The EEOC recently released new data, which identifies the number of charges filed by state. It's no surprise that the number of charges has increased steadily over the past three years, up from 163 charges filed in FY 2009, to 175 in FY 2010, to 228 last year.
But the percent of charges filed in Delaware as compared to the rest of the U.S. has remained consistent for the past 3 years--making 0.2% of the total charges filed in the U.S.
To put it in perspective, Delaware has one of the smallest populations in the country--we rank 45th out of 50. With less than 1 million residents, Delaware makes up less than 0.3% of the nation's population.
Although these numbers do sound positive, employers should remember that the EEOC isn't the only game in town. Because Delaware has a work-share agreement with the EEOC, the Delaware Department of Labor also receives charges of discrimination. In FY 2009, for example, the DDOL took 728 charges. The EEOC, on the other hand, received only 163 charges that year. In short, Delaware employers should look at these numbers with cautious optimism.
And what a fervor it caused! What a frenzy! Twitter was all atwitter with excitement over the promise of some meaningful guidance on the interplay between the National Labor Relations Act (NLRA), and employers' social-media policies. I think it's safe to say that the tone around the blogosphere will slowed significantly by morning.
Why? Well, primarily because we've actually read the report. And, folks, the news is not good. In short G.C. Solomon has made one thing clear--if you are an employer, there is just about no way you can draft a policy that addresses employees' off-duty use of social media that you can feel confident will not potentially run afoul of the NLRA. Or at least of Mr. Solomon's interpretation of the NLRA.
My natural optimism prevents me from reviewing in detail the multitude of provisions that Mr. Solomon found to violate the NLRA. My fellow e-law bloggers, no doubt, will pick up my slack here. I'll give you just one so you have a little taste. Here's the first provision addressed in the memo that, according to Mr. Solomon, violates the NLRA :
[If you mention your employer or your employment in an online post,] don't release confidential guest, team member orcompany information.
Yes. You heard me right. That provision was found to be overly broad in violation of the NLRA. Oh, brother. Boy, oh boy! The NLRB is just killing it, right?!? It publishes three "reports," none of which are binding, none of which constitute precedent of any sort, and none of which have been reconciled by the smartest minds around. It could be said, in other words, that the three reports are worth a whole lot of nothing.
Yet, these three little reports arguably have caused more uproar than the last three employment-law decisions issued by the U.S. Supreme Court. They have effectively prevented numerous employers from implementing a social-media policy. They have, if nothing else, gotten our attention.
I, for one, am ready to move on. Unless and until the General Counsel publishes a report that a lawyer of average intelligence can translate into something useful, I am no longer interested. And what's the consequence of this brazen disregard? Not much. As I've posted previously, the risk of having a policy that is later found to be in violation of the NLRA is that you would have to change your policy and put up a posting about the change.
In the meantime, I'll continue to draft policies that come from the right place (i.e., education and prevention as primary goals), are only as restrictive as they need to be (i.e., no vague or overly broad language), and tie in other applicable workplace policies (e.g., anti-harassment, workplace violence, and reference requests). I'm willing to bet that I'll be in a small group and, if that's the case, the NLRB will be laughing the whole way to the bank.
Acting General Counsel to the NLRB, Lafe Solomon, issued today his third report on social media (pdf). The report addresses 7 recent cases. In 6 of the 7, Solomon determined that the employer's social-media policy was, at least in part, in violation of the NLRA. But in one case, he determined that the social-media policy complied with the NLRA!
Rejoice all of you employers who have worried so about avoiding the scrutiny of the NLRB over social-media policies! You now have a sample to follow! The report included the policy in its entirety. Now there can be no further reason to delay drafting that social-media policy, if ever one existed in the first place.
At our Annual Employment Law Seminar, U.S. Department of Labor Chief of Investigators Kenan Torrans gave an informative presentation on the requirements of the Uniformed Services Employment and Reinstatement Rights Act (USERRA). At the end of the presentation, I jumped in with my two cents and explained that I'd invited Kenan to speak because I think that USERRA compliance will be one of the biggest issues facing employers in the next several years.
One reason for my speculation is that USERRA differs from other employment-discrimination statutes in a number of ways. So employers who may not be familiar with USERRA's specific requirements and attempt to comply by applying rules that are generally applicable to Title VII or the ADA may find themselves to have run afoul of the law.
Another reason for my worries is the statute of limitations or, more specifically, the lack of one. An employee could, for example, return from military service and seek reemployment. Let's say the employer is unfamiliar with USERRA's requirements and denies the employee's request to return to work. The employee may find other work and the employer would think that all is well.
Well, not necessarily. If the employee's replacement job does not pay as well or has lesser benefits, the employee could later file a claim against the original employer. And, by "later," I mean much, much later. As in forever. Because there is no statute of limitations, there is no time limit on when an employee can file a claim.
