Thursday, February 28, 2013

Week in Review

Yahoo is front and center in tech news this week, but not because of its services. Last Friday, the company told its employees that as of June 1st, no one will be permitted to work from home. The internal memo cited quality and efficiency concerns related to telecommuting. The change has angered some employees and sparked criticism.

In other interesting news, today is Pope Benedict XVI's last day in office, and cardinals will soon meet in conclave to elect a new pope. Though technological advances such as Twitter and camera phones make secrecy a difficult goal to obtain, the Catholic Church is taking every precaution. Cardinals are forbidden to engage in any communication with the outside world (including tweets) while in conclave, and other staff present for the deliberations face excommunication if they are caught using any device with recording technologies (i.e., almost any phone these days).

Technology and the Workplace
Yahoo Has a New No-Telecommuting Rule. Here's Why It May Be Unlawful (Employer Handbook) (All Things D) (CNN)
FBI Battling "Rash of Sexting" Among Its Employees (CNN)
Social Media Bills Under Consideration in Utah and Philadelphia (Law 360) (Law 360)
Facebook Posts Not "Solicitation" Under Former Employee's Restrictive Covenant Agreement (Employer Law Report)
The Budding Burden of BYOD - Legal Issues Abound (Employer Handbook)

Technology and the Law
Supreme Court Dismisses Challenges to Surveillance Law (Washington Post)
Prosecutors: Encouraging Suicide is Not Free Speech (MPR)
Penalty for BlackBerry Use in Conclave Really Could Be Excommunication (Lowering the Bar)(CNN)
Copyright Alert System Launches, ISPs to Send Notice of Illegal Downloads (CBS) (Gawker)
It's Google, But is It Art? Museums Mull Opening Their Galleries to Digitization (ABA Journal)

There's an App for That
Stick This On Your Keys and Never Lose Them Again (Huffington Post)
Sassy App Punishes You When You're Being Lazy (Mashable)
New App Keeps You Tweeting After Death (FOX)
Cocktail Time: 5 Drink Recipe Apps (WIRED)
Want to Track Your Kid? There's an App for That (FOX)

Wednesday, February 27, 2013

Family Members Get Unemployment, Too

Agencies employing personal care assistants (“PCA’s”) might want to up their unemployment insurance coverage. For the second time in recent months, the Minnesota Court of Appeals has struck down a law that precludes family members who act as PCAs from obtaining certain benefits. In the case of Weir v. ACCRA Care, Inc., the court determined that a statutory prohibition preventing immediate-family-member PCAs from obtaining unemployment benefits is unconstitutional. The court made a similar ruling in December of 2012 in Healthstar Home Health, Inc. v. Jesson. In that case, a statutory amendment imposing a pay cut on “relative” PCA’s but not on “nonrelative” PCAs was found to violate the Minnesota Constitution’s mandate that “all similarly situated individuals shall be treated alike.”
Minnesota offers PCA services as part of its medical assistance program. Family members (who are not parents, stepparents, or spouses) may become PCAs and receive compensation through the program, but they must be employed by an agency. There are limits on the number of hours per month for which a family member PCA may be compensated, but the law authorizes “flexible use” of the permissible hours over a six month period. A July 2010 statutory amendment precluded family member PCAs from being eligible for unemployment benefits, presumably as a fraud prevention measure. As the state argued in the Weir case, family member PCAs could “front load” the permissible hours in a six month period and then obtain unemployment benefits for the rest. The court didn’t buy the state’s argument, finding that it did not back up its fraud concerns with evidence or legal authority. 
According to the Family Caregiver Alliance, the number of individuals using paid long-term care services will increase to 27 million people nationally by 2050 and, according to the same group, the majority of long term care services are provided by family members. The Minnesota Court of Appeals has made it easier for people who do difficult work for loved ones to receive state benefits comparable to those received by non-family members.
News coverage of the Weir case is available here.

Friday, February 22, 2013

Week in Review

We hear a lot about individuals' social media accounts getting hacked, but the events of this week remind us that company social media accounts are vulnerable as well. The Twitter accounts of both Burger King and Jeep were broken into and changed. Burger King's profile picture was changed to a McDonald's logo, and the account tweeted that McDonalds had bought Burger King. Jeep's account was changed to look like it was a page for Cadillac and to state that Jeep had been sold to Cadillac because it caught its employees doing pain medication in the bathroom. Both accounts appear to have been restored, but it's unlikely this is the last we'll hear of such hacks.

