Thursday, January 31, 2013

Week in Review

Have you heard the saying, "Drink more coffee, do stupid things faster with more energy?" Along those lines, I think the theme of this week's events is "Use technology, do stupid things faster with greater ease."

Example #1: the DNR employee who accessed more than 5,000 driving records without authorization. This could prove to be a costly mistake, because one of the data-breach victims has filed a potential class action lawsuit against the (now ex) employee, the DNR, the Department of Public Safety, and commissioners of those agencies.

Example #2: the HMV employee who hijacked the company's Twitter account to protest the large layoffs announced this morning. Local media were able to capture the angry tweets before the company had a chance to regain control of the account and delete the unwanted activity. The fallout from these actions? HMV will have to deal with the embarrassment and negative publicity, and the employee might have trouble finding another job if his or her identity is ever discovered.

Let this serve as a lesson for us all: the faster and easier technology makes communication, the more important it is to take a step back and think before hitting that send button.

Technology and the Workplace
MN Man Sues DNR Over Data Breach (MPR)
Sure Way to Get Fired: Post "I Wish I Could Get Fired Some Days" On Facebook (Mashable) (KTVK)
WA Bill Halts Employers Access to Social Media Content (Law 360)
Too Hot For Twitter? Teacher's Naughty Tweets Land Her in Hot Water (Huffington Post) (NBC)
HMV Employees Commandeer Corporate Twitter Account in Response to Layoffs (Business Week)

Technology and the Law
Do Privacy Rights End at the Brothel Door? Judge Dismisses Taping Charges in Zumba Case (ABA Journal) (Portland Press Herald)
Woman Sues Match.com After Date Stabs Her (Mashable)
Facebook Sends Most of America an Offer to Settle a Class Action Lawsuit for $10 (Above the Law) (CNN)
Double Trouble: iPhone Thief Busted When His Stolen iPhone is Stolen Again (NBC)
Self-Driving Cars Could Ease Insurance Burden (WSJ)

There's an App for That
Using a Smartphone to Keep Track of the Pennies (NY Times)
Can Smartphone Apps Break Bad Habits? (Mashable)
"Boyfriend Trainer" App Encourages Users to "Whack" Boyfriends into Shape (FOX)
11 Bizarre Facebook Apps You Won't Believe (Mashable)

Wednesday, January 30, 2013

Employers Must Provide a Private Place to Pump

Recent Department of Labor statistics indicate that the majority of employers who have breached Fair Labor Standards Act ("FLSA") provisions related to breastfeeding mothers have failed to provide an appropriate space for new moms to express milk. The FLSA was amended by the 2010 Patient Affordable Care Act to require employers to provide reasonable break time and a private space for a nursing mother to express milk for one year after the child's birth. All employers are expected to comply with the law, but employers with fewer than 50 employees are not subject to the requirements if compliance would impose an undue hardship.  Whether the employer faces an undue hardship is decided on a case-by-case basis.

It is not clear from the Department of Labor's statistics whether employers have failed to provide a place at all, or if they have failed to provide an appropriate space. The law mandates that the designated place be "shielded from view and free from intrusion by coworkers and the public." The law specifies that the place provided cannot be a bathroom. Although some bosses may be surprised that sending an employee to a bathroom stall is not an option, it has not been an option in Minnesota for some time.

Minnesota law has long required employers to make accommodations for breastfeeding mothers. State statute requires all employers to provide "reasonable unpaid break time" to nursing mothers, as long as doing so does not unduly disrupt the employer's operations. Employers must also "make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in privacy." Minnesota law would probably allow an employer to design a private, single bathroom with no stall and a locking door. Not so under the FLSA.

Employers who haven't already done so should think about designating a space specifically for this purpose, or at least consider what space(s) could be temporarily re-purposed when the need arises. Some workplaces have a small room set aside where employees may privately pump. Another option might be an empty office with a locking door. And while the statute doesn't require it, a comfortable chair and a mini-fridge would probably be most welcome.

Friday, January 25, 2013

Week in Review

Do you have a constitutional right to Facebook? Maybe, according to the 7th Circuit. Yesterday, the appellate court struck down an Indiana law which prohibited sex offenders from joining social media sites. Citing the broad language of the ban, the court held that it was an impermissible violation of sex offenders' First Amendment rights.

Speaking of the First Amendment, earlier on Thursday, a French judge found that Europe's ban on hate speech trumps America's free speech guarantees. The suit was over whether Twitter needed to hand over the identities of people using anti-Semitic hashtags. The court answered in the affirmative and ordered Twitter to produce the information within two weeks or face fines of $1,336 per day.