Which is why a recent decision by the Sixth Circuit caught my attention. In Oswald v BAE Industries, Inc., No. 11-1119 (6th Cir. May 12, 2012), the plaintiff alleged that he'd been terminated due to his military service in Iraq. He filed suit three years after he was let go. The employer moved to dismiss on the grounds that the claim was precluded by the plaintiff's employment agreement, which required all employment-related claims be brought within six months. The court agreed and found that the employee's claims were time barred.
USERRA was amended in 2008 to preclude any statute-of-limitations defense and the employment agreement in this case was signed prior to the amendment. So this would not work in new contracts drafted today. However, it is important for employers who have such provisions in employment agreements already in place.
Delaware employers should be aware of the risks of employees' use of cell phones while driving. It's a recipe for litigation. Delaware employers should have a clear policy prohibiting employees from using cell phones whild driving on company business. The use of hand-held devices while driving is illegal in Delaware and employers should avoid liability for employees' violations of state law. As a starting point, employers should prohibit employees from violating any traffic laws while operating a vehicle on company time.
A recent article in the Washington Post takes these concerns one step further, and discusses several incidents in which employees did serious bodily harm to innocent third-parties while they were driving and talking on cell phones. Pizza delivery companies have also learned this lesson the hard way--you no longer see 30-minute delivery guarantees because franchisors were sued when their employees took up dangerous driving practices to meet the deadlines. One plaintiff won a $21.6 million jury verdict in a case arising from a cell-phone related car accident. Significantly, that accident occurred in 2004, before many states prohibited use of hand-held phones for talking or texting while driving.
If you weren't convinced already , these stories should encourage you to communicate clearly with your employees that, regardless of how important their assignment, they may not violate traffic laws to complete it!
Last week, I appeared on the The Proactive Employer, talking about all things workplace social media with host Stephanie Thomas, and fellow employment-law blogger, Jon Hyman of the Ohio Employers' Law Blog. The 60-minutes was over before we knew it but, lucky for you, if you missed the live version, you can listen to a recording of the show by either streaming it from the Proactive Employer site, or by downloading it from iTunes.
The Freedom Award is an example of the important ongoing effort to support military service members.The Freedom Award is the highest award given by the Department of Defense (DoD) to employers for exceptional support of Guard and Reserve employees. A review board comprised of military and civilian leaders selected 30 finalists from more than 3,000 nominations. Two of the 30 finalists were selected for their support of Delaware reservists--Siemens Corporation in Washington, D.C., who was nominated by an Army Reservist in Glasgow, Delaware; and Kent County Levy Court in Dover, Delaware.
For readers outside Delaware, Dover is the home to the Dover Air Force Base, making the recruitment and retention of military-service members a key objective for employers in Dover and throughout Kent County. Kent County Levy Court was nominated by an employee serving in the Air Force Reserve. The Court supported Guard and Reserve members by regularly featuring a Uniformed Services Employment and Reemployment Rights Act (USERRA) question-and-answer section in its monthly newsletter. The Court also provides a quarterly dinner for families of deployed employees, as well as babysitting services.
The Freedom Award was instituted in 1996 under the auspices of Employer Support of the Guard and Reserve (ESGR), a DoD agency, to recognize exceptional support from the employer community. Since it was first established, 160 employers have been honored with the award. The DoD will announce the 15 recipients of the 2012 Freedom Award early this summer following completion of a national selection board comprised of senior DoD officials, business leaders and prior awardees. Winners will be honored at a dinner in September in Washington.
Congratulations to both Delaware finalists and to all Delaware employers who continue to recognize the value of their military employees.
Delaware's Workplace Privacy Act, H.B. 308 will go to the Delaware House of Representatives one week from today. The Bill, if passed in its current form, would impact all employers, including teachers in the public and private sectors. You can read about some of the many other issues I have with the Bill in my previous posts but, in short, the legislation, as drafted has three main prohibitions.
What the Bill Would Prohibit
First, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant turn over his "password or other related account information" to the employer. Although the intent of this provision is commendable, it, too, has a far broader reach than expected.
Second, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant log into a social-networking site in the employer's presence.
Third, the Bill prohibits an employer from accessing an employee's or applicant's social-networking-site's profile account "indirectly through any other person who is a social networking contact" of the employee or applicant.
In plain English, the Bill prohibits an employer from: (1) asking an employee for his Facebook password; (2) asking an employee from logging into his Facebook account so the employer can see it; and (3) viewing an employee's Facebook page through another person's Facebook account.
How the Bill Would Affect Teachers
One of the many concerns I have with the Bill is that effectively prohibits an employer from investigating claims of employee wrongdoing and, simultaneously, prevents an employee accused of wrongdoing from defending herself. Here's an example:
School Principal gets a call from a "concerned parent," who wishes to remain anonymous. The nameless parent reports that he has reason to believe that a teacher is having an inappropriate relationship with a student. He goes on to say that he has reason to believe that the teacher and student are Facebook friends and have exchanged messages on Facebook that demonstrate wrongdoing.
Principal has received a complaint from a parent that Teacher has had inappropriate contact with Student via Facebook. The complaint appears credible. What will Principal do? What must Principal do? Investigate. Immediately.
