The Modern Workplace

Week in Review

2013-05-17T13:08:00.000-05:00

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)

Ban the Box Legislation on its Way to Becoming Law

2013-05-14T09:00:00.000-05:00

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.

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

2013-05-13T07:30:00.000-05:00

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.

Week in Review

2013-05-10T10:43:00.000-05:00

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)

To insure or not to insure . . . .

2013-05-09T14:22:00.000-05:00

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.

Week in Review

2013-05-03T13:20:00.002-05:00

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)

Should You “Friend” Your Employees?

2013-04-30T12:58:00.002-05:00

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.

Week in Review

2013-04-25T16:18:00.000-05:00

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)

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

2013-04-24T14:19:00.000-05:00

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.

Week in Review

2013-04-19T14:32:00.000-05:00

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)

Revisiting Affirmative Action

2013-04-17T16:05:00.003-05:00

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.

Week in Review

2013-04-15T08:41:00.000-05:00

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)

Background Checks or Blacklists?

2013-04-10T14:07:00.000-05:00

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.

Week in Review

2013-04-05T08:55:00.000-05:00

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)

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

2013-04-03T17:04:00.000-05:00

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.

Week in Review

2013-03-28T12:38:00.001-05:00

Spring is in the air, and changing seasons sometimes bring a change in perspective. This week, we see both individuals and the government looking for new ways to deal with old problems.

Since the advent of social media, we've seen the problems it can create in the workplace. Now, individuals looking to avoid such problems can use the new app FireMe! It has a "Check Yourself" tool that analyzes a username's tweets and calculates the likelihood that the tweets will get the author fired. We're guessing it doesn't come with a guarantee.

The government is also rethinking how the internet can help solve some of its problems. The U.S. Senate has just passed a bill that would levy a national tax on Internet sales. Additionally, a California city councilman is advocating taking an Internet sales tax one step further by imposing a tax on emails. He claims the profits could be used to help save local post offices, but critics question the practicality and desirability of such a tax.

Technology and the Workplace
Will This Tweet Get You Fired? Ask FireMe! (WSJ) (NBC)
NJ Bill to Protect Workers' Facebook Info Heads to Governor (Law 360)
Techie Adria Richards Fired After Tweeting About Men's Comments (CBS) (ARS Technica)
Your Employees Are Stealing Your Data (DE Employment Law Blog)

Technology and the Law
Are Shopping Websites Covered by Disability Law? The Answer Could Be "Yes" in New DOJ Regs (ABA Journal) (WSJ)
Senate Embraces Internet Sales Taxes (CNET)
Feds Use Little-Known StingRay Device to Track Cell Phones; Is a Warrant Required? (ABA Journal) (WA Post)
IL: Young People's Tweets Aren't Statements of Fact (IT-Lex)
Should the Government Tax Your Email? One CA Official Thinks So (FOX)

There's an App for That
Can an App Help You Invest Like a Billionaire? (WSJ)
This Smartphone Knows When You're Going to Die -- and Could Save Your Life (FOX)
Spring Cleaning: 8 Home Inventory Apps to Log Your Stuff (Mashable)
Exec, Your Online Personal Assistant (WSJ)

Sexual Orientation Protection from Discrimination in Minnesota

2013-03-27T11:03:00.000-05:00

The Supreme Court hears arguments today in the second of two landmark cases involving the national same-sex marriage discussion. The arguments are timely in the state of Minnesota, where an amendment to define marriage as solely between a man and a woman was defeated this past November and a same-sex marriage bill was recently introduced in the state legislature.

As the Supreme Court wrestles with the constitutionality of the Defense of Marriage Act and California’s Proposition 8, it is important for employers in Minnesota to remember that although Minnesota does not recognize same-sex marriage, it has, since 1993, recognized sexual orientation as a protected class for purposes of discrimination law. While the majority of states do not recognize sexual orientation as a protected class, Minnesota’s definition of “sexual orientation” is the broadest in the nation: “having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.” This definition protects lesbian, gay, bisexual and transgender individuals from discrimination in the workplace. It also protects individuals who associate with members of the LGBT community.

At the same time that Minnesota’s definition of “sexual orientation” provides broad protection from discrimination based on sexual orientation, the Minnesota Human Rights Act also includes various exemptions from its provisions. Private organizations providing services to minors – think Boy Scouts, recreational soccer leagues, 4-H clubs, and summer camps – may consider sexual orientation in hiring. Furthermore, the MHRA provides an exemption to religious or fraternal organizations.