Just when you think courts -- and employers -- are getting a handle on what constitutes protected speech online, social media evolves. The newest twist? Facebook's Graph Search. This application allows users to categorize people based on things they have in common, such as, whether or not they "like" racism, or who they work for -- and all of a sudden, there's a graph out there ranking employers based on who has the most employees who like racism (or some other negative attribute). It's too early to tell what employers, employees, the media, or courts will make of such an application, but it seems to be worth watching.

Technology and the Workplace
Even If It Enrages Your Boss, Social Net Speech is Protected (NY Times) (Forbes)
New App Promises to Sanitize Your Employees' Facebook Pages (LA Times) (Employer Handbook)
"Current Employers of People Who Like Racism"... and More Actual Facebook Graph Searches (The Atlantic)
Ohio Teacher Faces Review Over Picture of Duct-Taped Students (LA Times) (MStars)
Boss Gets Fired After She Busts Employees on Facebook (DE Employment Law Blog)

Technology and the Law
Facebook Ban for Sex Offenders is Overturned by 7th Circuit (ABA Journal) (NBC)
Unlocking Cellphones Becomes Illegal Saturday in the U.S. (Mashable)
French Court Orders Twitter to Identify Racist and Anti-Semitic Users (ARS Technica) (NPR)
Google Transparency Report Shows Government Snooping Up (Huffington Post)
Why Internet Imposters are Difficult to Prosecute (ABA Journal) (WSJ) (NBC)

There's an App for That
New App Points the Way Toward a Better Signal, Free Wi-Fi (NBC)
Can a Smartphone App Really Detect Skin Cancer? (Mashable)
Apps and Other Digital Tools Lend a Hand to New Mothers (NY Times)
This Cooking App Will Be Your Best Friend in the Kitchen (Mashable)

Wednesday, January 23, 2013

Minnesota Approves Preferential Hiring of Veterans


Here at The Modern Workplace, we have often cautioned employers to be very careful when hiring to avoid claims of discrimination. In particular, we have cautioned employers about using an employee’s class (such as gender, race, etc.) when making a hiring decision. Our advice may be different, at least in Minnesota, if the class of workers involved is veterans or their spouses.

During the last legislative session, the Minnesota Legislature enacted a new law which allows private employers to offer favorable treatment to veterans and their spouses in the hiring process.  The new statute (Minn. Stat. 197.4551) permits employers to grant a preference in hiring and promotion to a veteran, the spouse of a disabled veteran who has a service connected permanent and total disability, or the spouse of a deceased veteran. The statutory change appears to be consistent with recent actions taken by the federal government, state governments, and private employers to promote the hiring of veterans as discussed in a recent blog post.

For years, public sector employers have been required to give veterans and spouses of disabled veterans preferences in hiring under the Veteran’s Preference Act (Minn. Stat. 197.46).  Unlike the Veteran’s Preference Act, this new law affecting private employers does not require preferential treatment of veterans; rather, it protects employers who offer preferential treatment from liability. In particular, the new law states that the granting of a preference under the statute does not violate any local or state equal employment opportunity law, including the Minnesota Human Rights Act. 

Nonetheless, employers should not rely solely on the protections afforded under this new state statute when making a hiring decision. The new statute does not, and cannot, be used to defend a claim of discrimination based on a federal statute (such as Title VII). Therefore, before making any hiring decision, employers should be careful to analyze all the surrounding circumstances to insure that unlawful discrimination is not a factor.

Thursday, January 17, 2013

Week in Review

The 1st Amendment protects freedom of speech, but that doesn't mean that employees' speech is always protected from employment consequences. Case in point: the tenured New Jersey first-grade teacher fired for referring to her students as "future criminals" in a personal Facebook post she wrote at home in her free time. The teacher challenged her termination on 1st Amendment grounds and appealed to the New Jersey Court of Appeals. The court recently rejected the 1st Amendment claim, finding that her "personal dissatisfaction" with her job did not address a matter of public concern--which could have made it protectable free speech--, and that, even if it had, the district's interests in efficiently operating the school outweighed any interest the teacher had in Facebooking her opinions.

Contrary to what employees may think, the right to free speech is not absolute, particularly in the workplace. Employers may take employment action in response to employees’ speech and social media communications in certain circumstances.

