Password-Privacy Bill Approved by N.J. Assembly

Posted by Molly DiBiancaOn June 26, 2012In: Hiring, Privacy In the Workplace, Social Media in the Workplace

Email This Post | Print this Post

The New Jersey Assembly passed that State's version of a password-privacy law yesterday by a vote of 77-0. The Bill, AB 2878, is now sent to the State's Senate, reports NJ.com. Much like the Delaware Workplace Privacy Act, which currently is pending in the Delaware House of Representatives, the New Jersey Bill has some significant flaws.

Like Delaware's Bill, and similar Bills pending in States across the country, the New Jersey Act is being promoted as a "password-privacy" law, intended to prevent employers from asking employees and applicants for their passwords in order to access the individual's social-networking site, such as Facebook or Twitter. However, as I have written about the Delaware Bill, the proposed law goes much farther than that.

In the case of New Jersey's Bill, employers would be prohibited from asking not only for an individual's password, but also for his or her user name and even whether the individual even has a social-networking site in the first place. Even more bizarre is the provision of the law that would prohibit an employer from requiring whether an employee or applicant to provide the employer with "access" to the individual's social-networking site "in any way." It is not clear whether this provision would prohibit a supervisor from sending a Facebook friend request or an invitation to connect via LinkedIn.

This lawmaking trend continues to make the news, despite the continued absence of any stories of employers who engage in the practice. Maryland was the first State to sign a similar law into effect. Illinois was the second State to pass a similar law, which now awaits the Governor's signature. You are welcome to join me for a free webinar on the topic, sponsored by the Employment Law Alliance, on Thursday, July 12.

Free Webinar: Employers' Demands to See Facebook Pages

Posted by Molly DiBiancaOn June 25, 2012In: Seminars

Email This Post | Print this Post

Can employers demand to see an employee's or applicant's social-networking profile? To learn the answer to that and related questions, I hope you will join us for a free 90-minute webinar on Thursday, July 12, from 3-4:30 p.m. EDT.

About the Webinar

Recent press reports indicate that many employers are beginning to require job applicants to disclose their login information and passwords in order to access Facebook accounts and other private information contained in various forms of social media. They are doing this in large part out of frustration due to resume fraud, an inability to obtain meaningful references, and concerns over allegations of negligent hiring. These practices raise a number of significant privacy concerns and legal issues. This session will provide a national perspective on issues including:

  • Why employers are seeking to obtain this information
  • A review of current federal and state laws triggered by these practices
  • An overview of proposed federal legislation and state laws being considered around the country
  • How this practice may affect your corporate culture and ability to recruit the best and brightest
  • Alternative methods for obtaining meaningful applicant information

Speakers

This timely webinar is sponsored by Employment Law Alliance, the world's largest network of employer's lawyers, with members in all 50 states and 140 countries.  Young Conaway is a proud long-time member of the ELA.  I'm thrilled to be presenting on this topic again with Steve Hirschfeld, CEO of the ELA and Partner, Curiale Hirschfeld Kraemer LLP, San Francisco, CA.   Completing the line-up will be Angela Rud of Gray Plant Mooty, Minneapolis, MN, and Kara E. Shea, of Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Nashville, TN.

Registration

Because of our affiliation with the ELA, we are able to offer this webinar to blog readers at no cost.  To register, visit the webinar's page on the ELA website and enter "Young Conaway" as the referring law firm. 

Feel free to share this invitation with as many of your colleagues as you want.  Since registration is per site, only one person needs to register if you will be in the same room listening together.  If you will be in different offices or locations, each person will need to register.  You will listen to the webinar and view the power point slides via your computer; please be sure you are able to do that (instructions for downloading the meeting software will be included in your registration confirmation).  A phone option will be available, but you will need to cover any related charges.

Recap

I hope you'll be able to join us on Thursday, July 12, 2012, at 3:00 p.m. Eastern for what is sure to be an informative webinar on a timely and important topic.

Taking the Mystery Out of Bad Hiring Practices

Posted by Molly DiBiancaOn June 25, 2012In: Age (ADEA), Gender (Title VII), Harassment, Hiring, Interviewing, Jerks at Work

Email This Post | Print this Post

Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show's concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the "leaks in the dam" so to speak.

An episode that aired last week, called, "Managing Disaster," could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant's manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the "Old Lady"

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we'll call him "Manager," despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered "I'm 35," Manager nearly fell out of his seat. He quickly sent her on her way and told her he'd be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah "was like, in her 30s--she'd be like a mother in here!!"

