Tuesday, April 30, 2013

Should You “Friend” Your Employees?

Last week in The Modern Workplace Week in Review, we posted a link to an article discussing the results of a survey that found that most people believe you should never friend your boss (81% of those surveyed). 

From an employment law standpoint, I think the more interesting question is:  should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace.  I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not directly supervise him or her, can lead to trouble.  Here are some of the concerns:
  •  From a personal perspective:  What happens when you learn that the employee is violating company policy by posting on her work time?   This is your friend.  You may have to confront the friend about the inappropriate use of time, or report your friend to another manager.
  • From a discrimination perspective:  What happens if the employee is terminated and tries to claim that the termination was discriminatory – for example, because of a disability?  The employee may argue that management knew about the disability because of information contained in social media posts.  Do you really want access to all that information?   This can come up in other contexts as well.  The employee might claim that the termination was based on the fact that he was dating someone of another race, or that he joined a specific church, and that you, his boss, found out about it through social media. 
  • From a labor law perspective: There have been several articles here at The Modern Workplace about the dangers of disciplining employees who post complaints about managers, other employees, or other aspects of work on social media.  An employee can easily claim that an adverse employment action is based on a protected right under the National Labor Relations Act, which allows employees to discuss the terms and conditions of employment and prohibits employer retaliation for such discussion.  If you have access to your friend’s posts, you may have access to his or her protected discussions, too, and your friend may claim that your access led to discipline or discharge.
As you can imagine, I agree with my colleagues that it’s not a good idea for a boss to friend an employee. I think the risks outweigh any advantages. If, however, you have a close friendship outside work, and really think that you need to friend the employee, I would offer the following guidelines (with help from some of my blogging peers) to mitigate the risks:
  • The boss should never initiate the request. As a boss you are in a power position over the employee. If you make the request, the employee may feel obligated to accept.
  • If your friend makes the request, you should talk candidly about the possible implications of accepting. Make sure the employee knows that you have obligations to the company, and that if certain kinds of information is posted you might have to pass it on to others in the company.
  • Make sure that appropriate boundaries are maintained. As a boss, comments you  make based on a protected class status could violate harassment policies even if those comments are made during non-work hours. Likewise, you need to be careful that what you say is not interpreted to be company policy, or to be a statement about the company’s plans for the future.
There has always been discussion about the appropriate boundaries for relationships between supervisors and those they supervise. What’s new is the way that social media has changed and defined our social interactions, and the fact that social interaction that takes place through social media is never completely private, and is written in indelible electronic ink.

Thursday, April 25, 2013

Week in Review

The dance between cybersecurity proponents and privacy rights advocates continues. Today, the U.S. Senate Committee on Commerce, Science, and Transportation announced that the Senate will not take up the House version of the Cyber Intelligence Sharing and Protection Act (CISPA). Picking up on some of the public's criticism of the bill, a Senate spokesperson expressed concerns that the House version does not provide sufficient privacy protections. The Senate will be drafting its own version of the cybersecurity bill.

Employers may want to keep an eye on how this legislation unfolds, because it may affect business operations. The House version of the bill attempts to combat cybercrimes with increased access to information. It allows companies to share employees’ personal information with other companies and the government in order to facilitate the investigation and prosecution of security breaches. The House also rejected an amendment to the bill that would have prohibited employers from asking for employees' social media passwords. How the Senate will respond to such concerns remains to be seen, but it's something worth watching for.