Several news stories emerged this week regarding other public employees who ended up on the wrong side of Facebook. An Arkansas first responder was let go after she criticized the city's emergency response policies and practices on Facebook. The termination was appealed -- and rejected -- by the city council, and there isn't word yet on whether any legal action will ensue. Down the road in Kentucky, a school bus driver was fired after engaging in a heated private-message exchange on Facebook with a student she believed was bullying her son. She is now suing the school district in federal court, alleging that her free speech, equal protection, and due process rights were violated. Stay tuned to see if the Kentucky court agrees.

Technology and the Workplace
Teacher's Facebook Firing Upheld by N.J. Appellate Court (DE Employment Law Blog) (Employer Handbook)
School Bus Driver Comments on Facebook Get Her Fired, Fuels Lawsuit (Employer Handbook)
Quitman City Council Upholds Firings to Volunteer Employee After Facebook Post (Arkansas Matters)
7 Ways Mobile Apps Are Driving Revenue for Business (Mashable)
How to Win Business: Stalk Your Client on LinkedIn (CNET)

Technology and the Law
TX Civil Liberties Advocates Seek Limits on Law Enforcement Tracking Cellphones (Dallas News)
Deaf Woman's eBay Complaint Highlights Dispute Over Web Access for Disabled (CNN)
FBI to ACLU: Nope, We Won't Tell You When or Why We Track You (ARS Technica)
New "Aaron's Law" Aims to Alter Controversial Computer Fraud Law (CNET)
Filming Police Encounter... A HIPAA Violation? (Lawffice Space)

There's an App for That
DuiCam App Helps Catch Drunken Drivers (Tech News Daily)
"Monster" App Rewards Kids for Doing Chores (NBC)
OkCupid Launches "Crazy Blind Date" App (CBS)
Call Friends for Free with Facebook Messenger App (Mashable)
The Anti-Surveillance Clothing Line That Promises to Thwart Cell Tracking and Drones (Slate)

Wednesday, January 16, 2013

Thank a Vet--Give Them a Job

They served their country, and now businesses want to return the favor. Yesterday, Wal-Mart announced one of the largest veterans' preference initiatives of all time. Starting Memorial Day, 2013, the mega-retailer is promising to give a job to any veteran who has been honorably discharged within the preceding 12 months. The initiative is expected to employ over 100,000 veterans in the next five years.

Employing veterans is not only good for the veterans; it can also be good for business. It can provide financial rewards through various tax credits, such as the Returning Heroes Tax Credit (up to $5,600 per veteran hired) and the Wounded Warriors Tax Credit (up to $9,600 per veteran with service-related disabilities). It generates goodwill in the community and can form the basis of positive public relations. Additionally, such initiatives can bring in highly disciplined and dedicated workers who have leadership and teamwork skills and are able to learn quickly and perform well  under pressure.

While employers of members of the uniformed services probably know that these individuals are protected by the same employment laws as other employees--such as the Fair Labor Standards Act, the Family Medical Leave Act, and Americans with Disabilities Act-- employers might not know about the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA prohibits employer discrimination against past or present members of the uniformed services.  In addition, under USERRA, members of the uniformed services must be granted unpaid leave for up to five years for active duty and are generally entitled to reinstatement in their previous position if they reapply promptly after finishing active duty.  Employers of past and present members of the uniformed services should ensure that their handbooks and policies account for USERRA’s provisions.

Along with Wal-Mart’s public push to employ more veterans, small businesses around the country are seeking to hire more veterans.  With the winding down of the war in Afghanistan, more and more veterans will be returning home in the coming months, so it is likely that more  employers will be adopting veterans’ preference initiatives.  For this reason, all eyes will be on Wal-Mart in the next year as they implement their large-scale program.

Thursday, January 10, 2013

Week in Review

This week in three words: hacking, tracking, and attacking.

Hacking: as if worrying about having your cell phone or computer hacked wasn't enough, now recent research from Columbia University indicates that your office phone might also be at risk. The study discovered that at least 15 models of the Cisco Internet Protocol telephone have software that could enable a hacker to turn on a microphone, webcam, or other feature of the phone without the user's knowledge.

Tracking: a Texas school using Radio Frequency Identification chips to track its students may continue doing so after a district court rejected one student's attempt to enjoin the practice based on religious concerns.

Attacking: two New Jersey county workers have filed suit attacking their employer's social media policy, claiming that it violates their First Amendment rights. Also, Dallas Mavericks owner Mark Cuban was fined $50,000 for his Twitter "attack" of NBA officials after the Mavericks' 3-point loss last Saturday.

