Thursday, August 30, 2012

Week in Review

Oh, the joys of technology. It can keep you connected when you're feeling social or provide hours of solo entertainment when you're not. And with new apps coming out every day, it is easy to get lost in a sea of technologically-induced euphoria. But don't let your guard down too quickly, because events this week remind us that where there is technology, there likely is someone -- or something -- watching.

A St. Paul police officer and a Yahoo News reporter learned that lesson the hard way. The officer, who was caught on a bystander's cellphone kicking an arrested suspect, is facing an internal investigation and community reaction. The Yahoo News reporter was fired after an audio test at the Republican National Convention inadvertently broadcast his disparaging comments about Mitt and Ann Romney.

California state legislators seem to understand the surveillance risks technology can pose. They just passed a bill requiring police to secure a warrant before obtaining GPS and cellphone tracking data. The bill is said to codify United States v. Jones, a U.S. Supreme Court case which held that the police must obtain a warrant before tracking criminal suspects using GPS technology.

Technology and the Workplace
BigLaw Firm's Alleged Blog Disclosure Results in Defamation Claim by Ex-Associate (ABA Journal) (National Law Journal)
Motorola Software Developer Gets 4 Years in Prison for Stealing Trade Secrets (FOX)
Yahoo News Employee Fired Over Romney Remarks (WSJ)
St. Paul Police Officer Faces Investigation After Bystander Video Shows Violent Arrest (Star Tribune)
Google+ is Now at Work, App Rolls Out Social Networking Features (LA Times)

Technology and the Law
What the Apple-Samsung Verdict Means for Your Smartphone (CNN)
Court Rejects First Amendment Argument in YouTube Death Threat Case (Knoxville News Sentinel) (WSJ)
Location Privacy Bill Passed By CA Assembly (NBC)
Dutch Man Gets Suspended Term for Insulting Queen on Twitter (Irish Times)
Who Inherits Your iTunes Library? Why Your Digital Books and Music May Go to the Grave (Market Watch)

There's an App for That
A Facebook App That Aims to Keep Private Photos Private (NY Times)
A Shelf Full of Cookbooks at Your Fingertips (NY Times)
Super PACs Spending: Tech Tool That Help You See Who's Funding Who (Huffington Post)
25 Things You Didn't Know Your iPhone Could Do (Yahoo)
Date Much? You'll Want These Tech Tools (NBC)

Between a Rock and a Hard Place: The NLRB and EEOC Challenge Confidentiality Requests During Investigations

The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality requests during investigations.
The NRLB’s Position:  At the end of July, the NLRB announced that employers may not have a blanket practice of asking employees not to discuss a complaint with coworkers while the employer is investigating the complaint. (See Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-023438.) The NLRB held that a complaining employee has the right to talk with coworkers about workplace concerns and this right is not outweighed by generalized concerns about the integrity of an investigation. The NLRB stated, however, that an employer may request confidentiality based on an individualized assessment that reveals case-specific risks and takes into account whether (1) witnesses need protection; (2) evidence might be destroyed; (3) testimony might be fabricated; or (4) there might be a cover-up.
The EEOC’s Position:  In early August, a Buffalo, New York EEOC office warned an employer that its confidentiality policy was unlawful, because it was written broadly enough to prohibit a complaining party from talking to the EEOC during the employer’s investigation. This is not the first time the EEOC has challenged confidentiality requirements. In 2002, the EEOC settled a lawsuit with a Minnesota employer over a broad confidentiality statement sent to individuals after they filed charges of discrimination that purported to limit a charging party’s right to talk to witnesses. It appears the EEOC’s position is that confidentiality requirements must not interfere with a complaining party’s ability to gather evidence or pursue a discrimination charge.
What’s an Employer to Do?  While I don’t advocate for confidentiality requirements that would prohibit a complaining party from talking to an attorney, to the EEOC, or gathering evidence in a pending legal action, I’m surprised the NLRB and EEOC won’t recognize an employer’s right to limit workplace conversations for a temporary period during an ongoing investigation. Investigations are usually of a limited duration and, by law, must often be conducted promptly. As such, a temporary limit on workplace conversations should not be unduly burdensome. In addition, confidentiality promotes other legal protections for employees that the EEOC itself enforces. The EEOC enforces anti-retaliation laws, and confidentiality during an investigation reduces the risk of retaliation against a complaining party or supporting witnesses. In addition, the EEOC itself has taken the position in its guidance on sexual harassment that employers are obligated to keep harassment investigations as confidential as possible. This is obviously more difficult to do if an employer can’t request that employees maintain confidentiality.
For now, however, the NLRB’s and EEOC’s positions are what they are. As such, a cautious employer that wants to comply with both the NLRB’s and EEOC’s position on confidentiality should consider doing the following:
·       Conduct the type of individualized assessment discussed above and issue a confidentiality request only if the employer can identify case-specific risks. If a concrete risk can be demonstrated to justify a confidentiality request, the employer should document its risk assessment and any reasons for requesting confidentiality.

