Thursday, May 30, 2013

Week in Review

The pocket dial: it happens to the best of us. Usually it ends in muffled silence, but, as the events of this week show, sometimes it can result in major life changes, like unemployment or prison time. Take, for example, the two Florida men featured below. One, working as a pizza delivery driver, pocket-dialed a recent customer and left an unintended voicemail full of racial epithets. He and the coworker he was talking to both lost their jobs. A second Florida man betrayed by his backside this week pocket-dialed 911 and inadvertently recorded a message about his intention to murder another individual. His plan was carried through minutes later, and the caller is now facing first-degree murder charges.

Other interesting articles this week discuss UCLA surgeons' use of social media to give a glimpse into their surgeries, the workplace consequences of constantly being glued to our cellphones, and Facebook's response to an alarming increase in sexist hate speech online.

Technology and the Workplace
Papa Johns' Driver Butt-Dials Customer, Leaves Racist Musical Message (MSN) (Lawffice Space)
House Dems Float Employee Social Media Privacy Bill (Law 360) (Employer Handbook)
UCLA Surgeons Using Vine, Instagram to Tweet Brain Surgery (LA Times)
Just Look Me in the Eye Already: the Workplace Perils of Staring at Our Phones (WSJ)
Journalists Threatened After Finding Massive Security Lapse (ABA Journal)

Technology and the Law
"Pocket Dial" to 911 Leads to Murder Arrest (WSJ)
Under Pressure, Facebook Targets Sexist Hate Speech (CNN)
Do Police Really Use Aircraft to Enforce Speed Limits? (Slate)
Ex-Marine Detained After Facebook Posts Files Suit (WSJ)

There's an App for That
Gmail's New Inbox Can Auto-Organize Your Messages (CNN)
Roam the World and Keep the Cellphone on a Budget (NYT)
FDA Questions iPhone App that Analyzes Urine (LA Times)
10 Apps for Enjoying the Great Outdoors (Mashable)
Forget the Bake Sales, Fundraising Goes Digital with Schoola.com (LA Times)

Two Minnesota Cases Provide Important Reminder of Minnesota’s Marital Status Discrimination Law

In an interesting convergence of events, two Minnesota employers recently found themselves on the wrong side of Minnesota’s marital status discrimination law just as Minnesota is preparing for same sex marriages to become legal on August 1, 2013. These recent cases serve as an important reminder that Minnesota law prohibits employment discrimination based on “marital status,” including discrimination based on the situation or identity of an employee’s spouse. Minnesota employers should also be mindful that, come August, both opposite sex and same sex spouses will be protected by Minnesota’s marital status discrimination law.

The two recent Minnesota cases involved similar facts. In the first case, a St. Cloud based auto parts store agreed to pay over $50,000 to settle a charge of discrimination filed with the Minnesota Department of Human Rights by a female employee who was fired after her husband went to work for a competitor. In the second case, Aase v. Wapiti Meadows Community Technologies Services, Inc., No. A-12-1671 (Minn.Ct.App. May 20, 2013), the Minnesota Court of Appeals held that a terminated female employee was entitled to a trial on her claim that she was wrongly fired by her non-profit employer based on her husband accepting a seat on an advisory board along with employees of a competing entity.

In both cases, the employers argued that they had lawfully fired the employees because of violations of the employer’s conflict of interest policy, not because of marital status. In the St. Cloud case, the auto parts store claimed that the terminated employee had access to confidential data because of her bookkeeping duties and that her continued employment posed a conflict of interest given her husband’s work for a competitor. In announcing the settlement of this case, the Minnesota Department of Human Rights rejected that defense, noting that the conflict policy was overbroad and that most of the auto parts store’s employees had access to the same “confidential” information.

Similarly, the Minnesota Court of Appeals rejected the idea that a Minnesota employer can impute a conflict of interest to an employee based solely on the employee’s spouse working for a competitor. The Minnesota Court of Appeals noted that “marital status” is defined by the MHRA to include the “identity, situation, actions or beliefs of a spouse,” and, therefore, an employee cannot be terminated based solely on a spouse working for a competitor without some independent conflict of interest on the part of the employee herself. In the Aase case, the employer did argue that the terminated employee had independently violated its conflict of interest policy by refusing to cooperate with the employer’s efforts to mitigate the potential conflict, but the Minnesota Court of Appeals held that genuine fact issues necessitated a trial.