Let's assume that Teacher is innocent and that, in fact, Teacher is not Facebook friends with any of her students. Principal calls Teacher into his office and confronts her with the allegation. After recovering from the initial shock of the accusation, Teacher denies any wrongdoing and volunteers to log into her Facebook account and show Principal that there are no students in her list of friends.
But Principal cannot oblige--to view Teacher's Facebook page or her Friends list would violate HB 308. So now what? What is Principal to do? Principal is prohibited by law from investigating the complaint other than by conducting in-person interviews of Teacher and Student. And, since the complaining parent did not disclose his name, Principal cannot request more information to substantiate the allegation.
It seems to me that Principal has one choice--suspend Teacher until the matter can be cleared up. I suppose Teacher could, and would, call upon the Union. But what help could the Union offer?
The scenario described above is not, at all, unlikely. A recent study in the U.K. found that more than one-quarter of all complaints of teacher misconduct with respect to students, including those with and without merit, originate from communications exchanged via social-networking site.
Although the study did not offer an explanation for its finding, I think most of us would agree that the problem is secrecy--when a parent discovers that his child has been engaged in any "secret" conduct, particularly with an adult, the parent is justifiably concerned. The element of secrecy and surprise is what leads the parent to conclude that something is not quite right and to make a complaint to the school.
The Illinois Senate approved a bill banning employers from requesting the Facebook passwords of employees and applicants on Tuesday, reports the Chicago Tribune. If Illinois' Governor signs the legislation, it will become the second state in the country to pass such a law. Maryland was the first--its law takes effect October 1.
The article quotes two lawyers with differing views of the Illinois law. The lawyer advocating for the law is Bradley Shear, who writes the blog, Shear on Social Media, and who played a role in the passage of the Maryland law. Although I am somewhat skeptical about Shear's apparent enthusiasm for this type of law, at least the Maryland version, the drafting of which he was involved in, is fairly reasonable and limited in scope.
The lawyer advocating against the Illinois law is Jeff Nowak, who writes the award-winning Blog, FMLA Insights. Nowak argues that legislation is another example of unnecessary regulation of employers. Nowak is quoted as saying:
The overwhelming number of employers understand that this practice simply does not make much business sense -- it leads to potential employment litigation, internal administrative burdens and an accusation of being tagged 'big brother.'
You may not be surprised to learn that I side with Nowak. The number of employers engaging in this practice is minimal at best. Even the sponsor of the Illinois bill admits that she knows of only a handful of employees who claim to have been subject to this practice--and even those individuals did not disclose the names of these employers who allegedly requested their passwords.
Is it unlawful to fire an employee for being too sexy? Well, it depends. That's the claim that a New Jersey woman filed with the EEOC, though, so she and her lawyer must think so. Lauren Odes, 29, worked in her data-entry job for just one week before she was let go. She claims that there was no dress code in place and that other employees wore very casual "athletic wear," which makes sense given the fact that they were working in a warehouse instead of a traditional office environment. Odes claims, though, that, in the first few days on the job, her supervisors cautioned her that her outfits were too provocative, "her lips and hair, 'too fresh,'" and her breasts too big. On one occasion, according to the Huffington Post, she was given a bathrobe to wear over her clothes.
Finally, she alleges that she was told that she was just "too hot" for the workplace. Gloria Allred has taken up the case. Odes' Charge alleges gender- and religious-discrimination claims.
And where, you might ask, does religion play into this? The employer is owned by an Orthodox Jewish family and, Odes claims, they were trying to impose their religious beliefs on her with respect to appropriate attire. As if there weren't enough irony in this story already, the employer is a lingerie company. It seems to me that the fact that the company sold, in Odes' words, "thongs with hearts placed in the female genital area" would be evidence against Ms. Odes' claim that she was targeted for her religious beliefs.
For my long-time readers, this story may seem a bit familiar. If so, it's likely because this is not the first time I've had the occasion to write about employees who claim to have been fired for being too darn hot. I've written about similar stories on two other occasions--once back in 2008 and then, again, in 2010, when a female employee sued Citigroup, alleging that she was terminated for being "too sexy for her job."
As I wrote a few years ago, judges in Florida may not be Facebook friends with any lawyer who may appear before the judge. (Opinion 2009-20, Nov. 17, 2009). Last month, the Florida Judicial Ethics Advisory Committee made clear that this prohibition extends beyond Facebook. In Opinion Number 2012-12, issued on May 9, 2012, the Committee opined that a judge may not be “connected” to lawyers who may appear before him on any social-networking site—including LinkedIn. The inquiring judge had posited that Facebook and LinkedIn have distinctly different purposes—one for personal use and one for professional use. Therefore, the inquiring judge asked, shouldn’t there be different standards for judges’ use of the two sites?
The Committee did not agree. Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated – often, but not always, selectively to others – that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”
Massachusetts judges also may not be “friends” online with any attorney who may appear before the judge. (Op. No. 2011-6). So can judges in California, although that State’s opinion seems more qualified. (Formal Op. No. 66) (2011). Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.” (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).
But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.
