Md. Agency Suspends Facebook-Password Policy

Posted by Molly DiBiancaOn February 28, 2011In: Social Media in the Workplace

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The Maryland Department of Corrections' Facebook-password policy for job applicants has been suspended following the negative publicity resulting from an ACLU blog post in opposition to the practice.  Maryland Public Safety Secretary Gary Maynard notified the ACLU that he had suspended the social-media password requirement for 45 days pending a review of the policy. 

I can't say that I'm surprised.  Requesting an employee's or job applicant's social-networking password is a bad idea. Period. Just ask city officials in Bozeman, Montana.

March 11: Social-Media Policy Workshop

Posted by Molly DiBiancaOn February 21, 2011In: Seminars

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UPDATE: Both sessions are fully reserved. Thank you!

Bill Bowser and Molly DiBianca will be teaching a 3-hour workshop for private-sector employers on how to draft an effective social-media policy.  The workshop is being held at Young Conaway's Wilmington, Delaware offices.  The fee is only $25 per attendee but space is very limited, so don't wait to register. 

A more detailed description can be found in the flyer, linked here.   

Registration Form (PDF)

Employee Must Give Employer His Facebook Password, Says ACLU

Posted by Molly DiBiancaOn February 21, 2011In: Social Media in the Workplace

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Facebook gives employers lots of reasons to worry. There are employees who leak confidential company information, talk badly about supervisors, and complain about customers. There's also the NLRB's recently settled complaint, brought against a Connecticut employer, that alleged that the employer's social-media policy was overly broad. And, for several years, employers have struggled with the question of whether they can or should "research" candidates online before making a hiring decision. We've posted about this question many times but the debate continues.

The most recent headline is sure to jettison the debate yet again. The American Civil Liberties Union has taken up the cause of Maryland corrections officer Robert Collins.  According the ACLU's blog, Collins was required to provide his Facebook login and password to the Maryland Division of Corrections (DOC) during a recertification interview.  Once he provided it, the interviewer logged on to his account and reviewed the content.  The ACLU's letter to Maryland's Public Safety Secretary and a video of Mr. Collins telling his story can be found on the ACLU Blog.

Once this story gets some publicity, it's not likely to be defended by many. The only other employer that I've heard of who required potential employees to turn over their log-in information was the town of Bozeman, Montana. When news of the town's practice hit the Internet, a firestorm of negative publicity resulted. Shortly thereafter, the practice was abandoned.

I learned of a similar practice from students at the Wharton School of the University of Pennsylvania when I gave a lecture there last spring.  The students told me that it had become common practice in the financial sector to require candidates to log into their personal Facebook accounts to let the interviewer review the information in the candidate's presence.  As you may have guessed, the students were not happy about this interviewing "technique."

I expect that the Maryland DOC will see quite a bit of negative publicity, once the ACLU's story makes its way around the social-networking sites. And for good reason--it's a bad policy.

Although I try not to be too judgmental when it comes to the various choices made by employers, I can't defend this policy. Here's why. This policy requires an individual to relinquish his control of his Facebook page. The employer could then turn over this control to any person or persons in the organization. There would be nothing to prevent an employee in the Maryland DOC from changing the password and actually excluding the individual from his or her Facebook page. 

When I've discussed the Bozeman situation with employers and human-resource professionals in the past, I usually suggest that, perhaps Bozeman was using this practice as a screening tool--anyone who actually relinquished their confidential password and log-in information without any kind of assurances about the controls in place to keep that information secure would not be hired.  But, alas, it turned out Bozeman just had a bad policy.

I suggest that the same is true for the Maryland DOC.  For an agency charged with security responsibilities, it seems irrational to ask current employees or applicants to relinquish control over confidential information.  But, hey, that's just my opinion.

Health-Care Employers Who Don't Hire Smokers

Posted by Molly DiBiancaOn February 16, 2011In: Off-Duty Conduct

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Not all workplace discrimination is unlawful.  For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination.  That is not unlawful discrimination.  One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.  cigarette pack broken cigarette

We've written about the efforts of many employers to reduce health-care costs and increase productivity by not hiring applicants who smoke or use tobacco. (See, Health vs. Privacy: Employers Continue to Juggle Both; How Far Should Employers Go When It Comes to Employees' Health?; Not Everyone Is Fired Up About Smoking Ban; Employer Quits Its Smoking-Penalty Policy).  Last week, the N.Y. Times ran an article about the increase in this type of "discrimination" in the health-care field.  Of all employers, it makes the most sense that an employer in health-care would not hire employees who elect an unhealthy lifestyle. 