·       It appears the NLRB would look more favorably on an employer expressing a preference for confidentiality rather than imposing a confidentiality “requirement” that may lead to discipline or discharge.

·       When a confidentiality request is made, an employer should affirmatively advise the individual making a complaint that he or she is not prohibited from talking with others to gather evidence or in pursuit of the complaint. An employer might still ask the complaining party to be discrete, however, explaining that the employer doesn’t want information to get out that might interfere with the employer’s ability to complete a thorough investigation and to gather accurate evidence.

Wednesday, August 29, 2012

Employee Handbook Reviews: Take a Look at Your At-Will Disclaimer

There’s a new and surprising issue employers should be aware of when updating their employee handbooks this year:  the scope of their at-will disclaimer. A few months ago, in American Red Cross Arizona Blood Services Region and Lois Hampton, an NLRB administrative law judge (“ALJ”) held that the acknowledgement form contained in an employer’s handbook violated the National Labor Relations Act, which applies to almost all private employers. The language in question stated:

“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

The ALJ reasoned that this language was an unfair labor practice because the “acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.” The ALJ went on to state, “For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”

Hyatt Hotels Corp. was subject to a similar unfair labor practice charge based on an employee handbook acknowledgement that stated:

 “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive VP/Chief Operation Officer or Hyatt’s President.”

Hyatt entered into a settlement agreement to resolve the matter. 

The NLRB’s new focus on at-will disclaimers is similar to its focus on social media policies. The Board is looking at general policy statements aimed at all employees and finding that they are too broad and “reasonably chill” employees in the exercise of their rights to engage together in “concerted activity” protected by the NLRA. Work rules or policies that “reasonably tend to chill employees in the exercise of their Section 7 rights” violate the National Labor Relations Act, even if the rule is never enforced in a way that impacts employees’ ability to engage in concerted activities to improve their wages and working conditions. 

It’s still very important, of course, for employers to include at-will disclaimers in their employee handbooks. Disclaimers are important in defending against claims that a statement by a co-worker or manager altered the at-will relationship. Right now, though, it’s unclear what type of at-will disclaimer the Board will approve. Employers should work closely with their legal counsel to find an at-will disclaimer that appropriately balances these competing concerns. In addition, employers should continue to watch this issue closely for future Board statements.

Thursday, August 23, 2012

Week in Review

Here at the Week in Review, we've seen our fair share of bad employee decisions and the terminations that sometimes follow them. This week, workers around the country found themselves in a whole different kind of trouble for their unwise--and illegal--use of technology. In Texas, a teacher was sentenced to five years in prison for having sexual relationships with five of her students. The relationships began via text message and culminated in a cellphone recording of one of the sexual encounters. In Minnesota, a football coach is facing felony child porn charges after the University's IT department found videos of dancing nude children on his school-issued cell phone. An Oregon store employee was arrested on charges of invasion of privacy after allegedly using his cellphone to spy on a mother and daughter in one of the store's changing rooms. A Florida Parks and Rec employee suffered a similar fate for videotaping a mother and daughter using one of the park's restrooms. Although each of these individuals must answer to the criminal justice system, this string of events serves as a reminder of the role technology can play in inappropriate behavior.

