Delaware Proposes Facebook-Privacy Law

Posted by Molly DiBiancaOn May 3, 2012In: Delaware Specific, Privacy Rights of Employees, Social Media in the Workplace

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Delaware has joined several other States in proposing a Facebook privacy law, which would prohibit Delaware employers from requesting access to a candidate's Facebook or other social-networking site.

The proposed law, the "Workplace Privacy Act" (H.B. 308) is sponsored by Reps. Darryl M. Scott and William J. Carson and was introduced on Tuesday, May 1.

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.

4. Anti-Retaliation
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:

Maryland Law Makes It Unlawful to Request Facebook Passwords
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
More States Consider Facebook-Privacy Laws
Should Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords
Federal Legislation, SNOPA, Would Prohibit Employers from Facebook Snooping

Why I Love Being a Delaware Lawyer

Posted by Molly DiBiancaOn May 1, 2012In: Delaware Specific

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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.

In Delaware, we have one standard. It makes no different in which of the three counties you practice, all Delaware lawyers are expected to abide by a certain standard of professional conduct. In a single word, the Delaware standard could be described as "civility," according to our Principles of Professionalism for Delaware Lawyers (PDF). See also Delaware Superior Court's Expectations for Professionalism and Civility in a Courtroom Setting (PDF).
I love Delaware (Laywers).png

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.

Fed. Legislation, SNOPA, Would Prohibit Facebook Snooping

Posted by Molly DiBiancaOn April 30, 2012In: Background Checks, Hiring, Social Media in the Workplace

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Employers who request an employee's or job applicant's Facebook password continue to face pushback in legislatures across the country. As I posted last week, several states have introduced bills that would prohibit this type of coerced Facebook access. These states are following Maryland's example--Maryland was the first (and only, at the moment), to pass this type of law.

Two U.S. Senators were the first on the bandwagon, though, but their bill was unsuccessful. But a new version of the bill made its way back to the House of Representatives on Friday, courtesy of New York congressman Eliot Engel (D).

The bill, Social Networking Online Protection Act (SNOPA), which is cosponsored by Rep. Jan Schakowsky (D-IL), would restrict current or potential employers "from requiring a username, password or other access to online content," reports ZDNet.com. Specifically, the bill would prevent employers from seeking access to social networking sites "to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information."

SNOPA, like some of its state-law counterparts, would extend to colleges, universities and K-12 schools.

Stay tuned as this rapidly changing area of the law continues to develop.

See also:
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
Maryland Law Makes It Unlawful to Request Facebook Passwords from Job Applicants
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
Should Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords

EEOC Publishes Guidance on Consideration of Arrest and Conviction Records

Posted by Adria B. MartinelliOn April 28, 2012In: Background Checks, Hiring

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The EEOC released Guidance on the Consideration of Arrest and Conviction Records Under Title VII of the Civil Rights Act of 1964 (PDF)
This guidance, issued on April 25, 2012has been much anticipated since the EEOC held a public hearing on this topic last summer. If you were not already aware of the issue, the crux is this: arrest and incarceration rates are significantly higher in certain ethnic groups than others. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Therefore, if an employer exclude individuals based solely on their criminal records, that decision is likely to disproportionately affect certain ethnic groups, thereby violating Title VII.

The Guidance discusses the difference between arrest and conviction records, and explains what factors must be considered in determining whether or not consideration of criminal history will be determined to be "job related and consistent with business necessity."

The Guidance does not, however, address credit checks, which were also the topic of a public hearing by the EEOC. Some sources have indicated initial drafts of the guidance provided that there would almost never be a business necessity to use credit for employment--and stirred up quite a bit of controversy. For now, though, it remains to be seen what the final guidance on credit checks will say.

The release of the Guidance on criminal records was perfectly timed with YCST's upcoming Annual Employment Law Seminar, on May 9, when Lauren Moak and I will discuss the topic of background checks in a dedicated session. For a complete analysis of this Guidance and what it means for employers, we will see you there!

Public Questions Firefighter's Facebook Post re: Trayvon Martin Case

Posted by Molly DiBiancaOn April 24, 2012In: Public Sector, Social Media in the Workplace

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Facebook indiscretions. Employees continue to make headlines by displaying bad judgment in circumstances ranging from the banal to the deeply disturbed. And employers continue to face difficult choices. Private-sector employers face possible claims under the NLRA. Public-sector employers face possible First Amendment claims.