Since the inception of “sexual orientation” as a protected status in 1993, discrimination cases brought under this status have accounted for about 3% of the total charges filed with the Minnesota Department of Human Rights. Regardless of how the Supreme Court rules on the same-sex marriage issue, employers should be aware of whether sexual orientation is a protected status in their state and should ensure their training materials and policies comply with state law.

How Long Do Unemployment Benefits Last?

2013-03-22T11:38:00.000-05:00

Legislative efforts at the state and federal level, particularly those related to efforts to stimulate the economy, have changed the length of time that unemployment benefits are available. They also created significant variation in the length of benefits among the states, making it difficult to keep track of what terminated employees can expect and what employers are responsible for around the country. The Wall Street Journal has an interesting article (subscription may be required) on the quantity of benefits available in different states. Currently, the newly unemployed in Minnesota may receive up to 40 weeks of regular and extended unemployment benefits. The Journal’s article provided a summary of the number of weeks of benefits available in the 50 states:

Weeks	States
40	HI, IA, KS, MN, NB, ND, NH, OK, SD, UT, VA, VT, and WY
41	MO
42	MT
46	FL, GA
48	MI, SC
54	DE, ID, LA, MA, MD, NM, OH, TX, and WI
60	AR, IL
63	AL, AZ, CO, CT, DC, IN, KY, ME, MS, NY, OR, PA, TN, WA, and WV
73	CA, NJ, NC, NV, and RI
86	AK

Week in Review

2013-03-22T11:36:00.000-05:00

With more and more of our lives occurring online, it is often difficult to keep sensitive information private. This week, there are indications that this task is not likely to get easier anytime soon. There has been an uptick in hacking activity on many fronts. On the employment front, an ex-Reuters employee is facing federal charges for giving the hacking group "Anonymous" a username and password to access the company's system. If convicted, the employee could be imprisoned for up to 30 years and be fined up to $750,000. On the election front, a recent grand jury report shows that a Florida primary election was compromised by a computer program that rapidly and systematically sent bogus online requests for absentee ballots. The attack is leaving cybersecurity experts questioning the role technology should be playing in elections. Lastly, on the international front, a new war rulebook has been released. The book, called the Tallinn Manual, purports to set out the rules for state-sponsored hacking in time of war.

Technology and the Workplace
Journalist is Federally Charged With Helping Anonymous Hack Into Tribune Company Website (ABA Journal) (LA Times)
Court Decides LinkedIn Ownership Case and Finds for Plaintiff But Refuses to Show Her the Money (Employer Law Report) (Employment Matters)
Study: Your Social Media Policy Hits the Right Legal Issues, But... (Employer Handbook) (Protiviti)
"Bring Your Own Device" Can Trump Privacy Risks, EEOC Says (Law 360)
Houston Police Sergeant Demoted for Posting Racy Photos Online (FOX News Insider)

Technology and the Law
MN Makes License Plate Tracking Data Private (St. Cloud Times)
Brainerd Woman Loses Music Downloading Appeal, Says She Can't Pay (Duluth News Tribune)
New Manual Applies Traditional Rules of War to State-Sponsored Internet Hacking (ABA Journal) (WA Post)
Cyberattack on FL Election Raises Questions (CNN)
Activist Sues San Francisco PD After Warrantless Search of His Phone (ARS Technica)
Hacker Gets 3.5 Years for Stealing iPad Data from 120k Users (NBC)

There's an App for That
Quickly Zeroing in on New Places to Call Home With Zillow Real Estate (NY Times)
3 Apps for March Madness: Watch Games on the Go, Track Brackets (LA Times)
New Theft Tracker is Like LoJack and OnStar for Your Bike (Mashable)
5 Great RSS Reader Alternatives to Google Reader (Forbes)

Capitol Update

2013-03-21T13:39:00.000-05:00

The Minnesota Legislature is in full swing, and as always, employers will want to monitor the proposals under consideration at the Capitol. Bills that may impact employers include:

Health Insurance Exchange. Governor Dayton has just signed legislation creating Minnesota's health insurance exchange, which is a significant part of the federal health insurance overhaul.