Technology and the Workplace
Data Breach Lawsuits - Revisiting the Risk (Data Security Law Journal)
Cybersecurity Bill Allows Employers to Seize Employee Facebook Passwords (Above the Law) (Employer Handbook)
You Shouldn't Be Facebook Friends With Your Boss, Survey Says (Huffington Post)
Facebook Criticism of Supervisor Protected, NLRB Finds (Law 360) (Labor Relations Today)
How Tech Creates Additional Challenges in Today's Workplace (Employer Handbook)

Technology and the Law
ACLU: CISPA is Dead - For Now (US News) (CNET)
Scalpers Beware: New Laws Redefine What is a Ticket (WSJ) (ABA Journal)
FBI Denied Permission to Spy on Hacker Through His Webcam (ARS Technica)
DOJ Secretly Granted Immunity to Companies That Participated in Monitoring Program (Wired)
Judge Allows Suit Challenging Contract Intended to Squelch Bad Online Reviews (ABA Journal) (Forbes)
Three Virginia Teens Face Child Porn Charges in "Sexting" Trial (ARS Technica)

There's an App for That
Facebook Adds Free Calling for Android Messenger App Users (LA Times)
Prosthetic Hand Controlled With iOS App (Mashable)
LinkedIn Lauches "Contacts" To Help You Foster Your Professional Network (Wired)
7 Apps to Help Your Kids Be More Responsible (Huffington Post)
"Smart Guns" Could Be Next Step in Gun Control (CNN)

Wednesday, April 24, 2013

The Gang of Eight’s Immigration Bill and What it May Mean for Employers

Last week, the bi-partisan Gang of Eight U.S. Senators released an 844 page bill entitled “The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” If you are like me and do not have 10+ hours to devote to reading the entire bill, the Senate has also released a 17 page summary that can be found here  

The bill addresses many aspects of the U.S. immigration system, but in the interest of brevity, I will limit my comments to a few key parts of the bill that directly impact employers. 
Mandatory E-Verify for All Employers
Under the proposed legislation, all employers would be required to participate in E-Verify within five years according to the following timetable: employers with 5,000 or more employees would need to enroll within 2 years; employers with 500 or more employees would need to enroll within 3 years; and all other employers, including agricultural employers, would need to enroll within 4 years. These timelines would not be triggered, however, until DHS publishes regulations, which may not happen for several months after the law has been enacted.

The bill also proposes changes to the E-Verify program, including adding an administrative appeal process for individuals who wish to contest a non-confirmation determination. There would also be a stronger penalty for employers who do not comply with the E-Verify requirement. Specifically, if an employer fails to verify an employee using E-Verify and it is later discovered that the individual is undocumented, the bill provides that the employer is presumed to have knowingly hired an undocumented worker. Such a violation carries with it a civil penalty range of $3,500 to $7,500 per violation for the first offense. Although not directly related to the mandatory E-Verify requirement, the bill would also require that the Department of Homeland Security develop a plan to allow individuals to “lock” their Social Security Numbers so as to avoid identity theft.   
More Employment Opportunities for Foreign Workers

The proposed legislation would increase the annual number of new H-1B visas available from 65,000 to 110,000, with the potential for additional increases up to 180,000 visas if certain conditions are met. The bill would also increase the number of visas available to foreign nationals holding advanced degrees from 20,000 visas to 25,000, but this “Master’s Cap” would only apply to graduates in STEM fields (Science, Technology, Engineering, and Mathematics).  The bill also proposes significant changes to the H-1B application process, including a requirement that employers conduct recruitment prior to filing a Labor Condition Application, a non-displacement attestation, and a different method for determining the prevailing wage. The bill would also allow certain H-4 dependents to apply for employment authorization and would allow H-1B workers a 60-day grace period to extend, change or adjust status after termination.
In addition, the bill proposes new categories of visas: a W-1 visa for lesser-skilled non-agricultural workers, a W-2 visa for temporary agricultural workers who perform work under a written contract, and a W-3 visa for "at-will" workers who receive a full-time employment offer in an agricultural field. These new categories would replace the current H-2A agricultural worker program.

The bill proposes several significant changes to U.S. immigration law, both good and potentially bad for employers. Keep in mind, however, that it is just a bill at this point. There will likely be changes to the proposed legislation before it becomes law, if that even happens. Stay tuned for further updates.