Schools continue to struggle with social media. In particular, teachers’ online interactions with students via Facebook and other social-networking sites continues to be problematic. Some school districts have been successful in adopting social-media policies. New York City, for example, recently implemented social-media guidelines for teachers and staff. But school districts without social-media policies for staff are facing challenging times.
The Democrat and Chronicle.com, for example, reported one such story involving a teacher named Shari Sloane. According to the article, Sloane has no qualms about communicating with students and former students via her personal Facebook page. Some of her colleagues think the practice is unprofessional—others call it unethical. I would call it dangerous.
Another Rochester-area school district, Churchville-Chili Central, adopted a social-media policy in March. The policy prohibits communications between students and teachers other than those that are for “educational purposes only.” Although I commend any school district that recognizes the importance of addressing social media, I do have reservations about the policy.
It seems to me that teachers should not be discouraged from communicating with students. It’s more important that there be a mechanism in place to prevent inappropriate communications from taking place. Thus, there are competing interests--preventing inappropriate communications while, at the same time, without restricting communications that benefit students, even if they’re not purely education-related.
One way to manage these interests is with a policy that prohibits “secret” communications. In other words, a teacher should be able to discuss non-educational subjects with students, provided that those discussions are known or knowable to school administrations and parents. As with most things in the word of social media, transparency is key.
That’s why the New York City policy is a better approach. That policy, according to the N.Y. Times, prohibits teachers from communicating with students via personal Facebook and Twitter accounts but does not impose a general ban on teacher social-media use. Instead, the policy expressly provides that teachers may use social media and recognizes the educational potential of social media. The policy simply says that any communications must be done through district-provided technology. An excellent balance, it seems to me.
A tenured professor at Purdue University has sued the university, alleging that it wrongfully disciplined him after he posted anti-Muslim comments on his Facebook page. According to The Fire.org, Prof. Maurice Eisenstein, an Orthodox Jew, posted a picture on his Facebook page of “Christians killed by a radical Muslim group,” along with written comments questioning the response of moderate Muslims and insulting the Prophet Muhammad.
The Facebook post led to student protests on campus and, later, to anti-harassment complaints by at least two other professors. The professors later filed a second round of complaints alleging that Eisenstein had retaliated against them for their anti-harassment complaints. The university is alleged to have conducted an investigation of the complaints, “forcing” Eisenstein “to go through a full-blown hearing to defend himself.” As a result of the investigation and hearing, Eisenstein was cleared of violating the harassment policy but was found to have violated the retaliation policy. As a result, Eisenstein received written reprimands.
The complaint alleges several counts, including: (1) an “administrative action” claim, which appears to be a due-process claim based on the university’s allegedly “arbitrary and capricious” disciplinary practice; (2) a state constitutional claim, based on the allegation that the complainant-professors “conspired and colluded” with the university’s Chancellor “to deprive Eisenstein of his civil rights” by filing their “unfounded complaints;” and (3) a state-law privacy claim, based on the allegation that the defendants read from a “confidential letter” written by the Chancellor at a faculty meeting.
Based on the complaint alone, these claims seem attenuated at best. Unless there are additional facts not alleged in the complaint that could establish that the professors actually got together and colluded to harm Eisenstein’s reputation by filing complaints of harassment with the university, I would be not be surprised if all three counts were subject to dismissal on the pleadings. Nevertheless, the lawsuit is yet another example of the troubles Facebook use by employees continues to cause employers of every size and in every sector.
On the podcast, we'll be discussing some of the many issues relating to social media for employers, sharing tips on social-media policies, and offering suggestions on how to ensure employees are using social media safely. We'll also be fielding questions and comments from listeners.
The podcast airs live on Thursday, May 24, beginning at 3 p.m. Eastern Time and will be available as a download therafter. I hope you can join us then!
The 3d Circuit's recent decision in Knepper v. Rite Aid opened the door for plaintiffs in wage-and-hour litigation to bring two different types of class actions against their employers in a single lawsuit.
James Fisher was employed as an assistant store manager in a Rite Aid store in Maryland. He alleges that he was misclassified as exempt from the FLSA's overtime provisions and that they are entitled to additional compensation for all hours worked over 40 per week. In June 2009, Fisher joined a nation-wide, opt-in class action brought under the FLSA. At the same time, Fisher filed a Rule 23 opt-in class action under Maryland's state Wage and Hour Law. Faced with two parallel lawsuits, Rite Aid asked the Court to dismiss the Rule 23 state law class action as inherently incompatible with the FLSA's opt-in class action structure. The Court granted Rite Aid's motion, and Fisher and other state law plaintiffs appealed the decision to the Third Circuit.
On appeal, the Third Circuit joined the Second, Seventh, and Ninth Circuits in holding that there is not "inherent incompatibility" between the FLSA and Rule 23. Instead, the Court noted that it was within the trial court's discretion to administer parallel claims. The Court ruled that, notwithstanding Congress's clear intent in creating a unique process for the FLSA, there was no evidence that it intended to impact the litigation of similar state law claims.