Technology and the Workplace
Manager's Drunk Facebook Post Leads to Retaliation Claim (DE Employment Law Blog) (Technology and Marketing Blog) (Employer Handbook)
MI Woman Files Unfair Labor Practice Over Facebook Firing (
Stalled NJ Social Media Bill Still Expected to Pass (Law 360)
Burger King, Jeep Twitter Accounts Get Hacked (CNN) (LA Times)
Staples to Carry Apple Products, Employees' Tweets Say (LA Times)

Technology and the Law
Could Fake Profile on Dating Site be Illegal Under the Computer Fraud and Abuse Act? (ABA Journal)
Police Reach Out to Dead Man's Mom on Facebook (CNN)
Couples Win Right to View Dead Child's Facebook Account (CBS)
Mom Ordered to Stop Posting on Kids' Facebook Pages, NY Supreme Court Upholds Decision (Huffington Post)
Proposed OH Law Would Officially Allow Snooping on Kids' Text Messages, Calls, and Emails (Slate)

There's an App for That
10 Apps You Need to Dominate Your Workday (Mashable)
10 Excellent Apps to Improve Your Commute (Mashable)
A Digital Update to Those Old Family Photo Albums (NY Times)
Best Apps for the Oscars (ABC)
ProxToMe Sends Files From Your iPhone to Everyone in the Room (Mashable)

Monday, February 18, 2013

Reflecting on the Presidents Behind Our Landmark Civil Rights and Employment Laws

Today is President’s Day, or, as it is officially called, Washington’s Birthday.  We also celebrate Black History Month each February, making this month a time for reflection on the long history behind our country’s efforts towards achieving equality in the workplace.  In honor of both President’s Day and Black History Month, I’m sharing the list below of Presidents who were in office when our country passed some of its landmark federal civil rights or employment laws, along with some interesting facts about each of the Presidents who played a role in the history behind our current workplace laws. 
Wishing you happy reading and a happy President’s Day!
Abraham Lincoln, 16th President:
·        Issued the Emancipation Proclamation in January 1863
·        In office when the 13th Amendment, abolishing slavery, was passed in 1865
·        Born in a one room log cabin; mostly self-educated; kept goats as pets in the White House
·        Assassinated in 1865
Andrew Johnson, 17th President:
·        One of four Vice Presidents to become President due to his predecessor’s assassination
·        42 U.S.C. § 1981, which prohibits race discrimination in business contracting and employment, was passed in 1866 over President Johnson’s veto
·        A self-educated tailor; kept white mice as pets in the White House
·        First President to be impeached and kept his office by only one vote
Franklin Delano Roosevelt, 32nd President:
·        Signed the National Labor Relations Act into law in 1935
·        Signed the Fair Labor Standards Act into law in 1938
·        Forced to wear a dress until he was 5; married his cousin, Eleanor; contracted polio at the age 39; had Scottish Terriers as pets in the White House
·        Only President elected to four terms
·        First President to name a woman, Frances Perkins, Secretary of State, to his cabinet
John F. Kennedy, 35th President:
·        Signed the Equal Pay Act, prohibiting gender discrimination in pay, into law in 1963
·        Youngest person to become President at age 43 and first Catholic President
·        In office during the civil rights movement and sent federal troops to support the desegregation of the University of Mississippi
·        White house pets included hamsters, cats, birds, and ponies
·        Assassinated in November 1963
Lyndon B. Johnson, 36th President:
·        One of four Vice Presidents to become President due to his predecessor’s assassination
·        Signed Title VII of the Civil Rights Act into law in 1964, prohibiting employment discrimination based on race, color, religion, sex, and national origin
·        Signed Age Discrimination in Employment Act into law in 1967
·        Appointed first African American , Thurgood Marshall, to the US Supreme Court
·        First President to appoint an African American, Robert Weaver, HUD Secretary, to his cabinet
·        Kept beagles, hamsters, and lovebirds as pets in the White House; liked to take visitors for 90 mph rides in his Lincoln Continental at his Texas ranch
George H. W. Bush, 41st President:
·        Signed the 1989 law that established the Martin Luther King, Jr. federal holiday
·        Signed the Americans with Disabilities Act into law in 1990, prohibiting disability discrimination in employment
·        In office when amendments were made in 1991 to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, and the Age Discrimination in Employment Act
·        Former Director of the CIA
·        Asked for President Nixon’s resignation in the name of the Republican Party
·        A book was published about his White House pet, a Springer Spaniel named Millie, and there are reports that Millie had her own room at the White House
Bill Clinton, 42nd President:
·        Signed the Family Medical Leave Act into law in 1991
·        Youngest governor when elected as Arkansas Governor at age 32
·        Second President to be impeached
·        White House pets included Socks, a cat, and Buddy, a chocolate lab; reported to have sent only 2 emails while President; known for playing the saxophone and jogging
·        Only President to have his wife later run for President
Barack Obama, 44th and Current President:
·        First African-American President
·        Signed Lilly Ledbetter Fair Pay Act into law in 2009, extending the time period for individuals to pursue gender-based wage discrimination claims
·        First President born outside the contiguous United States
·        Teenage dream was to play basketball, and high school nickname was “Barry O’Bomber”
·        White house pet is “Bo,” a Portuguese water dog