Friday, April 19, 2013

Week in Review

I can invade your privacy; you just can’t invade mine. It seems like everyone wants to use the latest and greatest technology, but no one wants to suffer the consequences when that same technology is used in ways that harm their interests. Workers want to use social media to have their say about bad bosses, lousy customers, or unfair rules, but don’t like it when their employers see the results and react badly. Employers want to protect their businesses and customers from the comments of employees, but also want to use technology to catch employees engaging in all kinds of bad behavior. This tension is only going to get worse as social media transforms. It looks like the next thing employers will have to worry about is employees posting employment information on Vine, a social media site where individuals share six-second videos that continue to loop. Curious about what kind of things employees can get into a six-second video? Check out the link to the Connecticut Employment Blog post below for a number of interesting examples.

Technology and the Workplace
King & Spalding Blocks Employee Access to Personal Email Accounts, But Offers An Alternative (ABA Journal) (Above the Law)
Ex-Secretary's Defamation Suit Fails Against Law Firm Partner, Wife (NY Law Journal) (ABA Journal)
Instagram Post Lands DE Restaurant Manager in Hot Water (DE Employment Law Blog)
Workplace Issues Now Grow on "Vines," Why Employers Need a Policy More Than Ever (CT Employment Blog)
Minnesota Cops Check Out Lawyer's Private Info - 700 Times (Pioneer Press)

Technology and the Law
Seattle Jury Rejects Claim of Actress Who Sued Move Database for Revealing Her Real Age (Komo News)
FTC Calls on Online Ad Industry to Agree to Do-Not-Track Standard (LA Times)
Justice Department Backs Limits on Wireless Companies (NYT)
CISPA Permits Police to Do Warrantless Database Searches (CNET)
Obama Threatens Veto of CISPA Bill (LA Times)
House Approves CISPA, But Outlook in Senate is Unclear (CNET)

There's an App for That
Top 16 Security Tips for Smartphones (WI Lawyer)
Before Death, Google Helps You Get Your Affairs in Order (LA Times) (Slate)
Anti-Incest App Built By Iceland College Students (NBC) (Slate)
Safe Texting While Walking? There May Be An App For That (Mashable)
7 Mobile Apps to Help You Survive Tornado Season (CNN)

Wednesday, April 17, 2013

Revisiting Affirmative Action

The United States Supreme Court will be deciding an important affirmative action case this term and has now agreed to hear a second, similar case. These are not employment cases, but the Court's decisions will still be of interest to those of us who advise employers and who have followed the twists and turns of affirmative action over the years. Some observers think that the Court's decision in Fisher is going to signal the end of affirmative action once and for all. Others predict a divided Court and decisions so narrowly tailored that they have no real impact on the future of affirmative action. Almost nobody predicts that the future of affirmative action will be brighter after Fisher and Schuette have been decided. The cases before the Court both involve a determination of when and how - if ever - racial preference can be used to increase minority enrollment in colleges and universities.

It's important to remember that affirmative action and equal employment opportunity are not the same thing. Affirmative action consists of positive action programs designed to remedy past discrimination. It is essentially an exception to equal opportunity laws. Equal opportunity laws require that race, sex, and other protected status not be considered at all. Affirmative action programs allow, encourage, or may even require the consideration of protected class status. The affirmative action exception to anti-discrimination laws was created in recognition of this country's history of discrimination in employment, education, housing, and other areas of life. It has never been a broad exception, and over the past twenty years the courts have made it very narrow indeed. Whether the Roberts court will eliminate it completely remains to be seen.

Today, affirmative action in employment is limited to three situations. First, if an employer chooses to become a federal, state, or local government contractor, it may have to adopt an affirmative action plan. A government agency determines the parameters of the plan and monitors its implementation. Second, if an employer is found by a court to have committed discrimination, the court can require the employer to adopt an affirmative action plan as part of the remedy imposed in the case. In that situation, the court determines the parameters of the plan and monitors its implementation. In both contractor and court-imposed affirmative action plans, the employer is required to make good faith efforts to bring its workforce demographics (or portions of its workforce demographics) in line with the demographics of the community from which workers are drawn. The third kind of affirmative action in employment is the voluntary affirmative action plan, in which an employer chooses to adopt policies or undertake programs designed to increase the number of minorities or women in its workforce. Voluntary affirmative action plans must be developed with extreme care in order to fit the remaining narrow exception to equal employment opportunity laws that allows positive action programs to remedy past discrimination. There is considerable risk for employers who develop and adopt voluntary affirmative action plans casually.