Technology and the Workplace
Record $22.5M Google Pact Sparks Self-Scrutiny by Other Companies Regarding Privacy, Data Security (ABA Journal)
Ex-Kennedale Teacher Caught on Tape Having Sex with Students, Sentenced to Five Years in Prison (Star-Telegram) (Above the Law)
Felony Charges Filed Against MN Coach After Child Porn Found on His School-Issued Cellphone (Star Tribune)
NYPD Workers Disciplined for Racist Facebook Posts (La Crosse Tribune)
OR Employee Accused of Peeping into Fitting Room with Cellphone (Katu) (San Francisco Gate)
Boca Raton Parks & Rec Employee Admits to Videotaping Women, Children in Park Bathroom (NBC)

Technology and the Law
CA Senate Passes Social Privacy Bill (WSJ)
Tax-Free Ride is Ending for Online Shoppers in CA and PA (ABA Journal)
Your Online Viewing Habits Are Private and Protected, Says Court (CBS)
Facebook to Remove Content That Incites Violence or Hate Speech (Jagron Post)
450-Foot Cellphone Tower Near BWCA Will Be Allowed (La Crosse Tribune)
Judge Rejects Facebook's $20M Settlement in Ad Lawsuit (CNN)

There's an App for That
"Super PAC App" Knows When Political Ads Stretch the Truth (CNN)
Smartphone App Helps More Singles Find the Boy (or Girl) Next Door (NPR)
Facebook & CNN Launch the "I'm Voting" App (CNET)
Free Waze App Uses Crowdsourcing to Help Drivers Avoid Traffic (Autoweek)
Acadian Ambulance Launches New I.C.E. Mobile App (Benzinga)

Thursday, August 16, 2012

Week in Review

Past Weeks in Review have recounted many tales of Facebook-induced terminations. Fired for Facebook comments? Check. Fired for Facebook photos? Check. Fired for Facebook Likes? Check and check below. But fired for "friending" someone on Facebook? That is precisely what happened to a Georgia county deputy who wanted to be "Facebook friends" with an inmate. The two struck up sexually-charged conversations while she was being held in the county jail, and it appears the deputy wanted to keep contact after she was released on bond. Turns out neither the Sheriff's office nor the inmate's boyfriend thought that was a very good idea. The boyfriend complained and the Sheriff's office fired the deputy.

Other workers who lost their jobs this week due (allegedly) to online activity include: a Library of Congress employee who liked a  Facebook page which supports gay parents, a city budget clerk who sent an email to city council members about alleged overtime-pay violations, and a Sberbank employee who posted a bad joke about the bank's clients on the lender's Twitter and Facebook pages.

Technology in the Workplace
GA Jailer Fired After Sending Facebook Friend Request to Inmate (FOX)
Facebook "Like" Outs Gay Fremont Man, Costs Him Job at Library of Congress, Lawsuit Says (MLive)
Sberbank Employee Fired for Tweet (Moscow Times)
Budget Clerk Allegedly Fired for Emailing City Council Members About FLSA Violations, Now Suing the City (Chattanooga Times Free Press)
Show and Tell for Teachers, Inspired by Reality TV (NY Times)

Technology and the Law
6th Circuit Oks Warrantless Tracking of Cellphones (ABA Journal) (CNET)
Judge Tosses Lawsuit Over FBI Surveillance of California Mosques (ABA Journal) (LA Times)
NJ Mom Sues Over Breast-Feeding Video-Turned-Porn (Boston Globe)
Google To Pay Record Fine Over Safari Privacy Violations (FTC) (Huffington Post)
Create a Digital Will to  Manage Your Online Accounts When You're Gone (NBC)