There is another important implication of the Knepper decision. Because the ADEA incorporates the class procedures of the FLSA, the 3d Cir.'s opinion opens the door for parallel ADEA and Rule 23 class actions in age-discrimination claims, as well.
Unfortunately, the road just got a little harder for employers facing wage-and-hour litigation. The FLSA is already a notoriously difficult statute to litigate under, and employers may now be faced with parallel FLSA and Rule 23 class actions. In this case, as in all matters, the best defense is a good offense. Misclassification litigation can be avoided by carefully considering the job responsibilities of your employees and consulting counsel if you are in doubt about classification. If you misclassify employees, the penalties are steep and the cost of litigation just got higher.
At our Annual Employment Law Seminar, we discussed the NLRB's adoption of its so-called "quickie-election" rules, which were adopted in December 2011, following the Obama Administration's failure to obtain passage of the "Employee Free Choice Act," a statute designed to promote union organizing by providing for fast elections when a union files a petition for certification.
The new administrative rules are designed to speed the election process. While they are not as draconian as the proposed Employee Free Choice Act, they were intended to, and would have, cut the time from the filing of a petition to an election in half. So-called "quickie elections" favor unions because they limit the time an employer has to respond to union propaganda about the alleged benefit to employees from joining a union.
On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce's request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB's rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.
The quorum issue is more complex that would appear on its face. The Board sometimes acts through "electronic" proceedings. One Board member, Brian Hayes, the Board's sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.
In response to the decision issued, the NLRB has suspended the implementation of the rule changes. NLRB chairman, Mark Gaston Pearce, said the Board is reviewing the Court decision but is "determined" to move forward with the rule changes adopting the "quickie election" process. In a related development, acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices he issued concerning the new election procedures. As a result, the Regional offices will follow the election process and practices prior to the revised rules until further notice. Up to 150 election petitions are affected by the suspension of the quickie election rules.
Surely, this is not the end of the story. We'll keep you posted as the law continues to evolve.
Our Annual Employment Seminar has the topic of presentations on my mind this week. Like many of my employment-law colleagues, I do a lot of public speaking. I recently looked back at my speaking schedule for 2011 and was surprised to see that I averaged almost 1 speaking engagement per week. If it was up to me, I'd likely speak even more often but, again, my day job makes that difficult.
Being a good speaker is not easy--even for those of us who love it. It's a craft and, like any craft, requires lots of practice and continued improvement. One guaranteed way to improve is to watch yourself--nothing shows flaws like a live video recording. A less traumatic way to improve is to watch other speakers. By paying attention to what they do well and what irks you can be a very effective training tool.
Here are two videos to get you started in your studies. The first is an updated version of Don McMillan's Life After Death by PowerPoint:
Delaware is one step closer to legislating employers' ability to manage their workforces. I testified yesterday about the significant flaws in H.B. 308, called the "Workplace Privacy Act." The members of the Telecommunications, Internet, and Technology Committee nodded along, thanked me for my testimony, and then promptly voted to release the bill as is to the House of Representatives. This, my friends, is why I chose the legal profession over a career in politics.
As a result of the Committee's decision, the bill will proceed to the House in its very defective state. I've posted at length about some of the many, many concerns I have about the unintended consequences this bill would have on employers and employees. But, after my experience at Legislative Hall, I have just one additional thought to share.
It seems increasingly clear that the intention of the bill's sponsors is far more expansive than simply preventing employers from trying to get employees' and applicants' passwords. The intent, it seems to me, is to undo the entire body of case law that has been developed regarding privacy rights. In short, the sponsors are attempting to create a reasonable expectation of privacy in online activities and comments. This is directly opposite of what the law provides and would have tremendous implications on employers in every industry and of every size.
One good thing to come out of today's hearing, though, the increased awareness of the problems with this bill by the State Chamber of Commerce and its members. I'll be sure to keep you up to date with any developments over the next two weeks as we get closer to the next step in the legislative process. Until then, though, Delaware residents should consider contacting their state representative and expressing their concerns with the proposed law. Don't hesitate to direct them to the summary I wrote in my prior posts and the Comment Outline, which is linked in the second of the two posts. See Delaware Proposes Facebook-Privacy Law; and Why Delaware's Proposed Workplace Privacy Act Is All Wrong.
It’s only Wednesday but this has been a busy week already. If time allowed, I could write posts on several important employment-law-related topics. But, alas, my day job is keeping me busy, so this short-form recap of some of the more notable items will have to suffice.
On her Ride the Lightning blog, Sharon Nelson writes of a story with similarly disturbing facts. In the case that she discusses, an insurer in a dog-bite case permitted its private investigator to lie about his identity on Facebook so he could spy on the plaintiff—a 12-year-old girl. Folks, if it’s not obvious already, this type of dishonesty is despicable and those who engage in it should not be surprised at the negative repercussions that result.
Show Me the Numbers
The EEOC has released a new set of statistics relating to Charges of Discrimination filed in FY 2011. What is notable about this data is that it marks the first time the EEOC has published private-sector statistics for each of the states and territories. The statistics provide the total number of charges filed in each state and a breakdown of charge by type of discrimination. This is the first time that state-specific information has been released and it offers helpful insight on a more granular level.
