Thursday, November 29, 2012

Week in Review

Usually, our Week in Review posts are full of examples of what can go wrong when employees use social media. This week, we can report a different kind of story. A group of women are harnessing the power of Twitter to promote positive change in the gaming industry. Using the hashtag #1ReasonWhy, these women are speaking out against what they describe as the pervasive culture of sexism in the gaming industry. The question of "why are there so few lady game creators?" has been answered by hundreds of industry professionals, including game developers, journalists, and others. Responders have shared accounts of sexual assault, objectification, hostile work environments, and pay inequality. The women who launched this movement says that their effort has brought about awareness to the problem and offers solidarity and hope to its participants. As a result many mentorship programs have already begun to pop up.

Elsewhere in the country, the struggle goes on to define privacy in a digital world. Thousands of Facebook users attempted to "copyright" their content via a generic status that was full of legalese and not at all enforceable. (Per Facebook's user agreement, you already own your content, but Facebook has the right to use it, so no "copyright" is possible). On the governmental side, the Senate Judicial Committee is considering proposed revisions to the Electronic Communications Privacy Act, and the U.S. Supreme Court has denied cert to a case challenging the Illinois law that prohibits individuals from recording police officers on the job.

Technology and the Workplace
Women Use Twitter to Expose Video Game Industry Sexism (NBC) (Forbes)
Employee Terminated for Facebook Message Fails to State Public Policy Claim (Technology and Marketing Law Blog)
Facebook Hacks Its Employees to Teach Lessons on Cyberattacks (Mashable)
How Teachers Use Skype in the Classroom (TIME)
NJ Journalist Uses Only Facebook to Win Local Election (Huffington Post)

Technology and the Law
Viral "Facebook Privacy Notice" is a Hoax (CBS)
Courts Divided Over Searches of Cellphones (NY Times)
Your Digital Legacy: States Grapple With Protecting Our Data After We Die (TIME)
Support Builds for Revising Email Privacy Protections (FOX)
Supreme Court Rejects Plea to Prohibit Taking of Police in IL (Chicago Tribune) (ABA Journal)

There's an App for That
App Helps Warring Ex-Spouses Work Out Custody Differences, Even Email and Texting Lessen Conflict (NY Times) (ABA Journal)
Polar App is the Ultimate Tool for Indecisive People (Mashable)
iTunes Inches Further Towards the Cloud (WSJ)
Retina Implant Instantly Turns Text Into Braille (Mashable)
Best Apps for Saving Money (Rolla Daily News)

Wednesday, November 28, 2012

The U.S. Supreme Court Hears Argument on Who Constitutes a Supervisor Under Harassment Law

The U.S. Supreme Court heard oral arguments on Monday in Vance v. Ball State University, a case that could create a more uniform legal standard for determining when an employee is a supervisor under federal harassment law.
 Fourteen years ago, the Supreme Court ruled that employers can be held strictly liable for sexual harassment and other forms of unlawful harassment by a supervisor. When a supervisor engages in unlawful harassment that results in a tangible, adverse action against an employee, an employer is automatically liable for that harassment. In contrast, employers are only liable for unlawful harassment by a non-supervisor when the employer knows or should have known of the harassment and fails to take prompt and appropriate action to stop the harassment.
In the years following the Supreme Court’s strict liability ruling, federal appellate courts have been divided over who constitutes a “supervisor.” Some courts have held that a “supervisor” is an individual with the power to fire, hire, demote, promote, transfer, or discipline an employee. This approach has the advantage for employers of being a bright-line test that is more predictable and easier to apply in determining which employees pose more legal risk for employers and need management-level training on their anti-discrimination and anti-harassment obligations.
Other courts, however, have adopted the Equal Employment Opportunity Commission’s broader definition and have found that a “supervisor” includes an individual with the authority to direct daily work activities, like making work assignments, or to recommend employment actions. Advocates of this broader definition argue that it a more appropriate standard given the evolution of workplace practices. They argue that workplaces have become less hierarchal and more collaborative, blurring distinctions between supervisors and lower-level workers and leading to more workers having power and authority over others even without the ability to hire or fire someone.
The Supreme Court may resolve these conflicting standards in the Vance case. The Vance case involves racial harassment claims brought by a university catering employee. The critical issue before the Supreme Court is whether one of the individuals that allegedly harassed the claimant was a supervisor. This individual had similar duties to the claimant, but did not have to clock in or out like the claimant and had authority to determine if daily tasks were being completed by the claimant. The individual did not, however, have any hiring or firing authority over the claimant.
If the Supreme Court adopts a broader definition of “supervisor,” employers could face an increase in harassment claims and strict liability exposure. This will mean, more than ever, that employers need to ensure that they have strong anti-harassment policies and measures in place and that they are adequately training all supervisors on their anti-harassment and anti-discrimination obligations. We will be tracking the outcome of the Vance case and updating you when the Court rules on the case, likely sometime before next June.