Some cases, though, present a compelling case for employer action in response to Facebook comments posted during off-duty time. This is one of those case.

Miami-Dade Fire Department Captain Brian Beckmann posted a comment on his Facebook page about the Trayvon Martin case. Beckmann's post took aim at the prosecutor in the Martin case and claiming that "urban youth" are the products of "failed sh*tbag, ignorant, pathetic, welfare dependent excuses for parents."

A source who viewed the post sent a copy of it to thegrio.com, which broke the story. As you may imagine, many members of the public have raised serious doubts about Beckmann's fitness for duty as a public servant.

The racist nature of the posts also raises questions about what an employer can and should do when it learns of an employee's Facebook posts that seem to conflict with the employee's job duties.

[H/T Richard D. Tuschman at HR Defense Blog]


More States Consider Facebook-Privacy Legislation

Posted by Molly DiBiancaOn April 23, 2012In: Background Checks, Social Media in the Workplace

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Maryland was the first state to pass legislation prohibiting employers from requiring an employee or applicant to turn over his or her Facebook password or log-in information for other social-networking sites.

On April 19, 2012, a similar law moved forward in the California state legislature.

And there are others. Here's a quick run-down of other states that are considering similar legislation:

See also:
Employers Who Demand Facebook Passwords From Employees. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employers' Demand for Employees' Passwords


California Moves Closer to Privacy Law for Facebook Users

Posted by Molly DiBiancaOn April 20, 2012In: Background Checks, Social Media in the Workplace

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Maryland was the first state in the country to pass legislation that would prohibit employers from requesting or requiring an applicant or employee to turn over his or her password to a social-networking account, such as Facebook. As I mentioned in the end of my post about the Maryland bill, California and Illinois had similar pieces of legislation in the works.

Yesterday, California inched closer to become the second state to adopt this new type of privacy law, reports the Sacramento Bee.

Senate Bill 1349 bans employers and educational institutions from requiring or formally requesting in writing that prospective or current employees and students to hand over their user names and passwords or provide access to the account. The bill, introduced by Sen. Leland Yee (D), was approved by the Senate Education Committee 7-0 and now heads to the Senate Labor and Industrial Relations Committee for consideration.

See also
Employers Who Ask for Applicants' Social-Media Passwords. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employer's Demand for Applicants' Facebook Passwords

Facebook Message Leads to Disability Claim

Posted by Molly DiBiancaOn April 20, 2012In: Disabilities (ADA), Social Media in the Workplace

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Can a Facebook friendship between an employee and her supervisor lead to a claim of disability discrimination under the Americans With Disabilities Act (ADA)? Have a look at the facts in a recent case from a federal court in Seattle, Washington and you can decide for yourself.

The plaintiff, Ms. Peer, was employed by F5 for just a month when she told the company that she was experiencing chronic pain and, as an accommodation, requested that she be permitted to work a reduced schedule. The employer obliged and Peer began working 30 hours per week, using paid and unpaid time off to cover the 10 hours per week that she needed to retain her full-time status.

After two months on a reduced schedule, Peer was diagnosed with major depression. The following month, she was released to return to her 40-hour week. A few weeks later, she was assigned to an early shift--6 am to 3 pm. She emailed her supervisor:

this shift is really stressing me out and exhausting me . . . [and] . . . the thought of having to do it for another 6 or 8 months or longer is making me really depressed.

The following day, she sent a Facebook message to her boss, apologizing for her email the day before and stating:

. . . I start crying the instant my alarm goes off in the morning and don't stop until I finally get to sleep at night. All I do all day at work for the past week is dream up practical ways to kill myself that won't require the people I love to clean up the mess. I've thought about going to the hospital, but don't think it would do me much good since I'm allergic to most psychotropic drugs, and that's really all they could do for me anyway . . .

A few days later, she posted on her Facebook page that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning."

HR met with the employee and told her that she was being placed on paid leave for two days to enable her to meet with her doctor. HR also told her that she would not be permitted to return to work until obtained a "valid work release" from her doctor. Peer provided a letter the next day from her doctor confirming that Peer was released to return to work full time. She was told she was not allowed to return to work due to her "suicidal thoughts."

Over the next three weeks, Peer attempted to return to work unsuccessfully. She spoke to HR several times in an attempt to clarify what exactly she was required to do to be cleared to return. HR's response was a confusing one (and, dare I say, sounds like it was written by a lawyer), telling Peer only that she needed to participate in the "interactive process" but not telling her how exactly she could fulfill that obligation.