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I'd guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn't already shown his true colors during Sarah's interview, he took it to an entirely new level with Destiney. By the end of the "interview," though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important--"as long as you're cute."

Ethical Standards Lower than a Short Skirt

Seeing that he couldn't ask her about anything relevant to the duties of the job, I guess it's natural that Manager turned to other topics. In this case, Manager chose "partying," and began a series of questions about Destiney's after-hour activities, such as whether she liked to "party" and whether she liked to go clubbing, which "they" (presumably, Manager and his creepy friends), "did all of the time."

The low point of the "interview" came when Manager touched Destiney's knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like "partying" and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant's owner, must have thought as he saw Manager Creepy touch Daughter Destiney's bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren't, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I've perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

Delaware’s Workplace Privacy Act Lives to See Another Day

Posted by Molly DiBiancaOn June 21, 2012In: Delaware Specific, Legislative Update, Privacy In the Workplace, Social Media in the Workplace

Email This Post | Print this Post

Delaware’s version of the “password-privacy” laws currently pending in state legislatures across the country lives to see another day.  H.B. 308, titled the “Workplace Privacy Act,” was released from Committee last month and made it to the House a few weeks ago. It’s slowly been making its way to the top of the agenda and closer to a vote by the House of Representatives.

Last week, I presented on social media at the monthly meeting of Delaware SHRM and, no surprise, the proposed law was a topic on the agenda.  I discussed my concerns with the law as drafted—specifically, the prohibition on an employer asking an employee to show the employer his or her social-networking site for purposes of a legitimate workplace investigation.  (For a more detailed discussion of the potential implications, see my post about a hypothetical allegation and investigation in the education setting). 

After the SHRM meeting, I was approached by several members about what steps should be taken to address the flaws in the legislation as drafted.  I worked with Delaware SHRM to draft a letter for members to submit to their State Representatives about the concerns employers have with H.B. 308.  The letter went out today.

Perhaps as a matter of sheer coincidence, perhaps not, H.B. 308 was amended yet again today. The most critical provision for employers is Section (e) which contains the “permitted acts” for employers. Of most interest in this amendment is the new version of Section (e)(5), which was pitched as the “solution” to the concerns I’ve been raising.  The section, unfortunately, contains several sentences that don’t particularly belong together, which makes it even more confusing.  I’ll do my best to unravel the mystery one sentence at a time.

This Act shall not prohibit any employer from barring employees from accessing social networking sites while performing work for the employer.

Good gracious, let’s hope not!  Of course an employer is allowed to prohibit its employees from using its equipment and/or technology to engage in social networking or anything else unrelated to work during working time.

Employers are permitted to access electronic communication devices which are the property of the employer for the purpose of investigating employee wrongdoing, or otherwise serving the employer’s business purposes.

Again, I think this is pretty obvious, though maybe less so than the previous sentence. In short, it says that an employer is allowed to “access” the smartphones, laptops, tablets, etc., that they provide to employees. In other words, the company can access its own property. 

Notably, though, the Bill purports that an employer may do so lawfully only for the “purpose of investigating employee wrongdoing” or “otherwise serving the employer’s business purposes.”  Supposedly, a charitable purpose or at the request of the employee would not be considered a “permitted act” under the amended Bill.

Where an employer has credible information indicating imminent workplace violence, the employer may question the subject employee as to alleged social network site postings.

Try to not to laugh—it’s not funny.  According to this sentence, in the event there is a credible threat of imminent workplace violence, the employer may “question” a “subject employee” (whoever that is), about his or her social-network-site postings.  Wow.  That’s it? 

Employers are also permitted to access an employee’s social networking site profile or account which is public and non-restricted.

And, finally, an employer is permitted to look at publicly available information that is posted online.  Well, yes.  Of course employers are allowed to look at the Internet and the public information posted online. 

It’s pretty clear to me that this “amendment” may constitute a changed version of the Bill but not an improved version and certainly not the answer to the problems that I’ve discussed previously. 

If you are not a SHRM member but want your voice to be heard on this legislation, I’ve uploaded a modified version of the SHRM letter, which I would encourage you to use as a template for your own letter.  But act soon, there are just two sessions left before the summer recess and the Bill could be voted on as early as tomorrow.