Technology and the Workplace
NJ County Workers Say Social Media Rules Curb Free Speech (Law 360)
The Right Way to Destroy Sensitive Data (Bloomberg)
Popular Office Phones Vulnerable to Eavesdropping Hack, Researchers Say (NBC)
Tweet Costs Mark Cuban $50k (CNN)
AP Sells First Sponsored Tweet to Samsung (CBS)

Technology and the Law
CA Suggests Mobile App Privacy Guidelines (NY Times)
Facebook Drunk Driving Confession Leads to Arrest (CBS)
Student Loses Lawsuit Challenging Texas RFID Tracking Program (Slate)
Anonymous Petitions U.S. to See DDoS Attacks as Legal Protests (CNET)
Library of Congress Digs into 170 Billion Tweets (CNN)

There's an App for That
"Drinking Mirror" App Aims to Show How Alcohol Ages You (CNN)
Dead Phone? Just Put It on Your Tablet to Charge (ABC)
App of the Week: Watermark Your Photos (Yahoo)
LED Ice Cubes Detect Alcohol, Tell You When to Stop Drinking (Huffington Post)
U.S. Franciscan Friars Accept Prayer Requests Via Text (CBS)

Wednesday, January 9, 2013

A Choice to Carefully Consider: Civil Suits or Arbitration?

“Class action” can be a scary term for any employer. During the past decade, the number of wage and hour class actions brought against employers by large groups of employees claiming violations of wage and hour laws under the Federal Labor Standards Act (“FLSA”) has increased dramatically. These cases, also known as “collective actions” are expensive and time consuming to defend. For more than two decades, employers have increasingly relied upon mandatory arbitration agreements in an effort to reduce the risk of class action claims. These agreements require employees to waive their rights to pursue employment claims in court, and instead bind the employees to arbitration of individual claims. Mandatory arbitration agreements are also frequently used by consumer products and services companies as a tool to avoid large class actions brought by multiple customers or users. A recent Wall Street Journal article about Facebook-owned Insta-Gram’s  mandatory arbitration clause highlights this trend. 
Just this week, the Eighth Circuit Court of Appeals which covers all employers in Minnesota, upheld an employer’s mandatory arbitration agreement that precluded an employee from pursuing FLSA claims in court, including participation in any class action. In Owen v. Bristol Care, Inc., (8th Cir., January 7, 2013), the Court declined to follow a recent high-profile ruling by the National Labor Relations Board (“NLRB”), D.R. Horton, which held a class waiver unenforceable in a similar FLSA challenge. The NLRB had concluded that such a waiver conflicts with federal labor laws that protect employee rights to engage in “protected concerted activity.” The Eight Circuit rejected this reasoning, noting that the agreement at issue before them did not preclude an employee from filing a complaint with a government agency such as the Department of Labor (which has jurisdiction over FLSA claims), the Equal Employment Opportunity Commission, or the National Labor Relations Board. The Court pointed out that those agencies have the authority to investigate and file lawsuits on behalf of a class of employees. The Court joined five other federal courts of appeals that have considered this same issue and concluded that arbitration agreements containing class waivers are enforceable in FLSA cases. Not every court of appeals has decided this issue, however, so the law on this point is still unsettled in some jurisdictions.
This case gives employers in Minnesota a “green light” to use mandatory arbitration agreements as a tool to limit the risk of expensive wage and hour class action litigation. Before jumping on the arbitration bandwagon, though, consider your options. In arbitration both parties to a conflict are giving up the right to have a judge or jury decide their claims. In some situations, an employer may want to preserve its own right to have the claims decided in court. These types of agreements have many advantages, but they are not the best approach for all employers. They must be carefully drafted and consistently used across an enterprise in order to be most effective. As with most employment-related practices, there is no “one size fits all” approach to using arbitration agreements with employees. 

Thursday, January 3, 2013

Week in Review

This week, states across the country were determined to start off the new year with their best foot forward. High on their lists of priorities? Protecting the rights of online users. In Michigan, the Governor signed into law the Internet Privacy Protection Act, which made Michigan the fifth state (behind Maryland, Illinois, California, and New Jersey) to prohibit employers from requesting social media sign-in information from their employees. In Arizona, the legislature is considering a bill that would make it a felony to threaten, harm, or defraud someone through online impersonation. In Virginia, the state supreme court reversed a lower court's ruling which required the removal of negative Yelp comments from a contractor's page. The court found such censorship a violation of the First Amendment.