There's an App for That
Toutapp Tracks Who Reads Your Outlook Email, Attachments (CBS)
What's Privacy Worth? Facedeals App to Scan Your Face in Exchange for Discounts (NBC)
Hot Dogs Won't Roast With Owner-Texting Collar (NBC) Deletes Baby Pictures From Facebook (CBS)
Post Card on the Run App Sends Physical Postcard From Your Smartphone (

Wednesday, August 15, 2012


A recent survey conducted for is a good reminder that our words matter. Employers and employees were asked about swearing in the workplace. 51% of workers surveyed said they swear at work, although they reported being much less likely to swear in front of superiors than in front of their co-workers.  81% of employers said that swearing brings an employee’s professionalism into question, 71% said that it indicates lack of control, and 68% said it indicates a lack of maturity. Overall, 64% of employers reported that they would think less of an employee who repeatedly swears, and 57% said they would be less likely to promote an employee who swears.
The survey reported, among other things, that more workplace swearing goes on in Washington D.C., where 62% of employees reported swearing at work, than in Minneapolis (50%) and Philadelphia (44%). I’m betting that the acceptability of swearing varies a lot from workplace to workplace, too. Twenty years ago, I moved from a firm where salty language was very common to my current firm, where I’ve never heard a swear word uttered in a group setting. That was an adjustment for me, and I can imagine that similar culture shock occurs frequently as employees move from one workplace to another. Employers should not assume that everyone they hire will automatically understand the culture of their new workplace. It’s essential to make expectations for language and behavior clear in both policy and practice, and to point out and correct inappropriate language or behavior when it occurs. The line between profanity and harassing language can be very thin, and a workplace that tolerates a lot of swearing may find itself accused of tolerating harassment. Swearing may also be seen as part of bullying behavior that employers need to be concerned about.
Employers’ rules and expectations can make a difference, but individual employees have to take ultimate responsibility for their written and oral communications. The best guideline I know of for managing your own language can be summed up this way: “You don’t say ‘s**t’ to your grandmother.”  We all need to be conscious of our audience and sensitive to who’s listening to us. We need to remember that what’s acceptable to us is not necessarily acceptable to others, and that we can offend without meaning to. In today’s world of electronic communication, perhaps the rule should be modified to read “You don’t say, text, email, or tweet ‘s**t’ to your grandmother.”

Thursday, August 9, 2012

Week in Review

There is a fine line between speech that is protected and speech that is not. Cross it, and you may be in trouble. Events this week demonstrate how making this distinction is getting even harder -- and riskier -- as technology evolves. In Virginia, six sheriff's office employees were fired after they liked the Facebook page of their boss's re-election opponent. The district court disagreed with the employees' contention that their "likes" were protected speech, but both the ACLU and Facebook have already filed appeals to the Fourth Circuit. Over in Kansas, a federal judge's like of a sheriff's campaign post has made her the center of an ethics complaint.

Other individuals catching flack this week for their technological "expressions"include: a TV news director who referred to a homeless Native American as an animal, a Taco Bell employee who tweeted a picture of himself urinating into what he claimed was a platter of nachos, and creators of a Facebook page which depicts Aboriginal Australians as drunk welfare cheats. Only time will tell where each line will ultimately be drawn, but until then, tread carefully.