I have mixed feelings about these bans for a number of reasons.  For example, lots of non-smokers live very unhealthy lifestyles by failing to exercise or not working to reduce high cholesterol.  But smoking is, by far, a trendier target than high cholesterol.  On the other hand, smoking is also more deadly.  So if you are an employer who wants to promote health, it would make sense to target the one activity that has the farthest reaching negative impact.  (Of course, there was a study that showed that having an inconsiderate and uncommunicative boss was more likely to suffer a heart attack than an employee who smokes or who fails to exercise.  See "My Boss Is Killing Me").

At the end of the day, though, I tend to come out on the side of a middle ground by suggesting that employers simply prohibit smoke breaks.  If an employee goes through the workday with only one opportunity to spoke (i.e., at the meal break), you've gone a long way to reduce tobacco use.  Additionally, this eases the discomfort from what is perceived as an employer's intrusion into its employees' personal lives. 

It's an argument that has good points on both sides and I find it interesting that the debate continues to go on, several years now since employers first reported refusing to hire employees who smoke.

See also:

Will President-Elect Obama Be Charged a Smoker's Premium?

Terminating Employees for Off-Duty Conduct

State Employees Will Go From Fat to Fit--Or Else

The 5 Medical Conditions That Employers Don’t Want to See in a Candidate;

You Are Hereby Classified: WHD Proposes New Notice Rule

Posted by Molly DiBiancaOn February 15, 2011In: Fair Labor Standards Act (FLSA)

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Exempt or nonexempt? That can be a tough question.  With wage-and-hour litigation on the rise, wise employers are aware that the classification question is an important one, as well.  The U.S. Department of Labor's Wage and Hour Division (WHD), has announced a proposed rule that, if adopted, would have significant impact on the process employed by companies in determining whether or not an employee should be classified as exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. classified

The proposed rule would require employers to conduct a written classification analysis for each exempt employee.  This analysis would have to be provided to the employee and a copy retained on file to be provided to the WHD in the event of an investigation.  The same records would need to prepared and retained for any individual the employee classifies as an independent contractor--as opposed to an employee.

This proposed revision to the recordkeeping requirements of the FLSA is consistent with the DOL's initiative to target employers who misclassify workers. It also seems to be indicative of a continued interest in initiatives that involve giving notice to employees of their various workplace rights.  See You've Got Rights: NLRB's Proposed Notice to Employees.

IRS Announces Breast Pumps Now Deductible

Posted by Adria B. MartinelliOn February 11, 2011In: Fair Labor Standards Act (FLSA), Pregnancy (Title VII)

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Reversing a long-held position, the IRS announced yesterday that breast pumps and other lactation supplies are now deductible.  Employees can now use pre-tax funds from their flexible spending accounts and health savings accounts for these supplies. The ruling is effective immediately and can be used on 2010 returns.

In conjunction with the FLSA amendment, which was went into effect in March of 2010, this ruling signals that policymakers are finally coming to appreciate the health benefits of breastmilk for newborns, that medical professionals have long touted.

Breast pumps and related supplies can run as high as $1,000 in the baby’s first year. The fact that employers are now required to accommodate lactation breaks of reasonable length, combined with the change in IRS policy is likely to have a measurable effect on the number of mothers returning to work who opt for the benefits of breastmilk.

See also:

Court Ruling on Breastfeeding at Work Brings a Downpour of Criticism

New Guidance on Law Requiring Breaks for Nursing Mothers

Keep Your Shirt On!

Posted by Lauren Moak RussellOn February 11, 2011In: Off-Duty Conduct

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mens outfit

By now, we should all be well aware that our out-of-office conduct can result in discipline  or termination in the workplace. Never has this been more true than today, when people document their entire lives online, leaving cyber-footprints everywhere they go. Sadly, this was a lesson learned too late by Congressman Christopher Lee.

Lee was a two-term Congressman from New York, with a wife and young child. Apparently Mr. Lee got a little frisky in Washington, and emailed a picture of himself, shirtless, to a woman on Craigslist. The woman then shared the photo with, a celebrity news site. Mr. Lee has since resigned his seat by letter to House Speaker John Boehner.