In the wake of these recent cases and in anticipation of same sex marriages becoming lawful in Minnesota, employers should consider doing the following:
  • Review their equal employment opportunity and non-discrimination policies to ensure that they list “marital status” as a protected class.
  • Review their employment policies and practices to ensure that they do not discriminate based on marital status, meaning the “identity, situation, actions, or beliefs” of an employee’s spouse. In particular, employers should review any conflict of interest policies to ensure they are not drafted or applied to impute a conflict of interest to an employee based solely on a spouse’s actions.
  • Employers should also review their leave of absence or time-off policies in light of Minnesota’s new marriage law. Under current federal law, same sex spouses are ineligible for a leave under the federal Family and Medical Leave Act (“FMLA”) to care for a same sex spouse, because the FMLA currently only applies to spouses of the opposite sex. Minnesota employers should, however, look at their non-FMLA policies, such as non-FMLA medical leave, bereavement leave or military leave. If these leave policies don’t already apply to same sex spouses, they need to be revised before August 1, 2013, in light of the new Minnesota law on same-sex marriage.
  • Employers should also be mindful that, while the FMLA does not currently apply to same-sex spouses, this may change. For purposes of the FMLA, the term “marriage” is defined by the federal Defense of Marriage Act (“DOMA”), which defines marriage as between a man and woman. A constitutional challenge to DOMA is pending before the U.S. Supreme Court, and a decision is expected in June. If DOMA is found unconstitutional, the FMLA may apply to same sex spouses.
  • Employers should also review their employee benefit and insurance plans and work with benefits counsel to determine what changes may need to be made to employee benefits in light of Minnesota’s same sex marriage law. More information on this topic is available Kathi Wright's the e-benefits alert issued by the firm earlier this month.

Thursday, May 23, 2013

Week in Review

Four different kinds of employees are causing employers grief in the modern workplace this week.

The Workaholic: while employees' constant connection to work via smartphones may seem like a great thing, employers need to ensure that they are following wage and hour laws in compensating employees for this time. The California Public Agency Labor and Employment Blog explains how after-hours, work-related smartphone usage can get employers into trouble if they are not careful.

The Troublemaker: in a recent NLRB memo, the Board found that an employer could legally terminate an employee who used Facebook to goad the employer to fire her.

The Cyberloafer: a recent survey found that 60% of workers use their work computers for non-work activities, and that many workers spend more than a half-hour each day shopping, instant messaging, or attending to other personal matters.

The Misleading LinkedIn User: a Kentucky court found that an employer cannot force a former employee to update his LinkedIn account. The court rejected the employer's arguments that the ex-employee had engaged in fraudulent misrepresentation when he left his LinkedIn profile unchanged after his employment terminated.

Technology and the Workplace
Employee Usage of Smartphones After Hours -- Are Employers Liable for Overtime? (CA Public Agency Labor & Employment Blog)
When Employee Taunts Employer Via Facebook to "Fire Me... Make My Day..." NLRB Memo Concludes the Employer Can Go for It (Employer Law Report)
Employees Assume Bosses Track Their Work Computers, Survey Finds (LA Times)
Court Rules Employer Cannot Force a Former Employee to Update LinkedIn Profile (Employer Law Report)
WA Gov. Signs Social Media Privacy Bill (Law 360); NJ Assembly Passes Revised Social Media Privacy Bill (Law 360)

Technology and the Law
LA Bill Would Ban Drivers From Reading Tweets (WSJ)
Woman Outed After Twitter Brag That She Hit Cyclist (CNET)
Technology Blocks Smuggled Cell Phones, But Not Approved Calls, at State Prison (ABA Journal)
How Police Can Finds Your Deleted Text Messages (CNN)
Parties in Slip-and-Fall Case Ordered to Hire Neutral Expert to Probe Plaintiff's Facebook Page (ABA Journal)

There's an App for That
Tools That Tell You If You're Legally Drunk (CNN)
Nextdoor, the Social Network for Neighbors, Rolls out iPhone App (LA Times) (CNET)
New "Clueful" App Scans Andriod Phones for Privacy Leaks (NBC)
App Delivers "Virtual Placebo" to Improve Your Health (Mashable)

Friday, May 17, 2013

Week in Review


There was a little something for everyone in this week's technology developments. Colorado adopted a social media workplace privacy law, joining 13 other states with similar laws that limit employers' access to employees' passwords and other personal data. Privacy doesn't fare so well, however, according to new reports that forensic examiners have increased their ability to recover all kinds of things cell phone users thought were "deleted," including incriminating pictures taken with the Snapchat app. All sorts of workplaces are now able to accept mobile payments, which is a great convenience for customers but increases responsibilities -- and potential liabilities -- for employees. And at the political intersection of technology and labor, high-tech companies want to increase the number of skilled computer workers and engineers from other countries allowed to work in the US, while labor organizations want to keep tech jobs for US citizens.