Lots of blawgers have reviewed this data as it relates to their particular states. For example, Dan Schwartz wrote about the Connecticut numbers and McAfee & Taft’s EmployerLINC blog posted about the Oklahoma stats. And Chris DeGroff and Matthew Gagnon, of Seyfarth Shaw’s Workplace Class Action blog wrote about the significance of this data.
Another One Bites the Dust
Because I just never seem to grow weary of stories involving smart people who fail to exercise good judgment when using social media, I’ll toss this one to my loyal readers for good measure. In this social-media saga, it’s a CFO who was terminated for improperly communicating company information through his Twitter feed and public Facebook profile. Jon Hyman and Phil Miles recap the story in more detail.
Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only "rarely" and did it for the "exercise" since she "didn't have a gym membership." So she must have been surprised when her "workouts" got her fired from her day job.
The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.
But Tressler ain't buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler's behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.
"Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation," Allred said.
And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.
Delaware's version of a Facebook-privacy law, called the "Workplace Privacy Act" (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware's House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee's or applicant's password to his or her social-networking site.
In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.
I've outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here's the Executive Summary of what I consider are the most dangerous provisions:
No Friending, Even for Family
The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization--even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.
A supervisor whose teenaged son works for the same employer would be prohibited from "requiring or requesting" her son's Facebook password or "other related account information."
Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them
The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.
Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused--regardless of whether the individual wanted to clear his name.
The Rule, Though Too Broad, Is Swallowed By Its Exemptions--for Some Sectors
Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose--i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:
Law Enforcement, who are altogether exempt from the provisions of the bill; and
The Department of Corrections, . . . maybe.
The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited "from accessing an employee's social networking site for purposes of employee supervision and retention."
Pardon me? If you think you know what such purposes may include, I'd love to hear about it.
Don't Say I Haven't Tried
Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I forwarded my prior post and my comments to the sponsor for the Committee's consideration and review.
My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between "employer and employee," which is the only place I believe anything productive can be accomplished.
One of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation. Thus, the concerns raised on behalf of employees are as strong as the problems raised by the bill for employers.
Call to Action, Delaware Employers and Employees
If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.
Does Facebook cause smart people to act dumb? Stories of poor judgment via Facebook continue to make the news and continue to amaze me. But there seems to be no end in sight to the incidents of social-media stupidity. A recent story from Missouri may qualify for this category.
A high-school principal in Clayton, Missouri, is alleged to have created a fake Facebook account under the name "Suzy Harriston," reports the NY Daily News. Before you know it, she had more than 300 friends--many of whom were students at the high-school. A former quarterback outed her, posting her real identity on his Facebook page. The Suzy Harriston account disappeared and, the next day, the school announced that the principal was taking a leave of absence.
The principal resigned following a closed-session meeting of the school board. The school board stated that the district and the principal had "a fundamental dispute concerning the appropriate use of social media."
So, friends, what is the lesson to be learned here? Dishonesty is unacceptable. And dishonesty by a person in a position of trust and leadership is deeply troubling. It is, despite this principal's apparent belief, dishonest to pretend you are someone you are not for the purposes of obtaining information about another. It's called pretexting.
Don't engage in pretexting. Don't be dishonest. And don't endorse dishonest conduct by your employees or by your leaders. The rules are the same, even if the medium has changed.
I had the pleasure of attending an event last week at which humorist Dave Barry was the keynote speaker. As you may be able to deduce from my lunatic-like grin, I am a big fan of Mr. Barry's. I was very excited about hearing him speak and had been looking forward to the event for several months. I wasn't disappointed. Dave Barry was hilarious. The audience was doubled over in their chairs with laughter for most of his talk.
After the event was over, I reflected on the lessons that could be excavated from his talk. What words of wisdom could be parsed from the humor and held like fragile gems of truth to be used later? If you've read Dave Barry's work, either as a columnist for the Miami Herald or as the author of a few dozen books, you likely know the answer already. None.
That's right. Dave Barry didn't impart any words of wisdom or gems of truth. He didn't lecture about the ways in which we could all work to improve the world. And he didn't prosthelytize any political position. He just made us laugh. He told funny stories that were funny because they were true. And the stories made us laugh.
So, what does this have to do with employment law, or human resources, or the modern workplace? In some ways, a lot. I don't know about you, but there are days at work that I wish would be over sooner rather than later. Work can be stressful. And so can life. But the things that raise our blood pressure, usually, are trivial when viewed from the right perspective. The key is in getting the right perspective.
The next time you find yourself grinding your teeth over the day-to-day aggravations of life, try to take a deep breath and relax. Maybe tell yourself (or someone else) a lousy joke that makes you laugh. Or pick up a Dave Barry book and laugh out loud as you read. And remember, things are almost certainly not so bad.