This news story is just another reminder, if anyone needed it, that internet conduct is not private. Even if you restrict access on blogs, Facebook, or similar sites to "friends," the information you share is not private. This is a message that has clearly not penetrated our corporate culture. So, the onus remains on employers to remind their employees that out-of-office conduct can result in employee discipline, and that their conduct online is highly visible and relevant to workplace performance!

Settlement of Facebook Charge Leaves Lots of Social-Media Policy Questions

Posted by Lauren Moak RussellOn February 9, 2011In: Legislative Update, Social Media in the Workplace

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FB Logo

The legal effectiveness of social-media policies in the workplace came under fire when the National Labor Relations Board (NLRB) filed an unfair labor practices complaint against American Medical Response.  The complaint was filed after the employer terminated a unionized employee for complaining about her boss via Facebook. The NLRB's complaint alleged that the employee was engaged in activity protected by the NLRA because she was discussing the terms and conditions of her employment with co-workers.

The NLRB just announced  that it settled the matter after the employer agreed, among other things, to revise its social media policy to be less broad. The employer had previously prohibited its employees from any on-line criticism of the company. As we've previously noted, the NLRB's position on social media does not mean that an employer is prohibited from restricting social media use by employees. It does, however, mean that employers need to tailor their social media policies to avoid overly broad restrictions.  We'll keep an eye out for release of the revised (and NLRB-approved) social-media policy. 

See also, coverage of the settlement by the N.Y. Times.

Putting the Computer Fraud and Abuse Act to Work for Employers

Posted by Molly DiBiancaOn February 4, 2011In: Privacy In the Workplace

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Consider this scenario:  Your Human Resources Manager decides to leave your employ but, before she announces her decision, she copies all of the company’s policies, forms, and even confidential salary data.  She emails herself copies of these files and saves them on a flash drive, which she takes with her when she leaves on the last day. You discover the theft after she’s left and are horrified.  What recourse do you have?  modern computer, monitor, cpu

Part of the answer will depend on your jurisdiction.  In certain jurisdictions, employers may be able to use a law called the Computer Fraud and Abuse Act (CFAA) to fight back against disloyal employees.  The CFAA prohibits “intentionally access[ing] a computer without authorization or exceed[ing] authorized access” in certain circumstances.  A recent decision by the Eleventh Circuit Court of Appeals is an important one for employers not only in the states within the 11th Circuit but also for employers in states, like Delaware, where their circuit court of appeals (in our case, the Third Circuit), has not yet ruled on the application of the CFAA to the employment-law context.

Roberto Rodriguez worked for the Social Security Administration (SSA) and had access to the SSA’s databases as part of his job duties. The SSA’s policy prohibits its employees from using the databases for non-business reason. Rodriguez violated this policy when he looked up personal information about various women that he knew and had met. He looked up his ex-wife’s earnings history and the address of a woman he met at a church study group to send her flowers on Valentine’s Day.  Rodriguez was found guilty on 17 counts of violating the CFAA.

On appeal, Rodriguez argued that he did not violate the CFAA because, at all times, he had been authorized to access the databases.  Thus, he argued, he could not be guilty of “intentionally accessing a computer without authorization.”  Although this argument may have worked, he could not avoid the second theory available under the CFAA—that he had “exceeded authorized access.”  The CFAA defines this as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.”

The 11th Circuit upheld the conviction under the second prong, finding that Rodriguez exceeded his authorized access and violated the CFAA when he obtained personal information for a nonbusiness reason. In other words, the court concluded that, although Rodriguez had authority to access the database at the time he looked up the women’s personal information, he exceeded that authorization when he violated his employer’s policy and accessed the database for reasons beyond the scope of the authority he’d been given.

This is an important decision for employers because it approves an interpretation of the CFAA whereby employees who misuse their access to their employer’s computer network constitutes a violation of the law.

United States v. Rodriguez, No. 08-16696 (11th Cir. Dec. 27, 2010)

See also Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the CFAA to Use, TV Style

They Say It’s Your Birthday

Posted by Adria B. MartinelliOn February 2, 2011In: Employee Engagement

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Today is my daughter’s 7th Birthday. She got out of bed early and excited. She gave extra special attention to the clothes she picked out, and triple-checked her pony-tail was just so. Walking into school with her birthday cupcakes, she bounced with each step. As we approached her first-grade classroom, her teacher exclaimed “the birthday girl is here!” and her classmates shouted out in unison “Happy Birthday Gianna!” and proceeded to embrace her in a group hug. She was grinning from ear to ear the entire time, because she felt special. gift wrapped with pink paper and bow

Watching the morning unfold for my daughter got me thinking about birthdays and feeling special. There are not many opportunities in our adult lives where we feel like a 7-year old on her birthday. A lot of press has been given lately to what is viewed as “excess” in some public employment positions. Indeed, in these tough times, the public does not- and probably shouldn’t - have much tolerance for such perks. One public agency in New Jersey was recently assailed for, among other things, giving employees their birthdays off (or a bonus if they worked on their birthday). The horror! Birthdays off??