The NLRB's New Webpage Targets Your Employees

Posted by Molly DiBiancaOn June 19, 2012In: Union and Labor Issues

Email This Post | Print this Post

Twitter was atwitter yesterday and today with news of the NLRB's new webpage, titled Protected Concerted Activity. The introductory text on the page states:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.
knight.gif Talk about some great marketing! It seems pretty clear that the message is targeted to non-unionized employees. It's also evident that the NLRB is attempting to promote itself as the defender of all things wrong in the workplace. The image of NLRB as warrior may be a bit more romantic than the image that comes to my mind but c'est la vie.

This newest online marketing campaign should not come as a surprise. The Board's efforts to require employers to post similar information in the workplace have been stymied by the courts, so why wouldn't it take a different avenue? And Internet-based marketing is nothing new to the Board; you may recall my previous post about the love affair between unions and social media.

To say that the NLRB is being proactive about spreading its message to the non-unionized workplace is, perhaps, a bit of an understatement. Employers should be aware of these efforts but should not turn and run. To do so would be to admit defeat and it's far too soon for that! Remember, so far, the efforts have been unsuccessful--unionized employees make up just 7 percent of the private-sector.

Performance Evaluations: Let's Talk About It

Posted by Molly DiBiancaOn June 19, 2012In: Performance Evaluations

Email This Post | Print this Post

Just how useful are traditional performance evaluations? According to a recent study by SHRM and Globoforce, not very. 45% of the HR professionals surveyed reported that performance reviews are not an accurate appraisal of employees' performance. And 42% don't believe that employees are given rewards commensurate with their performance.

Is anyone really surprised by these statistics? I mean, when was the last time you heard a group of HR professionals, managers, or even employees, cheer enthusiastically about the value of the performance review?

Okay, after you've stopped laughing hysterically at the thought, consider the suggestion of Globoforce CEO Eric Mosely in his post on the Harvard Business Review Blog. Mosely's idea is to "crowdsource" your organization's next performance reviews. In other words, solicit regular feedback from everyone who works with employee being reviewed. Don't limit your sources to only the employee's manager or direct supervisor. And don't wait until the end of the year and expect the reviewer to have sudden recall of the past 12 months.

I'm not entirely sold on the idea, frankly, but also am not entirely opposed to it. How could I be opposed to an improved performance-evaluation system? After all, I, too, am an employee and I, too, suffer through the annual review process. But crowdsourcing?

One concern I would have is the potential karma-inducing effect. If I know that my annual review is dependent on ongoing commentary made by coworkers, I wonder if I wouldn't, consciously or subconsciously, dole out extra servings of positive commentary to my own coworkers in the hope that they would feel the love and pass it right back to me. Would we, at the end of the day just be patting one another on the back as a defensive mechanism?

How can the idea be improved? I do have one suggestion--remove the "independent" factor. Instead of having coworkers give their comments independent from and without the input of others, who may also be submitting feedback. Instead, what if the commenters were required, at least once a year, to meet and discuss the comments they've given or intend to give.

At least in the legal profession, my colleagues and I have no problem battling it out to defend our positions. If reasonable minds and voices can prevail, such a discussion may give commenters a more accurate perspective with which to frame their comments prior to their submission.

I can imagine that this technique would be particularly beneficial where an instance of poor performance was an isolated instance. If the commenter was able to hear about positive performance examples, it may help put the negative experience into context. Or, if a commenter has unreasonably high expectations, hearing others discussing their own standards may, again, provide some needed context.

At the end of the day, as I've previously written, it's hard to write a good performance evaluation. Any effort to improve a defunct system is a positive step in the right direction. Even if it doesn't remove all of the flaws, forward is always better, so I'd encourage employers to try it and see whether it works for their particular workforce.

Social-Media Screening Company Runs Afoul of FCRA

Posted by Molly DiBiancaOn June 17, 2012In: Background Checks, Social Media in the Workplace

Email This Post | Print this Post

Employers' use of social media as part of the hiring process continues to make the news. Although much has been made of the nuances of the idea, cyber-screening can be performed lawfully and with positive results--when it's done properly. When it's not, though, there can be lots of significant consequences.

To avoid the risks associated with cyber-screening (or to combat a fear of the unknown, perhaps), some employers have turned the task to outside vendors. Instead of performing a Google search on a candidate as part of the in-house screening process, some employers are paying a third party to conduct the search as part of the background check.

I recognize that many companies feel that this reduces the risk that they'll be sued for failure to hire. But the idea of outsourcing this process seems to significantly reduce the benefits. Employers like cyber-screening, in part, anyway, because it's free and gives immediate results. Outsourced screenings cost money and take time.