Technology and the Workplace
Michigan Enacts Social Media Password Privacy Bill (Detroit News) (DE Employment Law Blog)
Virgina Court Says Comments on Yelp Should Not Be Squelched (Public Citizen) (NBC)
Telepresence Robots Let Employees "Beam" Into Work (CBS)
"Ubuntu for Phones" Turns Smartphones Into Desktop PCs (Yahoo)
Florida Deputy Fired for Claiming to be Giorgio Armani on Facebook (Sun Sentinel)

Technology and the Law
Obama Signs Renewal of Foreign Surveillance Law (CBS)
Have a Beef With Instagram? A Civil Suit Might be Off Limits (WSJ)
Feds Issue $50k Challenge to Terminate Robocalls (Tech News Daily) (FTC)
Arizona Set to Make Online Impersonation a Felony (Ars Technica)
Write Gambling Software, Go to Prison (Wired)

There's an App for That
Foursquare to Show Users' Full Names, Share More Data (CBS)
Subway's App Future Arrives for Some (WSJ)
Can Your Phone Find Your Car? (NY Times)
NoWait App Manages Restaurant Wait Lists (ZDNet)

Time to Make Your 2013 Employment Law Resolutions

As we welcome 2013, it’s time to focus on New Year’s resolutions. With President Obama’s re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (“NLRB”) on the enforcement of both unionized and non-unionized employees’ right to engage in concerted activity for their mutual aid and protection under federal labor law. The NLRB’s focus included challenges to social media policies and at-will language in employee handbooks. Employers should review their handbooks and revise any policies that might chill employees’ rights to communicate or work together for their mutual aid and protection. Other key legal developments that could require policy changes include the Equal Employment Opportunity Commission’s (“EEOC”) recognition of discrimination protections for transgender individuals, the EEOC’s focus on discrimination in connection with credit or criminal background checks, a new government focus on the scope of confidentiality requirements during workplace investigations, and the passage of state laws permitting same-sex marriage and legalizing marijuana in some states.

2. Adopt or Update a Technology and Social Media Policy:  This is a resolution I recommended for 2012, but, if you’re anything like me, you may not have stuck by your 2012 resolutions. Even if you did, 2012 brought continued legal developments related to social media and technology in the workplace that may require you to revise your policies. Among other things, the NLRB General Counsel’s office issued written guidance on the types of social medial policies that comply with unionized and non-unionized employees’ rights to engage in concerted activity under federal labor law and the types of policy provisions that violate those rights.

3. Review Your Technology-Related Practices:  In addition to having an up-to-date technology and social media policy, it is important to review your practices related to employees’ use of technology in light of a variety of legal risks. Issues to consider include whether your practices comply with wage and hour, privacy, discrimination, retaliation, and electronic communication laws, and whether you are taking appropriate steps to safeguard and preserve electronic data.

4. Review Your Applicant Screening and Background Check Practices:  As mentioned in a number of our posts this year, the EEOC has increased its enforcement focus on discrimination in the hiring process and in connection with credit and criminal history checks. In 2012, the EEOC also issued written guidance on the legal standards that must be satisfied for criminal background checks to be lawful under discrimination law. If your company conducts credit or criminal history checks on applicants or employees, you should work with counsel to review your screening practices, background check forms, and decision-making processes to ensure legal compliance.

5. Review your Worker Classifications:  As in past years, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) are continuing their increased joint enforcement focus on the misclassification of employees as independent contractors. The State of Minnesota has an agreement with the DOL to cooperate in identifying and correcting worker misclassifications, and this continues to be a hot area for litigation by plaintiffs’ counsel. If you haven’t done a recent review of your worker classifications, you should make this a priority in 2013.

6. Review your Pay Equity:  The EEOC’s 2013 enforcement agenda includes a focus on gender discrimination in pay. In addition, if your company is a government contractor, you have a number of affirmative action obligations depending on the monetary value of your contracts and the number of individuals you employ. The federal Office of Federal Contractors Compliance (“OFCCP”) has a 2013 budget that provides for a 12% increase in employer compliance evaluations in 2013, and the OFCCP has increased its focus on pay equity for women, as well as for racial minorities. A priority this year should be reviewing your pay practices to ensure nondiscrimination. To preserve arguments that your internal pay review is legally privileged, you may want to conduct any pay equity review through legal counsel.

7. Train Your Managers:  Even the best-intentioned employer can run into legal trouble if managers are not sufficiently trained on employment law requirements and how to appropriately manage and document employee performance issues. New managers should be trained as soon as possible on their obligations to assist your company with legal compliance, and other managers should receive regular refresher training. A priority in 2013 should be reviewing your training schedules and content to ensure that managers are receiving the training needed to help your organization manage and limit legal risks.