Eventually, she was fired because she had failed to "address the issue of whether [she]remained a threat of harm." She filed suit under the ADA. After discovery was complete, the employer filed a motion for summary judgment. The court denied the motion, finding that there was a triable issue as to whether the employer satisfied its duty to engage in the interactive process with the employee to determine if an appropriate reasonable accommodation could be made.

So what can we learn from this case?

First, this case serves as an excellent reminder of what the ADA requires. The key to the interactive process" is that it must be interactive. Here, the employer gave vague and ambiguous answers to the plaintiff's requests for information about how she could return to work.

Second, I can't help but wonder how much of this case could have been avoided altogether if the employee had not been Facebook friends with her supervisor. Because of this online connection, she was able to send the supervisor the message that seems to have triggered the employer's actions.

In short, put this case in the column of "cons" when it comes to supervisors and their direct reports being Facebook friends.

Peer v. F5 Networks, Inc.,
No. C11-08790-JCC (W.D. Wash. Mar. 19, 2012)

Is Your Legal Blog Compliant?

Posted by Molly DiBiancaOn April 17, 2012In: Seminars

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If you are a legal blawgger or considering the idea, you may want to consider attending an upcoming CLE hosted by the ABA titled, Is Your Legal Blog Compliant?

The 90-minute webinar will be held on April 24, 2012, beginning at 1 p.m. Eastern Time. Here's the description from the webinar registration page:

If your law firm has a blog and you have not paid attention to the matter of Hunter v. Virginia State Bar, you want to participate in this ethics CLE that addresses what amounts to a case of first impression in how blogs are interpreted under the Modern Rules of Professional Conduct.

Blogs have been around since the late 1990s, yet this recent cyberspace battle in Virginia is the first real challenge by a state bar to the often cloudy areas of interpretation. Is a blog advertising, marketing, editorial, personal, or business? Where does the First Amendment end and the Model Rules of Professional Conduct begin? Should a state bar look at a blog as marketing or something else?

This expert panel, including the plaintiff, Horace Hunter, features some of the profession's leading voices in the world of legal ethics, blogging, and first amendment issues. Get a grasp on the numerous ethics issues up for discussion when examining the use of blogs by lawyers ("blawgs") against the backdrop of state bar rules, ethics opinions, and court cases. Participation in social networking sites and its relationship to the Model Rules of Professional Conduct will also be discussed.

I am honored to be one of the presenters for this session, which certainly is of great interest to me and, I would imagine, to any of my fellow legal bloggers in the blawgosphere, as well. I hope you can join us!

Seminar for Del. Lawyers: Introduction to Federal Practice

Posted by Molly DiBiancaOn April 17, 2012In: Locally Speaking

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The Delaware Chapter of the Federal Bar Association, in conjunction with the United States District Court for the District of Delaware, has announced what sounds like an outstanding opportunity for attorneys new to Delaware practice, a two-night seminar program entitled "The Federal Trial Practice Seminar Presents: An Introduction to Federal Practice in the District of Delaware." The sessions will take place in Courtroom 2B at the J. Caleb Boggs Federal Building in Wilmington, Delaware, on Thursday, May 17 and Thursday, May 31, 2012, from 5:00 to 7:30 p.m.

Attorneys who have been practicing in the District for three years or less are eligible to participate in this seminar. One of the two seminar sessions will relate to an attorney's interaction with opposing counsel and participation in the litigation process, while the other session will focus on an attorney's interaction with the Court. Each session will include a presentation from a speaker and a panel discussion. The speakers and panel members will be current and/or former judges of the District Court.

Participation is limited to FBA members. Current FBA members may register for the seminar by contacting Steve Brauerman via e-mail by no later than May 14, 2012. Those interested in participating in the seminar who are not currently FBA members can register for membership by completing and submitting the membership form (below) or by contacting Mr. Brauerman for additional information.

Space for the seminar is limited and applicants will be accepted on a first-come, first-served basis. Applicants should be available to attend both sessions. Admission to the seminar is free and the FBA expects to apply for Continuing Legal Education credit in Delaware for both sessions.

The "Introduction to Federal Practice" seminar will be organized by the same administrative team that has organized our successful "Federal Trial Practice Seminar" (or "FTPS") in 2010 and 2011. The FTPS, an eight-week trial skills seminar program offered to attorneys in their first ten years of practice, will be next offered again in Spring 2013.