For an excellent discussion of the history and current status of affirmative action law, click HERE.  The Modern Workplace will continue to monitor the Supreme Court's deliberations on this topic and report on the impact of its decisions on employers.

Monday, April 15, 2013

Week in Review

This week, employers were reminded of some of the perils of going digital, including increased vulnerability of confidential information. Three different companies experienced three different types of a data breach. Merrill Lynch claims its information was breached by two former employees who used their company passwords to steal customer contact information in an attempt to get the customers to leave with them. Winn-Dixie was caught up in litigation after a class of employees discovered that their personal employee data was improperly accessed through the company's employee purchase program. The program vendor ended up paying about $430,000 to settle the case. Lastly, a Florida hospital's patient information was breached by current employees. The two employees were paid over $10,000 by a third party for confidential patient information that was later used to solicit customers for medical and legal services.

Technology and the Workplace
Suspended Veterinarian Challenges Ban on Internet Advice (ABA Journal) (ABC)
Merrill Lynch Says Ex-Advisers Stole Client Info (Law 360)
Man Who Paid Hospital Workers for Patient Info to See Medial and Legal Services Gets 4 Years (ABA Journal) (Orlando Sentinel)
Winn-Dixie Employee Settles Data Breach Row (Law 360) (Jacksonville Business Journal)
7th Cir. Won't Resurrect Employer Email Hack Suit (Law 360)

Technology and the Law
Unlikely Allies Join in a Push to Require Warrant for Access to Digital Communications (ABA Journal)
CA Court Upholds Ticket for GPS Use While Driving (ABC) (Mashable)
IRS Doesn't Think "Reasonable Expectation of Privacy" Applies to Your Emails (Slate) (NBC)
If You Hate Red-Light Cameras, You'll Really Hate Speeding Ticket Robots (ARS Technica)
TV-Streaming Service Aereo Wins Latest Court Battle, But Broadcasters Call It Piracy (NBC)

There's an App for That
5 Services to Boot Email Productivity (Mashable)
Hacker Says Phone App Could Hijack Plane (CNN)
9 Great Apps and Gadgets to Help Your Garden Grow (Mashable)
Baby Name Blues? 10 Apps to Help You Choose (Mashable)
New Mobile App to Allow Motorists to Pay for Street Parking by Phone (NY Daily News)

Wednesday, April 10, 2013

Background Checks or Blacklists?

Many employers experience frustration and challenges when trying to obtain meaningful background check information. The cost to replace a terminated employee is high, and can add up quickly for an employer in a high turnover industry such as retail. Employers are wise to develop strategies, tools and resources that help them to recruit qualified workers who will be loyal and trustworthy employees. Background checks are common, and most employers rely on outside vendors to do them. Background check vendors - companies that specialize in gathering and reporting on criminal convictions, credit histories, and social media information about job applicants - have become an industry. 

These vendors are constantly developing new technology and methods to deliver what their customers need. This is no doubt what led to the database called “Esteem,” recently featured in a New York Times article. Esteem is a so-called “retail theft database” that is designed to help retail employers steer clear of hiring shoplifters and thieves. Many retail companies have used Esteem to report and share information about employees who have allegedly admitted to theft from their employers. Subscribers agree to share information about employees who have signed “admissions” of theft, and in return, employers also receive theft reports generated from the database containing “verified admissions.” Many large retail employers, including Target, Home Depot and Family Dollar Stores have used the service.