Thursday, February 14, 2013

Week in Review

As they do with Valentine's Day, many people have a love-hate relationship with technology. They love it when it's good to them and hate it when it burns them.

This week, both individuals and companies alike felt some pain as the result of their love affair with technology. A Michigan nurse and a Washington barista both lost their jobs because of over-sharing on social media.  The nurse was fired for FMLA fraud after the hospital where she worked saw Facebook pictures of the Mexican vacation she took while still on leave. The barista was fired for using his blog as a forum to insult his customers and boss. On the company side of things, Instagram and Facebook have been feeling the heat from litigation. Instagram is still defending a breach of contract suit over the change in its user policies, and Facebook is being sued for patent infringement in connection with its "Like" button.

If you're relationship with your devices is successful but you need some help in the love department, check out the Valentine's Day apps below. Perhaps you'll end the day successful in love as well.

Technology and the Workplace
Posting Vacation Pics on Facebook While on FMLA a Bad Idea (DE Employment Law Blog) (Employer Handbook)
Cyberloafing: Are you Surfing the Web at Work? (Today) (Kansas State University)
Proposed PA Legislation Would Make Online-Only Applications Unlawful (Lawffice Space)
Bitter Barista Blogs His Way Out of a Job By Smack Talking Customers, Boss (Seattle Times) (Employer Handbook)
10 Reasons Why You Should Be Using Social Media to Communicate with Employees (Huffington Post)

Technology and the Law
Teen Charged with Harassment Over Racist Tweet (NBC) (Above the Law)
Instagram Asks Court to Throw Out Lawsuit Over Service Terms (Huffington Post)
Facebook Sued Over "Like" Button (ABC) (Mashable)
Bedridden Man Uses Skype to Testify Against Wife (WSJ)
President Obama Issues Executive Order on Cybercrime (CNN) (NBC)

There's an App for That
Dating with Apps? Taking Your Love Life Mobile for the First Time (NBC)
How Tech Can Help You Score Last-Minute Valentine's Day Reservations (Huffington Post)
5 Dating Apps to Find Last-Minute Valentine's Love (Gizmodo)
Eliminate Your Ex from Facebook with this Mobile App (Mashable)
Twitter, American Express Team Up for #TweetPurchases (LA Times) (CNN)

Wednesday, February 13, 2013

Minnesota Lawmakers Consider Outlawing Most Noncompete Agreements

This week saw the introduction of a bill in the Minnesota House of Representatives that would outlaw the enforcement of most noncompete agreements in Minnesota. Under the pending legislation, all noncompete agreements would become unenforceable, with just three exceptions. The exceptions provide for very limited enforcement of noncompetition agreements in particular circumstances: in connection with:  the sale of a business, in connection with the dissolution of a partnership, and in connection with the withdrawal of membership in a limited liability company. 
Although noncompetes are subject to constraints and may invite the scrutiny of the courts, their use remains one of the primary ways in which a business can protect itself from damaging competition when a key employee departs. Employers concerned about the elimination of their ability to enter into such agreements may wish to consider contacting their legislators about this pending legislation, or may choose to work with a lobbyist to resist its passage. Meanwhile, noncompetes remain valid in Minnesota for the time being, provided they are reasonably limited in scope and narrowly tailored to protect an employer’s goodwill and confidential or trade secret information.
One alternative means of achieving protection is through the use of confidentiality and nondisclosure agreements, which can be effective in conjunction with nonsolicitation clauses that prohibit former employees from soliciting the business’s customers and employees for a competitor. 