Membership-Application.pdf

Cal. Meal-Break Decision and Delaware Employers

Posted by Molly DiBiancaOn April 16, 2012In: Cases of Note, Fair Labor Standards Act (FLSA), Wages and Benefits

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The California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court on April 12, 2012. The decision contains some very good news for employers regarding obligations relating to employee meal breaks and could have some significant implications for Delaware employers covered by Delaware's meal break law, 10 Del. C. § 707.

Background

Brinker Restaurant Corporation operates 137 restaurants in California, including Chili's Bar and Grill, Maggiano's Little Italy, Romano's Macaroni Grill and others. In 2002, a former employee brought a putative class action against Brinker on behalf of nearly 6,000 hourly restaurant employees. The complaint alleged that Brinker failed to provide rest and meal periods in accordance with California legal requirements, required employees to work off-the-clock during meal periods, and unlawfully altered their time records. The plaintiffs obtained class certification in the trial court on each of these claims, but the Court of Appeal reversed, holding that class certification was improper as a matter of law. The Supreme Court, in a unanimous decision, partially agreed and partially disagreed with both the trial court and the Court of Appeal.

Meal Periods

There were two distinct questions before the Supreme Court concerning meal periods. First, does an employer have a duty to ensure that a meal period is taken and thus violates the law if the employee does not in fact take a 30-minute duty-free break? To that question, the Supreme Court answered "no" - employers are not required to ensure that an employee performs no work during the meal period. Instead, the Supreme Court held that an employer satisfies its meal period obligations by:

• Relieving the employee of all duty for the period;
• Relinquishing control over the employee's activities;
• Permitting the employee a reasonable opportunity to take an uninterrupted meal period; and
• Neither impeding nor discouraging the employee from taking the meal period.

The Court cautioned that employers unlawfully discourage employees from taking meal breaks if they provide incentives for or encourage skipping breaks, coerce employees to forego them, or otherwise make it difficult for employees to take breaks, whether through scheduling or otherwise.

It is this ruling that has the most significance for Delaware employers. Under the Delaware meal break law, an employer "must allow" a 30 minute meal break to persons working 7 ½ or more consecutive hours. Like the California law, the break must be given after the first 2 hours of work, but unlike the California law, the Delaware statute imposes an additional restriction in that the meal break must be given "before the last 2 hours."

Based on the guidance from Brinker, as long as a Delaware employer "allows" the employee to take a meal break during the specified time, the employer need not require the break. If the employee, without any employer pressure, works through his or her break and is paid for it, that would not be a violation of the law. It should also be noted that the Delaware law does not mandate that the meal break be a paid break.

The second meal period question in Brinker concerned the timing of meal periods (the so-called "floating five-hour rule"): must meal periods be scheduled so that an employee is not working more than five hours either before or after the meal period? The Court answered "no" to this question too. The employees in Brinker were sometimes required to take their meal periods an hour into their shifts, such that they were working seven hours after the meal period.

The Court held that this practice was not unlawful and that there is no limit on the number of hours that can be worked after the meal period. Instead, it concluded that:

• Employees must be provided a 1st meal period at some time before the end of the 5th hour of work; and

• Employees who work 10 or more hours must be provided a 2d meal period before the end of the 10th hour of work.

Since the Delaware law is more specific as to when the break must occur, this holding has less significance for Delaware employers. For employees working 7 ½ consecutive hours, the meal break must be allowed no later than 5 hours after the beginning of the work day. Delaware law is silent on the need for a second break if the work day extends beyond 7 ½ hours.

Rest Periods

There were two questions regarding rest period rules. First, does California law require that the rest period be taken before the meal period is taken? The Court answered "no" to this question.

Second, what does the Wage Order mean when it says that employees have a right to a 10-minute rest period for each "four hour work period or major portion thereof"? The Court rejected Brinker's argument that "major portion" means 3-1/2 hours, and held instead that it means "more than two hours." Since Delaware has no rest period law at present, that ruling has no Delaware implications.

Off-the-Clock Work

The sole question regarding the off-the-clock work claim was whether class certification should have been granted or denied. In support of class certification, the plaintiffs had offered anecdotal evidence of "a handful of individual instances" of off-the-clock work. The Court held this evidence insufficient to establish a "uniform, company-wide policy" of allowing off-the-clock work. Instead, Brinker's written policy prohibited working off the clock.