Wednesday, November 21, 2012

Week in Review

Happy Thanksgiving! I hope all of you out there are enjoying good food and even better company. But, in case you need a welcome distraction from intense family bonding (or Black Friday strategizing), here's what is new in the world of technology and the workplace:

In an EEOC sexual harassment suit against HoneyBaked Ham, Co., a district court judge has ruled that the plaintiffs must turn over their cellphones and social media passwords to a court-appointed forensic expert. This expert is charged with going through text messages and social media content to determine what is relevant -- and thus discoverable -- in the case. The defendant alleges such content includes highly relevant information on the lead plaintiff, such as her thoughts on how much money she is expecting from the suit, her self-described sexual aggressiveness, insights into her emotional state, and a picture of her wearing a shirt with a word the suit claims was offensively used against her.

Elsewhere around the country, a number of employees have been put on unpaid leave for inappropriate social media posts. In Kansas, a court research attorney was suspended for tweeting disparaging remarks about former Attorney General, Phill Kline, during his ethics hearing. In Massachusetts, a woman is facing a firestorm -- in addition to suspension -- for a Facebook picture she posted while on a work trip to Arlington National Cemetery. The picture is of her at the Tomb of the Unknown Soldier, standing next to a "Silence and Respect" sign, sticking up her middle finger and pretending to yell. While she claims she "meant no disrespect," over 20,000 people on Facebook have banned together to try to get her fired. Just one more reason to think twice before "expressing yourself" on Facebook (or Twitter, LinkedIn, Myspace, or any other social media site).

Technology and the Workplace
Plaintiffs in EEOC Suit Must Turn Over Cellphones and Facebook Account Passwords, Judge Rules (ABA Journal) (NBC)
KS Court Staffer Suspended Over Kline Tweets (AP) (ABA Journal)
MA Woman Takes Photo at Arlington National Cemetery, Causes Fury on Facebook (Huffington Post)
Alliance Bernstein Can't Have Ex-Advisor's iPhone, Court Stays (Law 360)
Porn Now a "Global Phenomenon," Increasingly Fueled by People Watching at Work (Huffington Post)

Technology and the Law
Suit Contests Limits on Online Activities of Sex Offenders (NY Times)
Anonymous Declares "Cyberwar" on Israel (CNN)
Google Judge Accepts $22.5M FTC Privacy Settlement (Bloomberg)
BBC Sex Abuse Scandal: Can You Get Sued Over a Tweet? (CBS)
Reddit is Literally Writing Our Laws Now (Atlantic Wire)

There's an App for That
Dating Website Allows You to Screen Out the Republicans (Or Democrats) (Jezebel)
Get Instagram Prints from... Walgreens (NBC)
Mobile App Helps Soldiers Battle PTSD (FOX)
Customize Your Car Trip with Roadtrippers App (NBC)
Black Friday: 5 Apps to Maximize Deals, Stay Organized During Shopping Rush (ABC)


Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved.  Oregon voters defeated the initiative in their state.  

What does this mean for employers doing business in states where recreational marijuana use is now legal? It’s a little too early to tell, it seems, although it appears that at least in Washington, employers can continue to enforce their drug use and drug testing polices as before, at least for the time being.  Our Washington partner in the Employment Law Alliance, Miller Nash, has posted a helpful analysis for employers who have employees working in Washington.   

The present conclusion for Washington employers appears to be that there is no  need to change policies or enforcement practices based on the new law. Marijuana is still illegal under federal law, and it remains to be seen how the interplay between the state and federal law will work out in Washington.  Federal DOT regulations prohibiting driver use of marijuana have not been altered.