Minimum Wage Increase. Lawmakers appear to be moving forward with House and Senate bills that would increase Minnesota's minimum wage for most employees to $9.95 or tie the required wage to inflation. Currently, employees are entitled to the higher of the federal or state minimum wage.

Unionizing Family Caregivers and In-Home Daycare Providers. Unions continue efforts to organize family members who are paid to provide home health care and in-home daycare providers.

More information regarding these and other bills that may affect employers and businesses in Minnesota is available from the Minnesota Chamber of Commerce. Employers outside of Minnesota will want to monitor their state legislature for bills that may impact them.

Week in Review

2013-03-14T17:07:00.000-05:00

It turns out that Facebook can be used for more than just reconnecting with old friends and getting employees in trouble (though there is still plenty of that going on). Now, depending on who you are and where you live, you might be vulnerable to legal service via Facebook. A New York federal court recently ruled that the FTC may serve defendants in India using both email and Facebook. It reasoned that such service was proper under the Federal Rules of Civil Procedure and the Hague Service Convention. Similarly, Texas lawmakers are considering a bill that would allow for service via social media if the defendant regularly accesses his or her profile page and actual notice can reasonably be expected.

Facebook is also a useful tool in the discovery phase of investigations, and not even the EEOC can hide from such requests. Last week, the EEOC was sanctioned by a Colorado district court sanctioned for failing to turn over social media login information. The EEOC was ordered by the court to turn over the information last November and now must pay the attorneys' fees associated with its failure to do so.

Technology and the Workplace
Connecticut Proposes Legislation Concerning Employee Passwords (Mondaq)
EEOC Sanctioned for Failure to Produce Social-Media Evidence (DE Employment Law Blog)
Prison Guard Who Made Facebook Threat to OH Governor Gets Job Back (Dayton Daily News)
Rain Tree Supporter Fired Over YouTube Video (Sun Sentinel)
NY Teacher Fired After Caught Sending Racy Hookup Emails From School Account (NY Post)

Technology and the Law
FTC Can Serve Foreign Defendants via Facebook, Federal Judge Rules (ABA Journal) (Reuters)
Proposed TX Legislation Would Allow Defendants to be Served on Facebook (WSJ)
You May Now Kiss the Computer Screen: Internet Marriages on the Rise (NY Times) (ABA Journal)
Gone House Hunting Online? Revived Patent Lawsuit Says You're a "Joint Infringer" (ARS Technica)
Domestic Abuse Law Applies to Online Relationships, MA High Court Says (ABA Journal) (Boston Globe)

There's an App for That
Improving Smartphone Battery Life With Apps (All Things Digital)
Breathometer Introduces Smartphone Breathalyzer (LA Times) (Mashable)
New Netflix Facebook App Lets Users Share Viewing History (CNN)
AAA Says Smartphone May Soon Replace Traditional Car Keys (LA Times)
WebMD Launches Personalized Pregnancy App (Mashable)

Reaction to Email Searches Shows Importance of Policy and Managing Expectations

2013-03-12T15:52:00.000-05:00

In the news this week has been a story about a decision by a university to search email accounts of several staff members in an effort to determine the source of a leak to the media. Like many employers, the University did not seek the employees’ permission before reviewing their emails. The employees whose emails were reviewed were not aware of the University’s actions until earlier this month.

The fallout from this incident is a good reminder that employers and employees may have very different expectations regarding emails and other electronic information stored on the employers' computer systems. To avoid legal and political issues from erupting, it is wise to have a clear policy spelling out the company’s perspective regarding the confidentiality of such information. Training employees on the details of the policy is also worthwhile.

Because privacy is always a concern, it is important for the policy to spell out whether the employer reserves the right to review employee emails without the employees’ prior notice or consent. An individual can hardly claim an expectation of privacy if the employer’s policy makes it clear that emails are subject to inspection. Even when a policy makes it clear that the employer may review employee emails, however, employers still need to proceed with caution. As we have noted in a previous post, review of employee emails should occur only when there is a legitimate business purpose. The review should be limited to the extent necessary to determine whether an email is related to the issue being investigated. If possible, all reviews of employee emails should be conducted under the guidance and direction of legal counsel.

USCIS Has Finally Released the Revised Form I-9

2013-03-08T16:24:00.000-06:00

The USCIS has published a Notice in the Federal Register announcing the release of the revised Form I-9. Employers should begin using the revised form immediately. There is, however, a 60-day grace period before penalties may be imposed for using a previous version of the form.