Legislation, both state and federal, prohibiting employers from requesting an employee's or applicant's password continues to make progress. In Particular, the pending bills in California and New Jersey passed to the next level of their respective legislatures yesterday. The first two federal bills of this type of failed but, fear not, a new version has been introduced. Gone is SNOPA; the Password Protection Act of 2012 was introduced earlier this week. In an effort to keep up, I've put together the list below, which includes a reference to each of the states with pending legislation of which I'm aware:
California Bill: Social Media Privacy Act Date: May 10 Status: Unanimiously passed the State Assembly Applies to: Employers; Post-secondar educational institutions Other: Prohibition against "otherwise asking for access" to an account
Delaware Bill: HB 308 Date: Apr. 26 Status: Referred to Committee Applies to: Employers Other: Multiple other provisions
Federal Bill: Password Protection Act of 2012 Date: May 9 Status: Introduced Applies to: Employers Other: Prohibits requests for "access"
Illinois Bill: HB 3782 Date: Mar. 29 Status: Passed House; pending in Senate Applies to: Employers Other: "or other account information for the purpose of gaining access"
Maryland Bill: SB 433 Date: Apr. 9 Status: Approved by Gov.; Enacted Applies to: Employers Other: Prohibits: (a) any request for access to an account; (b) request for user name.
Massachusetts Bill: HD 4323 Date: Mar. 23 Status: Filed Applies to: Employers Other: Prohibits any request for access to an account
Michigan Bill: HB 5523 Date: Mar. 29 Status: Introduced; referred to Committee Applies to: Employers; Educational Institutions Other: Prohibition against requesting user to "disclose access information
Minnesota Bill:HF 2963; HF 2982; SF 2565 Date: Mar. 26; Mar. 29; Mar. 27 Status: Referred to Committee Applies to: Employers Other: None
New Jersey Bill: Bill A-2878 Date: May 10 Status: Approved by Committee Applies to: Employers and Educational Institutions Other: Prohibits asking if user has an account; law-enforcement exemption
New York Bill: Sen. 6983 Date: Apr. 13 Status: Referred to Committee Applies to: Employers Other: (a) Prohibits asking for (i) log-in name, or (ii) "other means for accessing; (b) Exempts accounts owned by employer
South Carolina Bill: HB 5105 Date: Mar. 29 Status: Referred to Committee Applies to: Employers Other: Prohibition against asking for "other related information" to access an account
Washington Bill: SB 6637 Date: Apr. 11 Status: Reintroduced Applies to: Employers Other: Prohibition against asking for "other related information" to access an account
Delaware employers should be most interested (and concerned) with the legislation introduced by Rep. Darryl Scott (Dover). As I've written previously, I believe the proposed law goes far beyond what is necessary and would have significant negative implications for Delaware employers.
The Annual Employment Law Seminar held yesterday at the Chase Center on the Riverfront in Wilmington, Delaware, was a huge success. Thank you to all of the attendees for participating--your enthusiasm and engagement is the key to the program's success.
An extra dose of thanks is due to all of the brave souls who participated in Employment Law Jeopardy, hosted by Bill Bowser.
Next year's seminar will be held on May 9, so be sure to mark your calendars. In the meantime, we always welcome your comments and thoughts about ways we can improve the seminar.
Is a public-sector employee engaging in "speech" for purposes of the First Amendment when he "likes" a post on Facebook? A recent decision from the Eastern District of Virginia concludes that the answer is "no." In Bland v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the Sheriff's Department did not engage in protected speech by "liking" their boss' political opponent's Facebook page. When the boss won the election, he fired six employees, who filed suit alleging 1st Amendment retaliation.
One employee claimed to have sent a "statement of support" to the losing candidate during the campaign. The only evidence presented to the court about such support was that he "liked" the candidate's Facebook page. In declining to find this expression entitled to constitutional protection, the court explained that:
merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements were within the record.
This decision has sparked a lot of fires around the blawgosphere. For example, on the Citizen Media Law blog, Arthur Bright analogizes "liking" to signing an online petition, which certainly would constitute speech. He argues that "liking" a post on Facebook relies on the same type of substantive expression. Venkat Balasubramani and Eric Goldman made this point on the Technology and Marketing Law Blog, as well.
Delaware employers, you've got less than a week to register for the year's most popular employment-law seminar. May 9 is just around the corner, but there is still time to register if you haven't already done so. We've already beat our previous records in number of attendees but there are still seats available.
We are very pleased to announce that Delaware PERB Executive Director Deborah Murray-Sheppard will be joining Bill Bowser, Scott Holt, and Mike Stafford, for the Public Sector Update.
The details, including how to register, are available on the Seminar Event webpage. We hope to see you there!
In some ways, the bill is similar to the Maryland law, which was the first of its kind to be passed into law, and the federal version currently pending in Congress (SNOPA). For example, the Delaware bill would prohibit employers from "requiring or requesting" that any "employee or applicant" disclose his or her social-networking-site password.
The bill goes further, though. Here are some of the more troublesome provisions of the proposed law:
1. The law prohibits employers from requiring or requesting that the user disclose "any other related account information."