The situation for employers in Colorado is less clear. Although the state has permitted medical marijuana use since 2000, that law does not allow employees to use at work. A closer and more contentious question under the Colorado medical marijuana law has been whether employers may prohibit employees who use marijuana off-duty for medical purposes from being under its influence at work. 

Amendment 64, the newly passed Colorado law permitting recreational use, does not provide guidance on that issue but does have provisions that address employers' rights. These allow employers to: i) prohibit, and decline to accommodate, use at work; and ii) prohibit and regulate the "possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana" on their property. Our Employment Law Alliance friends at Holland and Hart in Colorado have explained this in greater detail. 

Those with Colorado employees may be at higher risk with respect to workplace enforcement in the context of employees’ claimed recreational use. It seems doubtful, however, that the courts will ultimately protect an employee against enforcement of employer policies based on legitimate concerns about safety or performance. 

In Oregon, where the legalization measure failed, and in most of the rest of the country, employers can continue business as usual with respect to drug use, testing and enforcement in the workplace. That appears to remain a relatively safe bet for employers with employees in Washington, too. Colorado may require a more cautious approach. 

Thursday, November 15, 2012

Week in Review

It seems General Petraeus isn't the only one whose digital footprint has betrayed him. A whole host of other individuals' online antics have landed them in hot water this week. Waffle House Chairman, Joe Rogers, Jr. is also facing a sex scandal. His former housekeeper has come forward with sex tapes which she alleges are proof that she was sexually harassed. Rogers denies the harassment and says that he is being blackmailed. A district court has ordered that the tapes be impounded -- for now.

In Kentucky, a couple of Walmart employees were fired based on an internet video of them throwing iPads around the stockroom. Reports are conflicting as to whether the employees were also prosecuted for the damage caused. Elsewhere in the country, a Minnesota high school girls' basketball coach was suspended for allegedly sending an inappropriate tweet directed at one of his students. The school didn't have a social media policy, but did have an acceptable-use policy for teacher-student interactions which the school claimed the tweet violated.

Technology and the Workplace
What the Petraeus Scandal Says About Digital Spying and Your Email (CNN)
Walmart Fires Employees Who Smashed iPads on Video (PC Mag) (NBC)
HoneyBaked Granted Social Media Discovery In EEOC Suit (Law 360)
Products Aim to Make Working in Bed More Comfortable (ABA Journal) (WSJ)
MN High School Girls' Basketball Coach Suspended for Lewd Tweet (Star Tribune)
Waffle House Chairman Sex Tapes Impounded by Court (ABC)

Technology and the Law
Man Jailed for Charging Cellphone in Park Area of City that Offers Free Charges for E-Cars (ABA Journal) (Herald Tribune)
Petraeus Probe Highlights Holes in Outdated Wiretapping Laws (Law 360)
Google: "Government Surveillance on the Rise" (CNN)
Obama Signs Security Cyber-Operations Guidelines (NBC)
Senate Fails Again to Advance Cybersecurity Bill (NBC)
Papa John's Faces $250M Spam Lawsuit (CNN)

There's an App for That
Facebook Launches Job Search App (CNN)
Cellphone's New Calling: Helping You Quit Smoking (NBC)
Holiday Shopping Essential: Black Friday Apps (Washington Post)
7 Travel Apps for Thanksgiving and Holiday Travel (Huffington Post)
Yapp: Make Your Own iPhone and Android App with an App (ABC)

Wednesday, November 14, 2012

Remind Employees to Think Twice Before Hitting Send

It’s hard to watch or read the news without being bombarded with the story of General Petraeus’ affair and resignation. The story has expanded beyond General Petraeus’ conduct to include allegations of inappropriate conduct by an FBI agent involved in the investigation (sending a shirtless picture of himself to Jill Kelley) and General John Allen (exchanging thousands of possibly "inappropriate" emails and other documents with Jill Kelley). As an employment lawyer, I’m continually amazed at the personal content that employees will send in emails and text messages, even from their company email addresses. Employees still like to think that the emails they send while at work or from their work email address are private, or that the odds are against anyone ever looking through their emails. Let me tell you, as someone who has spent countless hours reviewing emails during an investigation or in the course of litigation, the odds aren’t that good and those emails aren’t private. 
General Petraeus’ problems should remind employers to check their technology policies. Make sure that policies contain clear and prominent warnings about the fact that email and other technology use is not private and that the company has a right to search and review electronic communications sent from company property. Employers should also spend time training and reminding employees of their policies. It wouldn’t hurt to give some good hypothetical examples. When I do training, I tell employees that if they wouldn’t be comfortable with an email being posted on the company’s bulletin board, being read by a room full of attorneys, or being blown up and shown to a jury, they probably shouldn’t send it. Even if the recipient of the email would be fine with the content, employees need to think twice before they hit send because you never know who might be reading it at a later date.
Finally, a brief word of caution to employers. Even if you have a well drafted policy that reserves the right to review emails, it’s best to have a good reason for doing so. Some judges and juries still think that an employee should have some right to privacy. In addition, to avoid claims of retaliation or discrimination, make sure that any practice of monitoring emails is applied uniformly.