Furthermore, Brinker's time records showing an employee was clocked out created a presumption that the employee was not working. Finally, an employer is liable for off-the-clock work only when it knew or should have known that the employee was performing work off the clock. The Court held that to rebut the time records and establish employer knowledge would require individual evidence and determinations. Therefore, liability could not be established on a class-wide basis, and class certification was improper.

Bottom Line

The Brinker decision is a welcome relief to employers because the California Supreme Court declined to impose strict liability for missed or non-compliant meal periods. Since California has been a leader in providing work benefits to employees, and over time, policies that began in California have drifted to Delaware (the implied covenant of good faith and fair dealing being a prime example), the Brinker ruling should cause Delaware employers to breathe a sigh of relief.

Maryland Law Makes It Unlawful to Demand Facebook Password

Posted by Molly DiBiancaOn April 11, 2012In: Social Media in the Workplace

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The debate over the cyber-screening continues. It's big news these days that employers have been asking candidates for their Facebook log-in and passwords. The purpose? These employers claim that they want to screen potential candidates and what better way to find out the real deal with a potential new hire than see what the candidate posts on his or her Facebook page? Well, it's an idea. The trick, though, is that most candidates are smart enough to restrict access to their social-networking sites.

But people don't like the idea that employers are demanding passwords. The lawfulness of this practice is questionable. As I wrote previously, the practice of "requesting" an applicant's Facebook password may constitute a violation of the Stored Communications Act or may give rise to a state common-law claim for intentional interference with contract.

If the practice's lawfulness is uncertain, its popularity is not--the resounding response has been a hostile one. In fact, there's been such a pushback against asking for Facebook passwords that even politicians have taken notice. As I wrote last month, some state legislatures are considering laws that would prohibit this type of conduct.

Despite the efforts of two U.S. senators, a proposed bill prohibiting the practice was killed in Congress. But the Maryland General Assembly has had more luck and, yesterday, became the first state to pass legislation prohibiting employers from asking current and prospective employees for their user names and passwords for social-networking sites, such as Facebook, reports the Baltimore Sun. Governor Martin O'Malley has not yet announced his position on the bill.

This development is not entirely surprising in light of the negative publicity given to the Maryland Department of Corrections, which allegedly required applicants to turn over Facebook passwords in order to obtain employment. The ACLU rallied on behalf of the employee and the DOC officially halted the practice. Similar legislation is currently pending in California and Illinois. I imagine it won't be long before other state legislatures see the introduction of similar bills, so stay tuned.


Lawfulness of Employers' Demand for Facebook Password

Posted by Molly DiBiancaOn April 10, 2012In: Social Media in the Workplace

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Is it illegal for an employer to ask an applicant for his or her Facebook password as a condition of employment? That's a hot question these days. In my last post, I explained that two U.S. Senators recently asked this very question to the Department of Justice. Specifically, they want to know whether this very unpopular practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act. As described in my last post, the practice may constitute a violation of the SCA.

Are there other possible claims? Perhaps. One possible claim that comes to mind is tortious interference with contract. In Delaware, a claim for tortious interference with contract requires four elements. Let's run through them and see whether a claim could be made.

First, there must be a valid contract. This is questionable but it is at least arguable that Facebook has a contract with each of its users. If we agree that a contract does exist, then the Terms of Use are the terms that govern that contract. And one of the Terms of Use is that the user agrees not to share his password.

Second, the "interferer" must have knowledge of the contract. I think it would be difficult to conclude that an employer does not know that Facebook's Terms of Use provide that a user should not share his password. Thus, the employer has knowledge of the contract.

Third, the interfering party must intentionally interfere that induces or causes a breach of the contract. By asking that a candidate provide turn over his password, is an employer intentionally inducing the candidate to breach his contract with Facebook? Certainly seems that way.

Fourth, and finally, there must be damages. In other words, the candidate must be harmed by the interference. And here, my friend, is where our winning streak comes to an end. Damages? No, there are none.

I think you'd be hard pressed to show that you were damaged by sharing your Facebook password. Remember, it's not the failure to hire that counts here--it's the act that induces the breach of contract. And, in our scenario, the act that induces the breach is the act of "requesting" a candidate's Facebook password. Trying to establish damages is a tall order that, in my opinion, would be difficult, if not impossible, to satisfy.