And there's another downside to using a vendor for this process. Once you involve a third party in the background-check process, you are obligated to comply with the very specific requirements of the Fair Credit Reporting Act (FCRA). If you use a vendor to perform background checks of any kind, you're already familiar with these requirements. You also already know how important it is that you use a reputable vendor who will meet all of its obligations under the FCRA.

So maybe that's why the Federal Trade Commission (FTC) is so ticked off at Spokeo, one of the handful of new businesses that market themselves as a social-media-search provider. The FTC's complaint alleged that the company failed to follow the FCRA's requirements when conducting its social-media searches on behalf of employers. The complaint also alleged that Spokeo's managers encouraged employees to post online reviews of the company in violation of the FTC's endorsement guidelines, reports Information Week.

Spokeo has agreed to settle the lawsuit but it's going to cost 'em. The consent order that will resolve the suit, if approved, would require Spokeo to pay an $800,000 civil penalty and remain under Court supervision for 20 years.

This is quite a jump from the FTC's recent approval of a different social-media screening company. So which is it--can employers outsource these searches safely . . . or not? What's the lesson here for employers? Simply put--seek qualified legal counsel to help you ensure that your hiring practices comply with the law. Hiring is a critical component of the employment process and it is a worthwhile investment to get it right the first time around.

For more about the FTC's endorsement guidelines, a critical component of any social-media policy, see:
Another Reason Employers Need a Social-Media Policy: New FTC Regulations
Turns Out FTC Actually Expects You to Follow Its Rules
FTC Is Not Amused by Employees' PDA for Their Employees

A Water Main Break, a Creek, and Other Work-From-Home Distractions

Posted by Molly DiBiancaOn June 15, 2012In: Telecommuting

Email This Post | Print this Post

I'm working from home today but not by choice. Our office is quasi-closed today as a result a water main break just a few blocks away from our building in Wilmington, as shown in the video below by 6abc.

Of course, just because I can't go to the office to work doesn't mean I get to take the day off--the work still must be done. In the era of mobile computing and the paperless office, this does not present much of a technological challenge. I have ready access to everything I would have access to if I were sitting at my desk. Well, everything but my multiple-monitor computer set-up, I suppose.

But I digress. Which brings me back to my original point.

Working at home is hard. For me, anyway. I am too easily distracted. By the cat, who is as cute as can be and who just loves it when he's got a lap to sit in, pesky laptop be damned. By the bonsai tree that could use a meticulous pruning. By my car, which is calling to me at this very moment, asking that I give her a nice wash, followed by a leisurely drive with the top down.

Blue Heron


By the view from my deck of the Brandywine Creek, which is as beautiful and serene as one might imagine a lazy creek to be on a clear day in June. Or the Great Blue Heron who, and I am not making this up, is perched on a rock, looking for lunch, at this very moment.


Or the rose garden at the end of my street, which is in full bloom and beautiful beyond belief.


I live in a park, people! It's not my fault that I'm surrounded by all of these incredible distractions! Blame Mother Nature!


Josephine Rose Garden


But, again, I digress. The point that I am trying to get around to making is that, as a general rule, working from home really doesn't work for me. At my desk, I'm a disciplined, focused, work-generating fool of a task-master. But at home, I find that I mostly just walk in circles.


Maybe I'll read some news articles to help me find the working-from-home sweet spot. For example, the Top 10 Mistakes Everyone Makes When Working From Home on Forbes.com. Or How to Work From Home Without Losing Your Mind (or Your Job) by Ask a Manager's Alison Green at US News' On Careers blog. According to Attorney Marketing blog, 2% of lawyers work from home all of the time. And good for them--there are plenty of benefits of telecommuting for those who have the self-control to stay on task.

Or maybe I'll just get back to work. Wish me luck and have a great Friday, wherever you may be today!

Ethical Lawyer Blogging in Virginia

Posted by Molly DiBiancaOn June 14, 2012In: Purely Legal

Email This Post | Print this Post

A three-judge panel in Virginia has issued its decision in an important case for lawyers who blog or who are thinking of starting a blog. The case involved the appeal of a ruling by Virginia State Bar Association's disciplinary committee about a blog written by Virginia lawyer Horace Hunter. The committee originally pursued a complaint against Mr. Hunter when he refused to include the exact disclaimer required by the Bar Association.