Thursday, November 8, 2012

Week in Review

Does an employee who violates an employer's computer use policy also violate the Computer Fraud and Abuse Act? Depends on who you ask. The Fourth Circuit recently held that an employee cannot be held liable under the CFAA for such conduct, even if the employee was improperly using computer access to steal company data. There are a number of circuits that disagree, however. Now, WEC Carolina Energy Solutions, the employer in the Fourth Circuit case, is asking the U.S. Supreme Court to weigh in on the issue. Stayed tuned to see if the Court agrees to get involved.

Other news stories this week have examined election-related uses of technology and ways in which President Obama's second term may be influenced by technological changes. One Georgia woman demonstrated that offensive use of social media during the election, even while off-duty, can get a worker fired. Other individuals learned that it may not be the best idea to post a picture of your ballot online, since some state laws expressly prohibit ballot disclosure. Looking ahead, political analysts question how President Obama will handle growing technology issues, such as cybersecurity and spectrum shortages.

Technology and the Workplace
Employer Petitions U.S. Supreme Court to Resolve Computer Fraud and Abuse Act Circuit Split (Trading Secrets)
Female Cop Gets $1M After Colleagues Trolled Database to Peek at Her Pic (Wired)
Clinic Worker Fired Over Facebook Post Referring to Obama as the "N-Word" (11 Alive News)
8 Types of Technology That Will Be Essential in the 2015 Workplace (Huffington Post)
Experts Raise Concerns Over Superhuman Workplace (Yahoo)

Technology and the Law
Can False Hurricane Tweets Spur Prosecution? Legal Experts See Some First Amendment Hurdles (ABA Journal) (WSJ)
Tweeted Your Ballot? You May Have Broken the Law (CNN)
The Real Iranian Threat: Cyberattacks (CNN)
CA Man Behind Anti-Muslim Film Gets Prison (ABC)
Focus of FCC in Second Obama Administration: More Spectrum (NY Times)
Top 5 Tech Initiatives for Obama's Second Term (FOX)

There's an App for That
Can't Stop Texting and Driving? These Apps Can Help (LA Times)
Ride-Sharing Apps for Frustrated Commuters (NBC)
Want to Stalk Your Dog? There's an App for That (Huffington Post)
Take Smarter Notes with Livescribe's Sky Wi-Fi Pen (Washington Post)

Wednesday, November 7, 2012

Tips for Ensuring At-Will Disclaimers are At Their Best

In follow-up to my colleague Abigail Crouse’s blog post last week about the unsettled law regarding at-will disclaimers, this week’s post will include tips on drafting at-will disclaimers that do not violate the NLRA.  For background, here is the NLRB’s advice on several specific at-will disclaimers.

“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
“No representative of the Company has authority to enter into any agreement contrary to the foregoing employment at will’ relationship.”
“No manager, supervisor, or employee of Rocha Transportation has any authority to enter into any agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the Company has the authority to make any such agreement and then only in writing.”
NLRB Guidance
Unlawful under NLRA § 8(a)(1)
Lawful under NLRA § 8(a)(1)
Lawful under NLRA § 8(a)(1)

Although the NLRB admits that “the law in this area remains unsettled,” the following tips can help ensure that your at-will disclaimer could not reasonably be construed to restrict your employees’ collective bargaining rights.
1.     At-will disclaimers should not indicate that an employee can never change her at-will employment.
2.     At-will disclaimers should not require employees to refrain from seeking to change their a-will status.
3.     At-will disclaimers should indicate that the President (or applicable administrator) has the authority to change the employment agreement.
4.     At-will disclaimers should reflect the truth — make sure they accurately convey which supervisor may modify the at-will employment agreement.
5.     In an Acknowledgement Form, employees should not be asked to agree that their employment agreement cannot be changed in any way.
All employers, not just unionized employers, should continue to review their at-will disclaimers and consider potential labor law risks.  While the recent flurry of advice memos has provided some much-needed guidance to employers, the realm of at-will disclaimers is still in flux and employers should continue to keep updated on the latest NLRB guidance.