Friday, February 8, 2013

Week in Review

I don't know if it's the cold, long winter we've been having, or just the increasing popularity of social media, but this week has been chock-full of internet-induced workplace drama. Take for example, the Applebee's server who was fired after posting a picture of customer's receipt on Reddit. The customer happened to be a pastor whose large dining party had incurred an automatic gratuity charge. He crossed out the added gratuity and wrote "I give God 10%, why do you get 18?" After the waitress shared a picture of the receipt -- signature and all -- with the online community, the pastor demanded that everyone involved, including the managers, be terminated.

Other online activities that caused employees trouble this week include: a Facebook rant about a chronically-late patient, a Facebook-posted screen shot of a 911 caller's confidential information, and a negative online review that turned into an unsuccessful defamation suit.

On the legislative front, three House of Representatives members have reintroduced the Social Networking Online Privacy Act. Among other things, this bill seeks to create a nationwide ban on employers requests for their employees' social media user information. The original version of this bill, introduced last May, died out at the end of 2012, so stay tuned to see if this one fares any better.

Technology and the Workplace
Applebee's Fires Waitress for Exposing Pastor's "Give God 10%" No-Tip Receipt (The Raw Story) (The Inquistr)
Calling Doc "A Real Tool" Isn't Defamatory, MN Supreme Court Rules (ABA Journal) (Star Tribune)
Firing of Worker Who Posted 911 Call Info on Facebook Ok'd (Law 360)
Doc in Hot Water After Posting Comment About Patient on Facebook (Huffington Post)
SNOPA Legislation Would Make it Illegal for Employers to Ask for Passwords (ABC)

Technology and the Law
Bill Targets Cyberbullies: Opponents Claim Law Violates Students' Free Speech Rights (Journal and Courier) (ABA Journal)
Senators Aim to Extend Ban on Internet Access Tax (CNET)
"You Have the Right to Blog," Says Judge (WSJ)
DOJ Memo Reveals Legal Case for Drone Strikes on Americans (NBC)
Protecting Your Facebook Profile After You Die (CBS)

There's an App for That
Your Lost Bags Sent a Text, Come Get Them (NY Times)
Facebook May Launch Location-Tracking in March (CBS)
Spanish App Chad2Win Pays You to Text (Huffington Post)
9 Apps Every Baby Boomer Should Know (Mashable)
New TSheets Time Tracker App Launches for QuickBooks (NBC)

Tuesday, February 5, 2013

Whether Someone Is “a Real Tool” Is a Matter Of Opinion

You may have read recent media reports about a dispute between a doctor and his patient’s son in which the doctor sued the patient’s son for, among other things, referring to the doctor as “a real tool.” Frustrated by the care that his father received from the doctor at St. Luke’s Hospital in Duluth, Dennis Laurion posted online that “[w]hen I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool.’”  Upset by this and other negative comments posted by Laurion, Dr. McKee sued him for defamation. The case was eventually appealed to the Minnesota Supreme Court, where the high court unanimously held that “[r]eferring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” Under Minnesota law, a statement of opinion cannot be the basis of a claim of defamation, so Dr. McKee’s lawsuit against Laurion failed.
This result is definitely a victory for free speech rights under the First Amendment, and will undoubtedly be cited by those defending against future defamation claims. Nevertheless, I will continue to caution employer clients to be careful when making any negative statements about a current or former employee. 
It’s important to remember, first of all, that Laurion’s case arose outside the employer-employee relationship. We don’t know if, or how, the court might have viewed the facts differently if the defendant had been an employer and the plaintiff had been an employee. My advice to employers is to stick to the facts. Leave your opinion out of it. The facts can generally be proven true and are often less inflammatory than a generalization or characterization, which is a good thing when you’re trying to avoid getting sued. For example, if you’re disciplining an employee for tardiness and attendance issues, don’t refer to the individual as “lazy” or “a malingerer” - not even in a private email to a fellow manager or HR. Remember, those private emails are discoverable in a lawsuit. It is much better to reference the actual absences or tardiness and state the need to change the behavior. Anytime to you try to slap a label on the performance or behavioral issue, I believe you increase the odds that you might find yourself or your company defending a defamation suit. Although Laurion was ultimately victorious in this case and was vindicated in his right to refer to Dr. McKee as a “real tool,” that victory did not come without paying the price of two years of costly litigation.