WAY back in 2007, in pre-recession time, employers devoted considerable time and energy to how to recruit and retain talented employees. In today’s economy, where most employees are just grateful to have a job, this topic is much more rarely discussed. But it costs money to hire and train new employees in any economy, and when the economy starts to turn, employees who feel under-appreciated will seize the first opportunity to take their talents to another employer who, for whatever reason, holds the promise of a happier place.

Layoffs and cut-backs have resulted in rock-bottom employee morale at many workplaces. There are a number of things that employers can do to boost morale, of varying costs. Maybe, just maybe, making employees feel special one day a year by giving them their birthday off is not such a bad idea after all!

Union Statistics for 2010

Posted by Molly DiBiancaOn February 1, 2011In: Union and Labor Issues

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The U.S. Bureau of Labor Statistics has released its 2010 report on labor unions.  The most important statistic for many is overall union membership, i.e., the percent of wage and salary workers who were members of a union.  Union membership in 2010 was 11.9%, down from 12.3% in 2009.   Other highlights from the report:clip_image002

· Public v. Private Sector:  Union membership rate for public sector workers (36.2%) was substantially higher than the rate for private sector workers (6.9%).

· Industry:  Workers in education, training, and library occupations had the highest unionization rate at 37.1%.

· Race:  Black workers were more likely to be union members than were white, Asian, or Hispanic workers.

· States:  New York had the highest union membership rate (24.2%) and North Carolina had the lowest rate (3.2%).

These statistics follow an interesting article in the N.Y. Times in early January, which claims that the public is becoming less and less sympathetic towards public-sector unions.  The article features the story of a Flemington, N.J. teacher who appeared on YouTube in a debate with N.J. Governor Chris Christie and who became the target of public outrage as a result.  The story certainly lines up with the statistics from the federal government.  The public as a whole has a low union-membership rate (less than 12% of all workers are union members), but more than one-third of public workers are card-carriers and membership is particularly high in public education.  This is apparently a formula for the public to push back against unions that citizens feel are adding to the public’s heavy burden when it comes to taxes and budget cuts.

You've Got Rights: NLRB's Proposed Notice to Employees

Posted by Lauren Moak RussellOn January 31, 2011In: Union and Labor Issues

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Employers should be aware that the National Labor Relations Board (NLRB) has proposed a new regulation that would require employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The NLRB has provided a fact sheet that answers some basic questions about the proposed regulation. Under the Notice of Proposed Rulemaking, which was issued on December 22, 2010, employers would be required to post a notice that included information on employees’ rights under the NLRA, and conduct by employers and unions that is illegal under the NLRA.

Employers would be required to post the notice everywhere that they normally post such information, such as EEOC and OSHA notices of employee rights. If an employer normally notifies is employees via a company intranet, Internet, or email, it would be required to use the same methods to disseminate the NLRB notice.

The notice would also have to be posted in the languages an employer’s employees speak. There is no guidance on how this requirement will be applied, but if a substantial number of an employer’s employees speak a particular language, it would likely be required to post in that language.

If an employer fails to post the notice, it may be subject to several penalties, including a cease and desist notice, a tolling of the statute of limitations for any unfair labor practice charges, or a presumption that the employer’s failure to post is evidence of anti-union animus.

The posting proposed by the NLRB is modeled on a notice already required by the Department of Labor for all federal contractors.

So, what can employers do to impact the contents of the proposed regulation? Well, the comment period on the proposed rule does not expire until February 20, 2011. Until that time, anyone is free to submit comments to the NLRB in support of, or in opposition to, the new regulation. In addition, employers can contact their congresspersons. Particular attention should be paid to the members of the House Appropriations Committee and the Subcommittee on Labor, which oversees funding to the NLRB.

