  Other states have similar bills pending.

In late April, the Social Networking Online Protection Act, or SNOPA, was introduced in Congress. If passed, this law would prohibit current and potential employers from requiring a username, password, or other access to online content. These constraints would also apply to schools, from kindergarten through university level. It is too soon to know whether SNOPA and similar state laws argue that many of us rely on sites like Facebook to stay connected to our friends and family, and that social media sites like Facebook are mediums for private communications. I am all for privacy and tend to agree with the general idea that an employer should not be allowed to require access to a social media site that is set up as private. 

On the other hand, social media sites can provide a lot of job-related information about employees and applicants. These sites can also contain information that could cause liability for an employer, such as a Facebook post in which an employee threatens to harm his supervisor, or  multiple anti-Semitic remarks posted by an employee and seen by his Jewish “friends” at work.

I once counseled a large retail employer which was notified by an employee that a co-worker had posted a “butt” video on Facebook.  The employee reported to a manager that the video was a series of close-up shots of customers’ backsides, and that the brand name and logo of the employer was visible throughout the video.  The manager knew that it would be risky to terminate the accused employee based on the report alone; he wanted to find out if the video was real.  He asked the co-worker to sit with him at his desk and go to his Facebook page to take a look.  The employee agreed, showed the manager the video, admitted to taking the video while on duty, and was fired.  Under these new laws, what the manager did would be unlawful.

The new privacy laws appear to be well-intentioned, but their impact in the real world remains unknown.   There are no easy answers for employers when it comes to online privacy rights of employees, and changes in the law are likely to continue and come quickly.   Employers should closely monitor the legal developments in this area, implement or update policies as appropriate, train and educate employees about any policy changes, and seek legal advice when managing these issues. 

Friday, May 4, 2012

Week in Review

Privacy is right on the tip of everyone's tongue again this week.  Delaware proposed its own Facebook privacy law for employers and employees that goes even further than Maryland’s recent legislation and  the law currently before Congress.  The FCC released its full report on concerns with Google's gathering of data for their Street View feature on Google maps.  A court in the Eastern District of Virginia ruled that a Facebook "like" is not protected under the First Amendment.  Finally, the New York Times described how users can cover up their searching habits on the web.
Technology and the Workplace
Delaware Proposes Facebook Privacy Law (Delaware Employment Law Blog)
SNOPA Bill Seeks to Keep Employers out of Private Social Networks (LA Times)
O'Malley to Sign Facebook Password Legislation (Washington Post)
Tablets Go to Work (Star Tribune)

Technology and the Law
Can "Friends" be Trade Secrets (Unfair Competition & Trade Secrets Counsel)
Is Facebook Like Protected Under the First Amendment: Court Says No (The Atlantic)
Oracle, Google Await Verdict in $1 Billion Dollar Smartphone Lawsuit (Fox News)

There's an App for That
LinkedIn Launches iPad App (Mashable)
Barnes & Noble Deal Shows Microsoft's Patent Power (Information Week)
Apps for Learning Languages (NY Times)

Wednesday, May 2, 2012

When was the last time you updated job descriptions?

There is a chance that what your employees actually do in the day-to-day performance of their jobs isn’t what’s written in their job descriptions. This may not appear to be a problem if the work is getting done, but inaccurate or incomplete job descriptions can and do create problems for employers, especially if the EEOC or the Department of Labor comes calling. Employers are wise to include routine review and updating of job descriptions on their list of spring cleaning priorities. In addition to being part of a good defense against some claims of unfair or unlawful treatment, accurate job descriptions are also part of a good offense, helping employers recruit the right employees for positions and manage performance and expectations.

Employers should start by asking how the people in a given position really spend their time, and should take the time to get specifics. Find out what the good performers do and what skills they bring to the table. You may find that the job description emphasizes duties that are less important, or that the important tasks barely receive a mention. You may find that as a job has evolved or as it has been changed by technology, certain skills are more or less important than they once were.

Once you have done your homework, you can draft a job description that more accurately reflects reality. If you have identified the right responsibilities and needed skills and experience, you can hire for the right skills. In addition to helping avoid performance problems, an accurate job description can help you navigate other, sometimes dangerous, waters, such as helping to avoid disability discrimination claims by clearly and accurately defining the essential functions of a position. Accurate and complete job descriptions can also assist in classifying, and avoid misclassifying, employees as exempt from wage and hour laws. If an employee is treated as exempt, the job duties must meet a test for exemption. Misstating the job duties will not offer protection from lack of compliance. Better to have a clear and accurate sense of what employees do, reflect it in the job description, and classify from there. 

Really, the process of analyzing job descriptions is as important as the end product itself. The process offers the opportunity to make sure you’re finding the right people for the right jobs, and to correct when you get off track. The process also provides a self-check to avoid trouble areas like discrimination claims and wage and hour problems. The best recipe is to engage in the process routinely and treat job descriptions as works in progress.