But federal authorities have zeroed in on background-check data. Last summer, the Federal Trade Commission settled charges with a retail-theft database vendor, saying some records were inaccurate and that the vendor made it too difficult for consumers to dispute claims. They claim the vendor used practices that violate the Fair Credit Reporting Act. Background checks also raise concerns related to discrimination.  Last year, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. According to the Guidance, to be lawful under Title VII, an employment exclusion must be based on proven criminal conduct and must be job-related and consistent with business necessity.  Databases that collect information about alleged theft admissions would not meet this requirement. 

Private lawsuits have proliferated against the companies that operate retail-theft databases. Lawyers are trying to build class-action cases against the vendors that supply this information to employers. They argue that the system and process is unreliable and has caused many job applicants to be unfairly rejected by prospective employers. Lawyers also say that admission forms do not typically warn employees that their admission will go on their record.  They refer to the databases as “a secret blacklist.”
What is the moral of my story, you ask? Your background check vendor is a key business partner. Do your due diligence before you sign up for the “latest and greatest” service. New and improved technology and tools are constantly emerging and the vendors selling these services are sophisticated and experienced. But that doesn’t mean what they offer is right for your company. Be sure you ask the vendor detailed questions about how they gather, validate and share all background check information, and make sure they understand and comply with FCRA and related state laws. 

Friday, April 5, 2013

Week in Review

This was a good week for employers to pay attention to the news about technology and social media. There were a number of important developments that may impact how investigations of applicants or employees are performed.

Utah joined the growing number of states that have passed a ban on employers accessing employees' social media accounts. Washington is debating a similar bill; its version, however, has an exception that would allow employer access during a company investigation. In a similar vein, employers using employee-theft-tracking databases to screen potential hires may want to proceed with caution. The FTC is investigating such databases as possible violations of the Fair Credit Reporting Act.

In a recent case in the District of New Jersey, the court sided with an employer when the employer tried to use social media to defend against an employee's lawsuit. In Gatto v. United Air Lines, the judge imposed sanctions on an employee-plaintiff who deleted his Facebook page after the employer was authorized to access it. Even though the plaintiff claimed the deletion was unintentional, the judge found that the destruction of evidence required corrective action in the form of an adverse jury instruction.

Technology and the Workplace
FTC Considers Whether Databases Tracking Employee Thefts Violate Federal Credit Reporting Law (ABA Journal) (NY Times)
Facebook Account Deactivation Leads to "Spoliation Instruction" (Employer Law Report) (DE Employment Law Blog)
UT Becomes 5th State With Workplace Social-Media Privacy Law (Employer Handbook)
WA Bill Would Allow Employers to Seek Workers' Facebook Passwords (CBS)
Use 5 or More Social Networks? This Study Shows You're a Better Employee (Mashable)

Technology and the Law
Judge Refuses to Toss Infringement Lawsuit Against Facebook Over Its Timeline Feature (ABA Journal) (NBC)
Appeals Court Restricts Searches of Students' Phones (WSJ)
Cyberattacks on Banks Signal Urgent Need for Security Bill, Lawmakers Say (NBC)
FCC Finally Opens Review of Cell Phone Safety Standards (CNET)
Tech Firms May Balk At CA Push For Citizen Data Access (CNET)

There's an App for That
How to Shield Yourself From Smartphone Snoops (NY Times)
Playboy Keeps It Clean With New iPhone App (LA Times) (ABC)
App Turns iPhone and iPad Into Security Camera, Motion Detector (LA Times)
NY Sex Advice App for Teens Prompts Mixed Reaction (CBS)

Wednesday, April 3, 2013

Is Your Handbook Disclaimer Watering Down Your Technology and Social Media Policy?

Later this month, I’ll be giving a presentation on employee handbooks.  This has me thinking about what types of policies should be included in a handbook and which items might be better addressed separately and outside of the handbook.  In considering technology and social media policies in particular, I’ve concluded that it may be best to maintain these policies as stand-alone policies outside of the employee handbook and, in some cases, to incorporate technology and social media requirements into individual employment agreements.