The final changes to the form include additional instructions, an expanded two-page layout, and new data fields for employees to list their email addresses and phone numbers. Employers should be sure that they update their policies and handbooks to reflect the changes in the revised form and instructions. In addition, employers that use an electronic I-9 system should confirm that their systems are compatible with the revised form.

Week in Review

2013-03-07T15:13:00.001-06:00

Variety is the spice of life, even when it comes to the legal implications of technology. This week offers a good illustration of the many different areas of the law that technology can impact. Here are some current examples:

Employment Law: A New Mexico judge who violated the court's computer and Internet use policy with his "excessive and improper" instant messaging during court proceedings was forced to resign. A Penn admissions officer who shared on Facebook snippets of admissions essays has sparked debates about online sharing of employment information.

Securities Law: The rise in hacking of corporate websites and databases has caused some to question the related risk to overall corporate security and profitability, and the responsibility hacked companies have to report hacks to the Securities and Exchange Commission.

Family Law: A recent survey finds that dating websites are key sources of evidence in divorce cases.

Constitutional Law: The U.S. House of Representatives is considering a bill that would require the police to obtain a search warrant before searching or tracking email and mobile phones. In a civil case, the court's order to remove a Facebook posting involving McDonald's advertising practices has created push-back from free speech advocates.

Technology and the Workplace
Penn Admissions Officer Too Funny for Facebook (DE Employment Law Blog) (Inside Higher Ed)
Your Company Got Hacked, Must You Disclose to the SEC? (IT-Lex) (CNBC)
Tracking Sensors Invade the Workplace (All Things Digital)
Judge Resigns After Admitting Improper IMs With Wife During Court, But Denies Steamy Content (ABA Journal) (Albuquerque Journal)

Technology and the Law
Police Would Need Warrants for Email, Phone Tracking, Federal Bill Says (CNET) (ARS Technica)
Copyright Alerts Won't Go to Coffee Shop Connections (NBC)
Clampdown on Man's Facebook Page Raises Free-Speech Worries in McDonald's Halal Case (Detroit Free Press)
Dating Websites Providing More Divorce Evidence Says Survey: Nation's Top Matrimonial Lawyers Cite Match.com as Most Common Source (AAML)
Woman Who Sued Google Over "Levitra" Link to Her Name Loses in 7th Circuit (ABA Journal) (Reuters)

There's an App for That
Free App Magically Turns Your Pics Into Videos (Mashable)
Apple is Looking to Introduce iWatch This Year, Report Says (LA Times)
Houzz Will Save Your Home (and Perhaps Your Marriage) (Mashable)
These 11 Apps Will Supercharge Your Personal Life (Mashable)

Is it the Beginning of the End for the Flexible Workplace?

2013-03-06T17:06:00.000-06:00

Is workplace flexibility a necessary casualty of difficult economic times? When thinking about the innovations that make up the “modern workplace” for which this blog is named, employers’ embrace of flexible work hours and locations would be very near the top of the list. Advances in technology – particularly electronic connectivity – have allowed employers to move away from traditional concepts of the workplace and the workday. More employers permit telecommuting by their employees and allow flexible work hours. There are, however, signs in the business world that employees may have seen the high-water mark for such flexible approaches by employers.

News has just surfaced that Best Buy has decided to scrap its innovative flexible work policy (called the “Results Only Work Environment”). Best Buy’s program allowed its corporate employees significant flexibility in deciding when to work outside the office and what their precise work hours would be. Best Buy’s decision followed an earlier decision by Yahoo to stop allowing workers to telecommute. Both employers cited concerns about decreased productivity and creativity as key reasons for their decisions, as well as worries about the impact of telecommuting on team-oriented work. Yahoo’s announcement created a flurry of media reports and commentary reflecting competing points of view. Some commentators portrayed it as a retreat to antiquated times and an attack on working parents, while others said it was supported by studies suggesting poor productivity from telecommuting workers.

It remains to be seen whether we are hearing the death knell for a more fluid concept of where and when work gets done, or if this will merely be a bump on the road to a more permanent redefinition of our modern workplace. In any event, given the significant attention paid to Yahoo’s decision, this does appear to be a very polarizing issue for employers and employees.