Delaware Legislature Buzzing Over Medical Marijuana

Posted by William W. BowserOn January 26, 2011In: Disabilities (ADA), Legislative Update, Locally Speaking

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A bill to permit the use of marijuana for medical purposes was introduced in the Delaware General Assembly yesterday. Senate Bill 17, if enacted, would create an exception to Delaware’s criminal laws by permitting the doctor-recommended medical use of marijuana by patients with serious medical conditions. A patient would be protected from arrest if his or her physician certifies, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana. 3d doctor running

Patients would be allowed to possess up to 6 ounces for their medical use. The legislation allows them to designate a caregiver who would also receive an ID card. Each caregiver may assist no more than five qualifying patients. The legislation would also allow for the state-regulated, non-profit distribution of medical marijuana. The Department of Health and Social Services would issue registration certificates to qualified applicants.

SB 17 also contains restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

While the bill states that employers are not required to allow patients to be impaired at work or to allow the possession of marijuana at a workplace, it does not address how employers are to deal with employees who test positive for marijuana or ask for accommodations under the ADA.

Other States' Laws

Delaware joins a growing list of States proposing or enacting medical marijuana laws. Last year alone, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana

Some states have already enacted legislation. Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so).

Other Legal Issues, From ADA Accommodation to Safety

Legal questions are sure to arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don't need to make such accommodations. Because the ADA doesn't require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.

Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.

See also Wilmington News Journal's coverage of Montel Williams' visit to Dover, Delaware, in support of SB 17

A Unanimous Supreme Court - What a Concept

Posted by Sheldon N. SandlerOn January 25, 2011In: Retaliation, U.S. Supreme Court Decisions

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In an all too rare unanimous ruling (save for Justice Kagan, who recused herself), the U.S. Supreme Court has held that the anti-retaliation provision of Title VII extends to employees who are in the “zone of interest” with an employee who has filed a charge of discrimination. The facts and findings follow.

A female employee filed a charge of sex discrimination against her employer. A few weeks later, the employer fired the complainant's fiancee, who had also been a company employee. The fiance then filed a retaliation charge with the EEOC and a subsequent lawsuit. 

Justice Scalia, writing for the Court, held that a reprisal against a third party such as the fiancee was covered retaliation under Title VII.  The Supreme Court further held that the fiancee was an “aggrieved person,” who had standing to sue under Title VII.  Justice Scalia pointed out that the text of the anti-retaliation provision is broader than the substantive provision and that any person who comes within the “zone of interest” that the statute seeks to protect can file suit. The Court leaves it to future cases to determine how far this “zone of interest” extends. The case is Thompson v. North American Stainless, No. 09-291.

Lawyers Can Demonstrate the Need for Social-Media Policies In More Ways than One

Posted by Lauren Moak RussellOn January 23, 2011In: Social Media in the Workplace

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Many employment lawyers advise their clients to adopt an effective social-media policy. But there are other lawyers who have demonstrated the need for such policies not by advising clients but by example. When lawyers cause problems for their employers by the lawyer’s use of social media, their employers get a far clearer understanding of the need for social-media policies. A recent example comes from the international law firm, Akin Gump, and one of its partners, Paul Mirengoff.

In his off-duty capacity, Mr. Mirengoff posted on a conservative blog called Power Line. The post at issue discussed the good, the bad, and the ugly of President Obama’s speech following the recent Arizona shootings. Among the “bad” that Mirengoff discussed was a Native American prayer recited before President Obama gave his remarks. Mirengoff complained that the prayer included many references to the Creator, but none to God. He then opined that a Christian prayer should have been read, because many of the victims were devout Christians.

Mr. Mirengoff’s post was not well received by his employer, which has a well-developed practice in the area of Native American law. The firm’s managing partner issued a statement distancing the firm from the post, and noting that the firm has no affiliation with the blog itself. The firm is also reported to have requested that the post be removed, which it was. (The post can be accessed on the ABA Journal’s website here). That statement was included within a larger statement by James Maggesto, another partner at Akin Gump, who is of Native American descent and who practices in the firm’s American Indian Law and Policy section.

The ABA Journal reports that the firm is currently reviewing its social-media policy.

This case is a helpful reminder that every business should have a strong social media policy in place. Even the best-informed employees can make mistakes. And those mistakes can do serious harm to a business’s bottom line.

Update {Jan. 31, 2011}: Mr. Mirengoff is reported to have given up his blogging efforts, at least for now.