Technology and the Workplace
CO Now Has a Social Media Workplace Privacy Law Too (Employer Handbook)
U.S. Technology, Labor Clash on Immigration (CBS)
14 Ways to Accept Mobile Payments (Mashable)
OMG, "Deleted" Snapchat Sexts Can Actually Be Recovered? (Slate) (ARS Technica)
Court Orders Re-Hiring a Teacher Who Wished Her Students a Watery Death (Employer Handbook)

Technology and the Law
Stunned by $45M Cyberheist, Banks Have Limited Options for Trying to Recover Money (ABA Journal) (CNN)
Copyright Owners Can't Sue YouTube as a Group (NBC) (Huffington Post)
France Set to Tax Smartphones to Protect Culture in Digital Age (CNBC)
WV Bans Sexting Between Juveniles While Creating Educational Diversion Program (Huffington Post)
Obama Has Worse Record Than Nixon on Press Freedoms, Says Pentagon Papers Lawyer (ABA Journal) (The Daily Beast)

There's an App for That
Google Wallet Will Soon Allow You to Send Money as a Gmail Attachment (Gawker)
Swipe Away Photo Imperfections on a Smartphone (NYT)
Huggies TweetPee Device Sends Tweet When Baby Wets Diaper (CBS)
3 Apps for a Better Night's Sleep (Mashable)

Tuesday, May 14, 2013

Ban the Box Legislation on its Way to Becoming Law

Last week the Minnesota House of Representatives passed “Ban the Box” legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support.  Governor Mark Dayton has indicated his support and is expected to sign the bill into law.

With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers.  Proponents believe that postponing inquiries into an applicant's criminal history until later in the hiring process will stop the practice of automatically rejecting ex-offender candidates and increase hiring opportunities for such applicants. 

EEOC guidance on hiring ex-offenders requires employers to perform an individualized assessment before excluding an applicant from consideration because of criminal history.  The guidance instructs employers to consider the nature of the offense, the date of the offense (or the date since incarceration ended), and the duties of the position for which the applicant is applying. Thus, even without ban the box laws (and, for Minnesota employers, even before this new law takes effect), employers should review their application process and consider removing inquiries which seek information regarding past criminal offenses. 



Monday, May 13, 2013

Out With The Old, In With The New Form I-9

The newly revised Form I-9 went into full effect  this past week on May 7, 2013.  USCIS rolled out the new form earlier this year, but gave employers a 60-day grace period to transition.  As of last Tuesday, United States Citizenship and Immigration Services is no longer accepting the previous version of Form I-9. Employers must use this new form for all new hires and reverifications going forward, but they do not need to complete a new Form I-9 for existing employees with a properly completed form on file.  For more information on the changes to the new Form I-9, please visit the previous blog post from my colleague Casey Nolan.

Friday, May 10, 2013

Week in Review

Don't text a texter -- at least not one who's driving. A New Jersey court of appeals is currently considering whether a young woman who texted an individual she allegedly knew was driving could be held liable for the damage arising out of that distraction. If this theory succeeds, it could give employers one more thing to worry about, and may affect how employers communicate with traveling employees. While not illegal yet, it's still a good idea to avoid texting employees you know are driving, especially considering the costs to employers of distracted driving. Better yet, have your employees install one of the apps listed below that helps drivers avoid texting distractions.

In other news, New Jersey Governor Chris Christie conditionally vetoed the proposed social media bill that would prevent employers from asking for workers' social media passwords. The governor indicated that he would like to see more protections for businesses in the bill. On the NLRB front, the Board has issued two more decisions in electronic speech cases, both of which came down in favor of the employees.

Technology and the Workplace
NJ Governor Christie Vetoes Proposed Workplace Social Media Law (Employer Handbook) (Law 360)
New NLRB Rulings Back Bus Driver Fired Over Web Comments (ABA Journal) (Reuters) (Labor Relations Today)
MN Asks Judge to Dismiss Drivers' License Data Lawsuit (Star Tribune)
Board Finds CalTech Scientists' Emails Protected Activity (Labor Relations Today) (Law 360)
Personal Emails Win Privacy in TX House Vote (NBC)