I was lucky enough to appear on an all-star panel of speakers, including Mr. Hunter, a few months ago, when we presented a CLE hosted by the ABA, titled, Is Your Legal Blog Compliant? To learn more about the specific facts leading to the complaint, I'd strongly recommend the episode of the Legal Talk Network podcast, Lawyer 2 Lawyer, on which Mr. Hunter was a guest.

There were two issues before the panel. First, whether Mr. Hunter had breached his duty of confidentiality pursuant to Rule 1.6 by writing about his clients' cases on his blog. The information contained in the blog posts was publicly available. The panel overturned the finding of misconduct by the State Bar's disciplinary committee.

Second, the panel was presented with the question of whether Mr. Hunter could be required by the State Bar to include a disclaimer on his blog. The panel upheld the committee's determination that a disclaimer was required in accordance with the attorney advertising rules set forth in Rules 7.1 and 7.2. Specifically, the disclaimer must state that results may vary from case to case, depending on the facts.

All lawyers--even those who do not blog--should look more closely at this decision and at the facts and arguments leading to this point. Mr. Hunter's arguments regarding the First Amendment implications of attorney advertising, particularly in the context of legal blogs.

See also, VA Lawyers' Weekly; Washington Post's Capital Business Blog; and Above The Law.

Guns In the Workplace: Implications of Open-Carry Laws

Posted by Molly DiBiancaOn June 12, 2012In: Workplace Violence

Email This Post | Print this Post

Prof. Stephen Bainbridge makes a great argument against state laws that permit employees to store guns in their cars. In his post, Guns vs. At-Will Employment, Prof. Bainbridge discusses a recent decision by the Kentucky Supreme Court interpreting that state's gun laws. In its opinion, the Court found that an employee who was fired for having a handgun in his car (for which he had proper license), could bring a wrongful-termination suit against his employer, the University of Kentucky. Prof. Bainbridge concludes that these state laws constitute a significant and problematic exception to the employment-at-will doctrine.

On McAfee & Taft's EmployerLinc blog, Charlie Plumb recently wrote about a new law in Oklahoma that raises similar issues. "Concealed-carry laws" also took effect last year in Wisconsin and Texas.


Employers, Are Your Employees Minding Their Own Business?

Posted by Molly DiBiancaOn June 11, 2012In: Jerks at Work

Email This Post | Print this Post

Employees send a lot of emails at work. Goodness knows, the emails in my inbox never seems to stop piling up. And I think we can all agree that emails we send at work aren't always work related. So what do we talk about when our emails are not strictly business?

A pair of Georgia Tech researchers have published their take on the answer--but you may not want to know what they found. According to Tanu Mitra and Eric Gilbert, in their paper, "Have You Heard? How Gossip Flows Through Workplace Email" (PDF), found that more than 1 in every 7 emails sent at work contains workplace gossip.

The study evaluated more than 500,000 emails sent by Enron employees and looked for The authors define email "gossip" as an email in which an employee is mentioned in the body of the text but not included as a recipient. The study has lots of juicy findings:

1. Who Engages In Email Gossip?
Workplace gossip is common at all levels of the organizational hierarchy. [No big shock here.] Employees are most likely to gossip with their peers and employees at the bottom of the corporate hierarchy are responsible for a large portion of email gossip.

2. What Types of Emails Include Gossip?
The study concludes that gossip appeared as often in personal exchanges as it did in formal business communications. Emails that are targeted to a smaller audience are more likely to contain gossip.

3. How Gossip-y is the Gossip?
Negative gossip appeared in emails 2.7 times more often than positive gossip. At the risk of stating the obvious, this is not a good finding for employers. If true, it would mean that, not only are employees wasting lots of time with gossiping emails but that they're probably doing some real harm to workplace morale. Employers, how much are you spending to pay employees to stir the pot? Nobody likes a pot stirrer.

4. And, a random but fascinating finding:
Mid-level in-house lawyers contribute the second-highest amount of downward-flowing gossip. Yikes! I won't even attempt to rationalize this finding. I'd say that I will take a harder look at my own practices but I never send non-work-related emails during working time. [Particularly when my boss may be reading this post!]

It's a fascinating subject matter and an equally fascinating paper.
[H/T Workplace Diva]

Privacy 3.0: Delaware Bench and Bar Recap

Posted by Molly DiBiancaOn June 8, 2012In: Locally Speaking, Privacy In the Workplace, Seminars, Past

Email This Post | Print this Post

I had the honor of serving as moderator for the CLE program at Delaware's Annual Bench and Bar conference,the largest annual gathering of lawyers and judges. The program was titled, Privacy 3.0: Legal and Ethical Implications in the Courtroom, in the Workplace, and in Public. I was amazed at the quality of the presentations and speakers.