One key reason for considering a stand-alone technology policy or an employment agreement is that, rarely, can you have your cake and eat it too.  Most well-drafted employee handbooks contain broad contract disclaimers stating that the handbook’s contents are not a contract.  A contract disclaimer serves important purposes, helping an employer to preserve the at-will employment status of employees and to minimize the risk of a breach of contract claim if the employer fails to follow a handbook policy.  An employer that does not want to be legally bound by its handbook may, however, be hard pressed to convince a court that a current or former employee should be held to a different standard.  While an employer may be able to discipline or fire an employee for not complying with a lawful technology policy, it is less clear whether, in the face of a contract disclaimer, the policy could be legally enforced against a current or former employee in court. 
For example, if a departing employee refused to comply with policy language requiring the employee to turn over a personally-owned smart phone or other device so that business data could be wiped from the device, a contract disclaimer might make it difficult for the employer to obtain relief under the policy in a legal action.  An employer may have other options or legal remedies apart from policy enforcement, such as the capacity to remotely wipe data from a mobile device or legal rights under statutory or common law.  An employer could, however, also be better positioned to legally enforce its technology and social media policy in court by using one of the following options:
·        Narrowed Contract Disclaimer:  An employer that feels strongly about including its technology and social media policy in its employee handbook could draft the contract disclaimer in the handbook to state that it does not apply to the technology and social media policy.  If the employer uses this approach, however, it should consider whether other policies in the handbook also need to be expressly carved out from the handbook’s contract disclaimer.  In addition, an employer may want to revise any handbook receipt form that an employee signs to specifically reference the employee’s agreement to comply with the company’s technology and social media policy.

·       Stand Alone Technology and Social Media Policy:  Another option is to issue a stand-alone technology and social media policy that is separate from the employer’s handbook.  An advantage of this approach is that employees are more likely to be aware of, read, and understand a technology and social media policy if they receive it separately from other handbook policies.  The stand-alone policy could contain language stating that the policy does not alter an employee’s at-will employment status, without including a broader contract disclaimer.  An employer should also be better positioned to enforce its technology and social media policy in court if the policy includes a policy-specific receipt form to be signed by an employee and through which the employee acknowledges receipt of the policy, consents to the terms of the policy, and agrees that, as a condition of continued employment, the employee is obligated, both during and after employment ends, to comply with the policy.

·       Employment Agreement:  Finally, an employer might consider incorporating the requirements of its technology and social media policy into an individual employment agreement with an employee.  If an employer is already entering into a confidentiality, invention assignment, or non-compete agreement with an employee, the employer could add a provision to the contract providing that the employee will comply with the company’s technology and social media policies, as amended from time to time.  This approach allows an employer, if needed, to present the employee’s contractual obligations to a court in the form of a traditional, formal contract.

In addition, there are a variety of technology-related matters that might be best addressed in an individual employment contract.  For example, if an employee has non-solicitation or non-compete obligations, the employer might consult with legal counsel to determine whether it may lawfully require a departing employee to delete any work-related Linkedln.com or other online contacts from his or her online social media accounts and, if so, address this in the contract.  The employer may also want to include language in the agreement’s non-compete section providing that the employee will not use LinkedIn.com or other on-line social networking sites to violate the employee’s non-compete obligations.  In addition, if an employee will be involved in blogging, tweeting, or other on-line activity on behalf of the employer, the contract should make clear that the employer will own any work-related social media accounts, user names, and content created by the employee in the course of employment.

Whichever of the above approaches is used, the employer should also be mindful of state law requirements that must be satisfied to have a legally binding contract with an employee.  For example, in some states, continued employment alone may not be sufficient legal consideration for certain types of contracts with a current employee.  Companies should work with their legal counsel to customize and adopt the best approach for their business and to ensure that any employee contractual obligations are supported by adequate legal consideration.