Monday, November 5, 2012

Navigating Election Day in the Workplace

Election Day is almost upon us. The good news is that election ads and calls will soon be over.  For employers, however, one last challenge remains as they figure out how to deal with the many workplace issues surrounding elections.  For an overview of the potential free speech, labor law, social media, and voting leave implications for the workplace, please read my colleague Angela Rud’s post from last month.

Friday, November 2, 2012

Week in Review

Do you feel like all you ever do is work? Odds are, your personal devices are contributing to that feeling. A recent study by a British tech retailer found that smart devices are adding, on average, an extra two hours of work a day. So while that constant connection may give some peace of mind, it's also likely to bring with it the inability to ever be "off-duty."

Given the large role technology plays in our lives, it is not surprising that governments around the country have been working to figure out how to appropriately balance its risks and benefits. On Friday, the New Jersey Senate passed a social media bill, which prevents employers and colleges from obtaining online passwords. On Monday, the United States Supreme Court considered who has standing to challenge the Foreign Intelligence Surveillance Act, a wiretapping law that gives the government broad surveillance powers. Additionally, reports indicate that the Senate will likely reconsider cyber security legislation when Congress reconvenes after the election.

Technology and the Workplace
NJ Senate Approves Bills on Social Media, Employers (CBS)
4th Circuit Email Privacy Case Hinges on Employer's Policy (Law 360)
When is a Domain Name Protected Speech? (WSJ)
Smartphones Extend Our Workday by Two Hours (Mashable)
Police Chief Could Lose Job Over Email Span Filter Fail (San Francisco Chronicle)

Technology and the Law
Supreme Court Weighs Challenge to Eavesdropping Law (Reuters)
Woman Sues Apple Over Smart Devices, Says She Never Agreed to Have Location Data Tracked and Stored (ABA Journal)
Man Faces Fallout for Spreading False Sandy Reports on Twitter (CNN)
Senate Likely to Revisit Cyber Bill When Congress Returns (Yahoo)
Ramsey County Project Will Use GPS on Stalkers (Star Tribune)
Conviction Reinstated for Neo-Nazi Who Posted Juror's Photo and Address (ABA Journal)

There's an App for That
Five Ways to Keep Your Phone Charged in a Power Outage (CNN)
Butterball Hotline Goes High-Tech With Smartphone App (NBC)
Best Apps for DYI Enthusiasts (Huffington Post
Can Your Tweets Predict Your Vote? (FOX)
iPhone App That Finds Racy Facebook Photos Raises Privacy Worries (LA Times)

Thursday, November 1, 2012

Not so frightening Halloween Surprise from NLRB

In August, I wrote about NLRB decisions which found that certain at-will disclaimers in employee handbooks were unfair labor practices. In a Halloween surprise, the NLRB has now provided some not-frightening news for employers in the form of guidance on at-will disclaimers that do not violate the NLRA. 

The Board has now advised that the following disclaimer was lawful under the NLRA: 

Employment with [the Company] is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of [the Company] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.
The NLRB notes that this clause explicitly indicates that the at-will relationship can be changed, so employees would not reasonably assume that they do not have a right to organize collectively to change their at-will status. Thus, says the advice memo, the disclaimer did not violate labor laws.

Another advice memo found that the following at-will disclaimer did not violate the NLRA:

The relationship between you and [the Company] is referred to as “employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.
This advice memo stated that “the provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. Instead, the provision simply highlights the Employer's policy that its own representatives are not authorized to modify an employee's at-will status."

Employers should continue to look carefully at their at-will disclaimers and consider labor law risks.  We'll post again soon with some tips about how to keep at-will disclaimers from becoming a problem. The good news for now is that the NLRB has supplied some much needed clarity for employers about the type of handbook disclaimers it will find acceptable.