Privacy In the Courtroom: Jurors
The first session, Privacy in the Courtroom, was presented by two super-stars. First up was Thaddeus Hoffmeister, whose blog, Juries, is, hands down, the go-to source for the latest news relating to the impact of new technology on jurors. Thaddeus led a fascinating discussion about the privacy rights of jurors. Some of the questions that he raised were:

Do lawyers have a duty to conduct online research about potential jurors? Do lawyers have a duty to monitor jurors' online activity once empaneled? What constitutes "contact" in this context? For example, if you follow a juror on Twitter and he gets an email notification of it, this would be considered "contact" and you'd be running afoul of the ethics rules. And, finally, when must a lawyer disclose to the other side and to the court information that the lawyer finds that indicates juror online misconduct?

Thaddeus' presentation was amazingly current. Several attendees noted that he discussed several cases and opinions that were issued in the past two weeks! To learn more about these cutting-edge topics, check out his top-notch blog.

Privacy In the Courtroom: Journalists
Next up was Sean O'Sullivan. Sean has been reporting on Delaware's federal and state courts for more than a decade. Although Thaddeus was a tough act to follow, Sean absolutely rose to the challenge. In fact, Sean really impressed me--not only is he an all-star reporter but, apparently, an equally outstanding public speaker! Sean spoke about the current rules (written and unwritten) for reporters. He addressed the following issues:

Should there be live blogging and tweeting from the courtroom? If yes, should it be considered a privilege limited to journalists? And, if so, who is a "journalist" in today's world of new media?

Sean told attendees about an interesting development in the Sandusky trial. As reported in the major news networks late last week, the judge in the case announced that he would permit tweeting from the courtroom but with the caveat that the tweets could not include actual quotations.

Journalists moved the court to clarify what that meant--surely the court did not mean that only inaccurate quotations? Did the court mean that journalists had to paraphrase any tweets? In response to the motion, the court changed its mind and ordered that it would not permit live tweeting from the courtroom after all.

Further proving how current the speakers were, Thaddeus has written about the juror-investigation issue in the Sandusky trial.

Privacy In the Workplace
I was lucky enough to co-present this session with Steve Hirschfeld. Steve is the CEO of the Employer's Law Alliance, the world's largest network of employment and labor lawyers. Steve is an incredible speaker but it was his international experience is what really made the session outstanding.

Steve and I talked about the challenges facing employers that have led them to consider the use of social media, particularly in the hiring process. Then we reviewed some of the several ways employers are using social media as cyber-screening tools and gave our (somewhat diverging) thoughts on the pros and cons of those tools. In that context, we reviewed the legal implications of those tools. And, finally, we discussed the recent movement in several states to legislate these strategies, including, as you may have guessed, my thoughts on the unfortunately worded Delaware effort in this regard, H.B. 308.

Privacy In Public
The speakers for this session were the A-listers of the program. Sharon D. Nelson and John Simek of Sensei Enterprises presented a captivating story about how law enforcement used digital forensics to catch the Craigslist killer. Both Sharon and John are real pros behind the podium and everyone was so riveted by their storytelling that we hardly noticed how much substantive knowledge they had imparted.

Undoubtedly, my biggest take-away from their presentation was that there is no privacy in public--particularly when the government wants to know what you're doing, where you're doing it, and when you're doing it. For additional doses of disturbing reality regarding the lack of privacy, check out Sharon's award-winning blog, Ride the Lightning.

A Round of Applause
I can't thank the speakers enough for their participation in yesterday's event. It was a tremendous success as a result of the quality of all of the speakers who were so generous to donate their time and travel to Delaware for the event. Thanks, also, to all of the attendees for their insightful questions and discussion after the CLE.

Return-to-Work and Fitness-for-Duty Examinations Following an Employee's Medical Leave

Posted by Adria B. MartinelliOn June 7, 2012In: Family Medical Leave

Email This Post | Print this Post

Yesterday, I presented a section of the FMLA Master Class. In my session, we discussed mandatory return-to-work exams done by the employer's selected doctors. There were lots of questions on this issue as many employers continue to require return-to-work exams as a matter of course before employee can return to work after FMLA leave. In many instances, such a practice will be in violation of the ADA and the FMLA. I promised a more thorough discussion of the issue, so here it is.