This would seem to prohibit an employer from even asking whether the candidate has a Facebook account. There does not seem to be a legitimate reason for such a broad-sweeping prohibition. Moreoever, employers may have good reason to want to know whether an applicant has a Facebook or LinkedIn account. Additionally, isn't this information public in any event, even if access to the account's contents may be restricted?
2. The law also prohibits employers from requiring or requesting that a user log into a social-networking account in the empoyer's presence "so as to provide the employer access" to the user's account or profile.
This, in my opinion goes too far. Although I am not an advocate of this approach, it is not and should not be unlawful. There are certain industries and professions (i.e., the financial sector and law enforcement), that, in some cases, have a legitimate interest in a candidate's online activities. The employer should have the right to gain limited and temporary access the candidate's profile, provided the employer does so in a legitimate and responsible manner.
3. The law also prohibits employers from "accessing" a user's social-networking profile or account "indirectly" through the user's online friend or connection.
Again, this goes too far. And, in my opinion, has deeply troubling (and, likely, unintended), potential consequences. The worst-case scenario would go as follows: Employee reports to Employer that Coworker Posted on Coworker's Facebook profile that Coworker intends to cause harm to his supervisor. The employer has not just a right but a legal duty to prevent workplace violence and would be legally obligated to take stepst to prevent Coworker from carrying out this threat.
But the employer cannot simply fire Coworker based only on Employee's unverified report. It would need to first investigate the Coworker's claim. Most commonly, an employer will do this by asking the reporting Employee to pull up his own Facebook account for the purpose of showing Employer the allegedly threatening post of Coworker. But this provision of the proposed law would prohibit the employer from doing this.
Alternatively, Employer could call in Coworker and ask him whether he posted the threat as reported by Employee. But if Coworker denies making the post, Employer has no recourse and is forced to take him at his word because Employer would be prohibited from "requiring or requesting" that Employee log into the account to clear up the allegation. This, also, is an unsatisfactory result.
The scenarios go on and on. Consider, for example, a report of employee theft. Or an employee who is posting HIPPA-protected personal health information. Or an employee who is posting the employer's trade secrets? The employer would be without recourse in each scenario.
And, making it worse yet, the law would prohibit employers from "discharging, disciplining, or otherwise penalizing, or threatening to discharging, disciplining, or otherwise penalizing" an employee for his or her refusal to provide access.
Although I am not opposed to laws that prohibit employers and educational institutions from demanding an individual's password or log-on information, this bill, as currently drafted, goes far, far beyond what its sponsors likely intended.
I'll be sure to keep readers posted as developments occur.
In the meantime, you can read about what is happening around the country with regard to the issue of "Facebook-privacy laws" here:
Any lawyer will tell you that the practice of law differs greatly between States. Every State has a different legal culture and, in larger States, the culture can vary even more by judicial district. Florida is a great example of this--the way cases are litigated in Miami is tremendously different from the way they're handled in Naples.
Although civility is an excellent principle and serves as a fundamental basis for the way we practice law, it is more of a starting point. Delaware lawyers are expected to (and do) comply with an even higher standard. There may not be a specific rule that says as much but I think most of my fellow Delaware attorneys would agree that we are expected to conduct ourselves with kindness. Courtesies are exchanged without hesitation regularly.
A few examples from my own practice come to mind. One afternoon about a week or so ago, I got a call from a Delaware lawyer who regularly represents employees and, as a result, is a frequent adversary. The lawyer works in a different County and is not often in Wilmington. He said that he had just finished a mediation at the federal courthouse down the street from my firm's new offices and wondered if he could stop by for a quick tour. I'd offered a tour when I saw him at a State Bar event a few weeks earlier.
In the middle of a busy afternoon, I was thrilled that he took me up on my offer and told him to come by before heading out of town. He arrived about 30 minutes later and I gave him the full tour--historic background, architectural design, and all. I was genuinely honored that he took me at my word and that I'd had the opportunity to show off our beautiful new space. And he was genuinely excited to get the chance to see our offices, which are housed in a renovated courthouse, originally built in 1916.
The other example of why I love practicing law in Delaware is a week-long event sponsored by the Litigation Section of the Delaware Bar Association, called "Take Your Adversary To Lunch Week." Normally, when I tell lawyers from other States about this event, they either laugh out loud or stare at me in silence, mouth half open, in sheer disbelief. But don't be skeptical, it's true. This entire week, Delaware lawyers are encouraged to invite a former or current adversary out to lunch.
Litigation can be difficult and stressful, even for lawyers. And, for a variety of reasons, we sometimes let the aggravation of litigation cloud our judgment, causing us to fail in our duty to conduct ourselves with the standards expected of the members of the Delaware Bar. On the rare occasion that this does happen, it is our responsibility to repair any damage before moving on. This event gives us the opportunity to mend fences that should have been previously repaired and to celebrate fences that need no mending!
Each December, I inevitably receive a pile of holiday cards. Some are from clients, some from vendors, and many, many more are from my current and former opposing counsel. That is something that I am so very proud of and consider one of my defining achievements. And it's exactly why I love being a Delaware lawyer.
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