Technology and the Workplace
How Facebook "Likes" Can Still Get You Fired (Mobiledia) (Washington Post)
Duluth TV News Director Resigns After Disparaging Facebook Post (StarTribune)
Taco Bell Employee Fired After Tweeting Picture of Him Allegedly Urinating onto Nacho Platter (Time) (NBC)
Facebooking About "Naked Twister" May Doom One's Sexual Harassment Claims (Employer Handbook)
How to Protect Your Cloud From Being Hacked (CNN) (CBS)

Technology and the Law
Cybersecurity Bill is Blocked in Senate by G.O.P. Filibuster (NY Times)
Court Prompts Twitter to Give Data to Police in Threat Case (NY Times) (ABA Journal)
Judge's Facebook "Like" Leads to Ethics Complaints (DE Employment Law Blog) (Morning Sun)
Email Addresses of MN Citizens Not Private (La Crosse Tribune)
Facebook Pressured to Remove Page Deemed Racist (CBS)

There's an App for That
Starbucks Teams Up With Square to Offer Mobile Payment (NY Times)
Now You Can Deposit Checks Using the Bank of America iOS App (LA Times)
Help Wanted: Moonlighters for Mobile Apps (WSJ)
FlightTrack Now Offers Free App (CNN)
Tracking Consumer Sentiment? There's an App for That (WSJ)

Wednesday, August 8, 2012

About Those New Social Media Privacy Law Developments...

As we recently noted, Illinois just became the second state to pass a law prohibiting employers from requiring employees or applicants to disclose their social media passwords. This appears to be the latest addition to a growing body of similar legislation, rather than an isolated action. The adoption of this law in Illinois quickly followed the enactment of the first such law by Maryland. Several other states, including California, Michigan, and New Jersey, have similar bills working their way through their legislatures. Additionally, the U.S. Congress continues to consider the Social Networking Online Protection Act, a proposed law that, if enacted, would similarly bar employers nationwide from requiring disclosure of social media passwords by job applicants.

The issue of privacy rights related to information available through the internet has captivated the attention of the public, the media, and politicians alike, as illustrated by a recent Associated Press story highlighting the increasing number of employers who ask for social media account information and make a review of social media a part of the selection process.

What's going on may reflect a generational divide. From my middle-aged, pre-internet point of view, and as a lawyer, I find it almost laughable that someone could claim that the information they choose to share on social media or in other internet communications is private. My 19 year old daughter, on the other hand, who came of age during the social media explosion, is appalled at the thought of "cyber trolling" for information by those who were never intended to be the recipient of information shared via social media. She believes that social media privacy is possible and should be expected. It remains to be seen how legislators, most of whom came of age in the pre-internet era, will shape social media and internet privacy laws, and how the courts will interpret those laws. For now, it looks like legislation that supports privacy is on the increase.

Out in the world, the same generational divide that creates different expectations of privacy may be at work when younger employees post statements on social media sites that are openly critical of their employer. Older generations probably see that as awfully risky behavior, while younger, more internet-fluent employees think of it the same way they think of complaining about the employer at the water cooler or at the bar after work.

When it comes to pre-hiring background checks or other employment-related inquiries, many employers are of the opinion that any information an employee or prospective employee chooses to share in the cyberworld is fair game for consideration and reflects on the author's judgment. Even though that view isn't likely to be shared by younger generations, for now it's a reality. Of course, information-gathering by employers, whether through a formal criminal background check or a quick Google search, continues to be fraught with peril. Publicly available information may have great value to employers, but it is also a source of potential legal exposure, and the acts of gathering and considering it may result in angry employees.

In the end, these legal developments and resulting public discussion serve to underscore the fact that  employers -- and indeed all of us -- are operating in a brave new world and need to proceed with caution. Employers may be well-served in managing their workforce, and attempting to preserve good employee morale, by trying to view the issue of internet privacy rights through their employees' eyes.

Monday, August 6, 2012

FOCUS ON BENEFITS: Year-End Deadline for Employers to Remove Noncompliant Release Provisions in Section 409A-Covered Plans

Do you have employment or severance agreements (or any other deferred compensation plan) that require employees to sign a release, noncompetition or nonsolicitation agreement before post-termination payments are made? If so, you may have a problem, and you may only have until the end of 2012 to avoid potentially significant tax penalties.