FMLA Regulations on Return-To-Work and Fitness-for-Duty Exams

The FMLA regulations state the following:

  • As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition), who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process. See §825.305(d).
  • An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The certification from the employee's health care provider must certify that the employee is able to resume work. Additionally, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee's job no later than with the designation notice required by §825.300(d), and must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions. If the employer satisfies these requirements, the employee's health care provider must certify that the employee can perform the identified essential functions of his or her job. Following the procedures set forth in §825.307(a), the employer may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 29 CFR § 825.312

These regulations make clear that the normal fitness-for-duty certification as prerequisite to return to work after FMLA leave is to be completed by the employee's own health care provider, not the employer's doctors. And a second opinion may not be requested. The requirements that it is uniformly applied and employee receives notice, relate to a fitness-for-duty certificate coming from the employee's HCP, not a return-to-work exam conducted by the employer.

Therefore, what is an employer to do when it has a genuine concern about an employee's ability to effectively perform the functions of his or her position, notwithstanding a cursory note from the employer's doctor stating otherwise? Under the FMLA, it appears the employer is out of luck.

ADA Comes to the Rescue - Sometimes
Here's where ADA may come to the rescue. The FMLA regs state that ADA requirements apply, and under the ADA employers have the right to conduct medical examinations to determine whether an employee can perform the essential functions of his or her job (with or without reasonable accommodation) in certain situations. Therefore, after an employee returns from FMLA leave, a medical examination at an employer's expense by the employer's health care provider may be required if it is job-related and consistent with business necessity. A number of cases have explored what qualifies as "job related and consistent with business necessity." The key criteria are as follows:

There is a reasonable basis for the exams.
The employer must have a "reason to doubt the employee's ability to perform the essential functions of the job." For instance, a discrepancy between the doctor's original letter and return-to-work certificate would be a reasonable basis. But, short of information from the employee's own provider which leaves doubt, what will at court consider a "valid reason to doubt the employee's ability to perform the job?" Certainly, direct observation of the employee's physical restrictions, on or off the job, would be sufficient. Many employers, however, seem to feel it is their right to have their own HCP conduct an exam, when there is little or no objective basis for doubt of what the employee's HCP is telling them. It appears that courts in very limited circumstances have found such exams as "job related and consistent with business necessity - when the reason for leave directly related to and impacted the employee's ability to safely perform the job. For example, a police officer who breaks his arm. His ability to carry and discharge a gun is so critical to his safe performance if his job duties, that if his employer required a RTW exam narrowly tailored to the use of his arm, this would probably be upheld even if there was not a reasonable basis to doubt the officer's HCP opinion that his arm was fully functioning.

The exams are narrowly focused.
The medical exam should seek only information about the effect of the particular injury or illness that necessitated the leave on the employee's ability to return to work. Don't request a general physical or a return-to-work certificate stipulating the employee is in "good health." This again, is where many employers get into trouble. Many employers require the employees to provide medication information far beyond the original condition generating the leave. The more narrowly focused the RTW exam is, the less likely a court will delve into whether or not there was a reasonable basis for the exam in the first place.

The medical examination requirements are applied consistently.
Of course, as with all employment best practices, similarly situated workers must be treated the same.

Bottom Line
If your organization requires return-to-work physicals by its own health care provider as a matter of course for employees returning from FMLA leave, you need to take a close look at this practice. If you don't have a reasonable basis to believe the employee is unable to perform their duties safely, then you should not be requiring these exams. If you maintain this practice despite my advice otherwise, you should ensure that they are narrowly tailored to the injury or illness that necessitated the leave. Failure to narrowly focus the exams or to have a reasonable basis to conduct them in the first place will leave your organization exposed under both FMLA and ADA.

June 6: FMLA Master Class

Posted by Molly DiBiancaOn June 5, 2012In: Seminars

Email This Post | Print this Post

The Family and Medical Leave Act has been a part of the workplace for more than a decade, so it's gotten easier for HR to administer, right? Not so. Confusing regulations, coupled with numerous recent changes at both the legislative and regulatory levels and conflicting court decisions, ensure that FMLA continues to be one of the biggest compliance headaches for employers.

The FMLA Master Class can help you clarify the confusion surrounding the numerous legislative and regulatory changes to the Family and Medical Leave Act and get answers to all your FMLA questions at this advanced-level seminar just for Delaware employers.

