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.
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.
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!
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.
Delaware Employment Law Blog ("Blog") is intended for informational purposes only and does not contain any legal advice. The authors of the Blog are attorneys in the law firm of Young Conaway Stargatt & Taylor, LLP, and the views expressed by one or more of the authors, including comments posted by registered visitors, solely reflect the opinions of those authors and not those of the firm or its clients. The publication of and posting to the Blog does not create an attorney-client relationship and the authors assume no liability for the dissemination of attorney-client or confidential information posted on the Blog by registered or unauthorized visitors. The Blog is not intended to be advertising of legal services or any other service. The authors assume no responsibility for inaccuracies.
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