Many employment severance agreements (and other agreements providing deferred compensation to employees) require employees to sign a release of claims against the employer before payments are made. Sometimes there is also a requirement that the employee sign a noncompetition or nonsolicitation agreement as a condition of receiving payment.

While such conditions are generally acceptable under federal and state employment laws, the IRS views them as problematic because they can give employees too much control over the timing of payments. The IRS wants to make sure that payments are not timed to minimize or delay tax liability. A noncompliance release or similar term can result in severe tax penalties under Section 409A of the Internal Revenue Code. The good news is that employers still have a chance to bring their agreements into compliance with 409A if they act before the end of the year. Beginning in 2013, noncompliance agreements may be more difficult-- or impossible -- to correct.

Depending on the specific terms of the agreement and timing of the payments that have already been made (if any), correcting an invalid release term may only require a simple amendment or an administrative correction.

Now is a good time for employers to review their employment, severance, and other deferred compensation agreements which are covered by Section 409A. (Many employment and severance agreements are exempt because they, among other conditions, require all payments to be made by the end of the second year after termination.) If any of these agreements require an employee to sign a release or other agreement before payments are made, contact the attorney with whom you regularly work to determine whether corrective action is necessary and what steps must be taken.

In addition, if you have any employment, severance, or other deferred compensation arrangements that were not prepared (or at least reviewed) by counsel in recent years, it would be a good idea to have them reviewed. The IRS has created a program that generally allows employers to voluntarily bring their documents into compliance with reduced or no tax penalties. While some errors may still be corrected after this year, others require action this year to take full advantage of this program.

A copy of the IRS Notice containing this relief can be found here:

Friday, August 3, 2012

Week in Review

The government has been working hard to protect online privacy this week. On the regulation side, yesterday the Illinois governor signed the "Facebook Law," making Illinois the second state to statutorily prohibit employers from compelling employees or applicants to disclose their social media passwords. Additionally, the FTC is working to increase online security for minors by proposing new data-protection rules.

Enforcement efforts are also being stepped up, with prosecutors around the country making examples of internet-using lawbreakers. In Texas, two teenagers are facing felony online impersonation charges for creating a fake Facebook page in a classmate's name. Two online poker sites are paying millions to settle bank fraud and money laundering charges, and a Kent State student was charged with inducing a panic and aggrevated menacing after he allegedly threatened the university and its president via Twitter.

Technology and the Workplace
IL Governor Signs "Facebook Law" Prohibiting Employers From Forcing Passwords (Chicago Tribune)
Former Prosecutor Allegedly Threatened Boss on Facebook, Now Faces Criminal Charges (Above the Law) (Virginian-Pilot)
AT&T Sales Consultant Fired For Off-Duty Facebook Post (Lawffice Space)
At-Work Olympics Viewing Wastes $650M, L.A. Workers Told to Quit Watching While on the Job (MSN) (NBC)
Survey Finds Workers Spend One-Fourth of Workday Reading, Responding to Email (Huffington Post)

Technology and the Law
Two TX Middle School Students Arrested for Online Impersonation After Creating Fake Facebook Page for Classmate (ABA Journal) (NBC) (Ft. Worth Star-Telegram)
FTC Proposes Tougher Rules for Online Child Privacy (NPR)
Senate May Go On Recess Without Passing Cyber Bill (NBC) (FOX)
Kent State Student Charged with Threatening School on Twitter (NBC)
Online Poker Sites Settle U.S. Lawsuit for $731 Million (CNN)
School District to Search Students' Electronics for Sexting (Huffington Post)

There's an App for That
Romney to Announce VP Pick Via Smartphone App (FOX)
Twitter Unveils the Twindex, a New Political Index (NY Times)
The New Essential Apss (Gizmodo)
Google Introduces Handwrite As Mobile Search Tool (LA Times)
12 Great Olympics-Related Twitter Accounts (CNN)