Technology and the Law
Can Remote Texter Be Liable if Driver Distracted by Message? Appeals Court Mulls Novel Theory (ABA Journal) (Daily Record)
Internet Tax Bill Targets All Digital Downloads (CNET)
Cops Can't Search Cellphone Seized at Arrest, FL Supreme Court Says (ABA Journal) (Tampa Bay Times)
FTC Warns Data Brokers to Heed Consumer Privacy Law (Law 360) (NY Times)
San Francisco Barred From Warning Consumers of Cellphone Radiation (NBC)

There's an App for That
Teenager Comes Up With a Way to Block Twitter TV Spoilers (LA Times) (Huffington Post)
Apps that Curb the Temptation to Text and Drive (All Things Digital)
Email Anxiety? Apps to Help Fight Inbox Agita (ABC)
Locked Out of Facebook? Now Your Friends Can Help (Mashable)

Thursday, May 9, 2013

To insure or not to insure . . . .

The Patient Protection and Affordable Care Act (“PPACA”) is now more than 3 years old and, like any 3-year-old, is beginning to assert itself in new and often clumsy ways. While the stated purpose of the PPACA is to broaden the pool of insured individuals, employers in many sectors are seeking ways to keep employees ineligible for health-care coverage. Institutions of higher education are the latest employers in the news for seeking ways to avoid having their adjunct faculty covered by health insurance. 


A recent article in The Chronicle of Higher Education highlights the plight of universities and their adjunct faculty. Many colleges, like other employers, are now seeking to limit the number of hours their faculty members work. Starting in January 2014, employees of large companies who work more than 30 hours a week must receive health benefits from their employers. Penalties up to $2,000 per employee are possible for an employer’s violation of this provision.

In the proposed rules announced this past January, the Internal Revenue Service explained that institutions of higher education should “use a reasonable method for crediting hours of service,” which should include both classroom time and preparation time. To keep adjunct faculty’s hours below 30 hours and to avoid the expense of providing healthcare to adjuncts, colleges are adopting a variety of solutions. Some are reducing the workload limit for part-time adjuncts, dropping credit hours or courses they can teach in order to be reliably under 30 hours a week. Others are setting strict ratios for teaching to preparation time (for example, 1 to 2). Some institutions are simply making good faith estimates of the number of hours they reason it should take adjuncts to do their jobs. 

Most colleges, and large employers across the country, are at the very least requiring their part-time employees to log their hours for review by human resources departments. This creates new timekeeping duties for administrators, and with their hours being carefully scrutinized, part-time employees may feel that they are faced with a dilemma – lie about the number of hours they work or face potential termination or nonrenewal of their contract. 

For institutions of higher learning, this is yet another new legal issue in an already highly regulated field. For all large employers, this is an uncertain time of attempting to figure out how to adequately staff workplace needs without incurring unmanageable costs.



Friday, May 3, 2013

Week in Review

Another week passes, and another social media password protection law has been enacted. Arkansas is the latest state to ban employers from obtaining workers' social media login information.

 The NLRB has also been busy dealing with social media issues. In a recent decision, an ALJ found that the University of Pittsburgh Medical Center's social media policy violated Section 7 of the NLRA because it prohibited employees from describing any affiliation they had with their employer in their social media posts. In another case, the Board ruled that Bettie Page Clothing violated Section 8 of the NLRA when it fired three employees for their Facebook posts, which involved complaints about the safety risks of the store's closing time and management's lack of response to these concerns. The Board found these posts to be protected concerted activity and ordered that the employees be reinstated.

Technology and the Workplace
NLRB Issues 3rd Facebook Firing Decision -- Employers 1, Employees 2 (Employer Law Report) (Lawffice Space)
UPMC Computer, Social Media Policy Violated, NLRB Says (Law 360) (Labor Relations Today)
Arkansas Gets Workplace Social Media Privacy Law (Employer Handbook)
"Bring Your Own Device" Evolving From Trend to Requirement (All Things Digital)
Justices Asked to Mull E-Privacy Law in Phone-Search Case (Law 360)

Technology and the Law
Americans Don't Want More Government Monitoring Cellphones and Emails to Fight Terror, Survey Says (ABA Journal) (CNN)
US Regulators Look At Dealing With Social Media (NBC)
Surrender Your Digital Privacy or Face a Fine (FOX) (Slate)
With Few Other Outlets, Inmates Review Prisons on Yelp (Washington Post) (ABA Journal)
Do Online News Stores About Arrests Constitute Libel After Expungement? (ABA Journal) (NYT)

There's an App for That
Smartphone Apps for Spring Cleaning (FOX)
Rearranging the Furniture, Minus the Aching Back (NYT)
VA Tech Victim is Behind Campus Safety App LiveSafe (LA Times)
10 Apps for International Travel (Mashable)