Details:
Wednesday, June 6, 2012
Holiday Inn Select -- Wilmington
630 Naamans Road
Claymont, DE 19703
302.792.2700

Seminar Fee:
Just $397 per person
Just $297 for each additional person from your organization

Visit HRhero.com to see the full agenda and to register.

Privacy Claim for Employer's Shoulder Surfing of Employee's Facebook Page

Posted by Molly DiBiancaOn June 4, 2012In: Social Media in the Workplace

Email This Post | Print this Post

When can an employer ask an employee to show the employer a coworker's Facebook page? My friends, that question is getting more difficult to answer. State legislators across the country are attempting to pass laws that would prohibit this and similar conduct under most circumstances. Delaware's proposed "Workplace Privacy" law would prohibit it in every instance--even if the employer has a legitimate business-related need to investigate misconduct, for example. A recent decision from the District of New Jersey makes one thing clear: nothing is clear when we're talking about privacy interests and Facebook.

The Facts

The plaintiff, Deborah Ehling, was hired by the hospital in 2004 as a registered nurse and paramedic. In July 2008, Ehling took over as Acting President of the local union for paramedics. In this role, she was "very proactive" in her efforts on behalf of union members and filed numerous complaints and charges against the hospital. Ehling alleged that, when she became President of the Union, the hospital engaged in retaliatory conduct against her, ending in her termination in July 2011.

Ehling was Facebook friends with many of her coworkers but not with any members of hospital management. Her profile was private and could be viewed only by her friends.

Ehling alleged that the hospital gained access to her Facebook profile when a supervisors "coerced, strong-armed, and/or threatened" one of Ehling's coworkers into accessing his Facebook account in the presence of a supervisor. The supervisor then viewed and copied Plaintiff's Facebook posts. The hospital later sent a copy of one of Ehling's Facebook posts to the State Department of Health, stating that it was concerned that it showed a disregard for patient safety. Plaintiff alleged that the letter was a "malicious' attempt to attack Plaintiff's reputation, her job, and her nursing license and paramedic certification.

The Claims

The hospital moved to dismiss 2 of the 9 counts in Ehling's Amended Complaint: (a) a state-law statutory claim under the New Jersey Wiretapping and Electronic Surveillance Control Act; and (2) a state-law tort claim for invasion of privacy.

The court dismissed the Wiretapping count because the supervisor did not access the Facebook posts "in the course of transmission," which is a required element. The court concluded that, like the federal Wiretapping statute, the New Jersey Act does not apply to electronic communications once they are received. The court held that the Amended Complaint alleged that the posting was "live on the Facebook website for all of Plaintiff's Facebook friends to access and view." Thus, the post was no longer in transmission when the defendant allegedly accessed it.

The court did not dismiss the privacy claim. The hospital moved to dismiss this count on the ground that Plaintiff did not have a reasonable expectation of privacy in her Facebook post. The court rule that "[p]rivacy in social networking is an emerging, but underdeveloped, area of case law." The court noted that there are cases on both ends of the "privacy spectrum"--some courts have found that there is absolutely no expectation of privacy once information has been posted online; whereas other courts have found a reasonable expectation of privacy exists for individual, password-protected online communications.

Because the law "has not yet developed a coherent approach to communications falling between these two extremes," the court declined to dismiss the claim, finding that Plaintiff had stated a plausible claim for invasion of privacy "especially given the open-ended nature of the case law." In other words, the Court punted on the question of whether the plaintiff had a reasonable expectation of privacy in her Facebook posts.

The Take-Away for Employers

On Eric Godman's Technology & Marketing Law Blog, Venkat Balasubramani, who alerted to me to this case via Twitter message (Thanks again, Venkat!) wrote an insightful post about several of the legal issues in the case. He also uses a term I heard only recently--"shoulder surfing"--which refers to a person who stands behind an internet user and watches the user's browsing activity. What I take away from the case is more back-to-basics than Venkat's more sophisticated approach.

In short, assuming everything alleged in the Amended Complaint are true, the key employer take-away is this:

Don't look for trouble or you just may find it.

If the supervisor did not have a reason to look at the employee's Facebook page--i.e., to go snooping around without reasonable suspicion of some conduct that would have harmed the hospital or prevented Ehling form performing her job duties is a bad idea. It makes you seem like you're prosecuting the employee, being malicious, and/or, as was alleged here, engaging in retaliation.

Ehling v. Monmouth-Ocean Hosp. Serv. Corp., No. 2:11-cv-03305-WJM (D.N.J. May 30, 2012).