See also, Employers Who Demand Facebook Password. Oy Vey.

2d ALJ Decision on Social-Media Policies Under the NLRA

Posted by Molly DiBiancaOn April 9, 2012In: Social Media in the Workplace

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The lawfulness of employer's social-media policies under the National Labor Relations Act (NLRA) continues to be a hot topic. Although the position of the National Labor Relations Board (NLRB) continues to be hostile towards these policies. And, without court decisions on the question, employers are not left with much other legal guidance. Until now, there has been just one decision by an Administrative Law Judge (ALJ), which found that an employee's Facebook posts were protected by the NLRA.

A decision issued by an ALJ at the end of March, though, brings the total count to two. In G4S Secure Solutions (USA) Inc., the ALJ looked at two provisions of the company's social-media policy. First was a prohibition on employees commenting on "work-related legal matters" without the permission of the company's legal department. Second was a prohibition on employees posting any pictures or videos of employees in uniform or employees on a job site. The ALJ found that the first provision violated the NLRB but upheld the second. Here's how it went.

The ALJ found that the "no-comment" provision was overly broad and could be reasonably read by employees to prohibit protected concerted activity. In short, the ALJ concluded that the policy could effectively prevent employees from "sending messages to each other about their issues at work . . . via social-networking sites."

The ALJ found that the "no-photos" provision was lawful, though, holding that the employer "clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites."

You could say that the decision is a zero-sum game, since the ALJ came out for the employer on one of the challenged provisions and against the employer on the other. But the more positive approach would be to recognize that there is a valuable victory in the ALJ's decision. The value, specifically, is the that ALJ recognized a "clearly" legitimate reason to prohibit employees from posting workplace photos online. This is quite different from the position of the NLRB's General Counsel, who, in his most recent memorandum on social-media policies, took issue with such provisions, concluding that they violated the NLRA.

[H/T Jon Hyman at Ohio Employer's Law Blog]

Employers Who Demand Facebook Passwords. Oy Vey.

Posted by Molly DiBiancaOn April 2, 2012In: Social Media in the Workplace

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Employers who require job-seekers to turn over their Facebook passwords remain a mystery to me. Really, what are they thinking? As if the potential negative publicity alone is not enough of a deterrent, you'd think that employers would be aware that there are potential legal implications, as well.

As the WSJ Law Blog reports, Sens. Richard Blumenthal, D-Conn., and Chuck Schumer, D-N.Y., took up the issue on a federal level. The Senators wrote to the EEOC and U.S. Department of Justice, asking both agencies to investigate the practice of requiring applicants to provide their social-networking-site log-in information during the hiring process.

The letter to the U.S. DOJ sought a legal opinion as to whether the practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The letter cites Pietrylo vs. Hillstone Restaurant Group, as support of the proposition that mandating Facebook log-ins violates the SCA.

Potential Legal Violation

I agree with their assertion that Peitrylo would support a claim under the SCA. In that case, the employer was found to have violated the SCA when it accessed employees' private MySpace chat room. Managers had obtained the password and log-in information of another employee. That employee, a hostess at the defendant-restaurant, testified at trial that she turned over her password to the managers only because she believed that she'd be fired if she failed to accede to the request.

If the same logic were applied to applicants who are "asked" for their passwords, the result would be the same--the employer would be in violation of the SCA, just like the employer in Pietrylo. This interpretation of the SCA is not universally accepted, though. The SCA is a challenging statute and its application is difficult to predict.

That said, though, most employers do not want to be the test case. To avoid potential risk under the SCA (and for a variety of other reasons, legal and non-legal), employers should not "request" an applicant's password for Facebook or other social-networking site.

Facebook

Facebook also is speaking out against the practice. On March 23, the uber-popular site wrote a blog post about the issue, stating: "If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends.  We have worked really hard at Facebook to give you the tools to control who sees your information."

Legislative Efforts

In Washington, there was one recent attempt to put an end to this highly unpopular practice. According to the Orlando Sentinel, Rep. Ed Perlmutter, D-Colo., introduced the proposal as part of a bill to reform the Federal Communications Commission. House Republicans blocked the proposed amendment on Tuesday, reported the Huffington Post.

Blumenthal is also drafting on a bill that would prohibit employers and prospective employers from requesting access to Facebook accounts. California State Senator Leland Yee, introduced similar legislation on Friday.