Delaware Employment Law Blog

FaceBook, MySpace, and other social network sites, have multiple uses. Of course, the traditional idea is that members gather to meet new people and share experiences.  As most recruiting and hiring managers are well aware, these websites can provide substantial insight into the personality and personal lives of job applicants. 

The value in this hiring strategy is subject to debate.  William W. Bowser and I will be debating it ourselves in greater detail tomorrow in our audioconference, Click Here for Lawsuit: Applicant Screening With Google and MySpace.  Employers must balance the need to make crucial hiring decisions with the privacy demands of Gen Y.  The arguments against using the internet's resources as the basis for employment decisions are shrinking, though.  And, if the trends continue, employers who do not utilize the web in hiring may find that they're alone in that decision. 

A survey released yesterday reports that the use of social networking has just begun to get off the ground outside America.  In North America last year, the number of users increased by 9% compared to an increase of 25% worldwide. 

Social networking has seen growth not only in the number of members, but also in the number of ways it has been put to use.  For example, the National Law Journal's article, Social Networking Sites Help Vet Jurors.  The article details how many lawyers now incorporate a Facebook-MySpace background-style check into their jury selections.  The information that is available online about potential and seated jurors can be invaluable in selecting jurors, striking potential jurors, and even in crafting opening and closing arguments that will hit home for the jury-audience.

What is remarkable about this trend is the revelations that often come with the discovery of an individual's FaceBook or MySpace page. Over and over, when social networking is used as a means to find out the "real" personality, behavior, and preferences of others, whether it be a job candidate or a potential juror, the "real" version is drastically different from the version presented to the searching party. 

Employee-privacy rights.  Compensation-based jealousy.  Bitter co-workers.  Electronic monitoring.  Gender discrimination.  Clash of the Gen X and Baby-Boomers, even?  The continuing saga involving former news anchors Larry Mendte and Alycia Lane has all of the makings of an employment-law thriller. 

Last we checked in with the two former news anchors, KYW-TV announced its decision to terminate long-time host, Larry Mendte, following a federal investigation and raid of Mendte's home and office.  On Monday, July 21, the U.S. Attorney's office filed a federal criminal information charging Mendte with a single felony count of intentionally accessing a protected computer without authorization.  See the full Information here: 

The allegations, as detailed in meticulous fashion in the Information, are based on the government's claim that Mendte hacked into Layne's personal e-mail accounts and released the info he stole to the press and others.  The hacking is said to have gone on for a period of two years but, last quarter alone, is alleged to have tapped into her accounts approximately 537 times.  Lane's lawyer is reported so say that Mendte was jealous of his younger co-host, who garnered lots of attention and who made $100,000 more than him a year. 

That alleged jealousy could land Mendte with a jail sentence of up to six months.

The Acting U.S. Attorney Laurie Magid, explained the government's interest in the case.  "We live in an age in which many people exchange and share personal, sensitive information by e-mail every day."

This is a great lesson for employers.  Privacy rights are on the minds of employees everywhere.  It's an already-serious issue when employers monitor their employees' e-mail and internet use.  But add to that a potential threat from co-workers and privacy paranoia seems like a very realistic possibility.

For earlier episodes in the soap opera:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Pardon Me? Anchorwoman’s Cursing Caught on Live TV

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

The lines of privacy in the workplace are blurred, at best. There are lots of questions about the limits placed on employers when it comes to monitoring their employees' technology use.  We do know that employers should notify employees if the company wants to reserve the right to monitor e-mails, voicemail, and internet access.  In Delaware, this notice is mandatory.  But it is not clear whether this notice can extend to web-based, personal e-mail accounts, like G-Mail or Yahoo!, when the accounts are accessed by employees during working time on a company-provided computer, accessing the internet through the company's server.  (See my previous post, Suit Raises Tough Questions About Privacy Rights of Former Employees for a case involving these facts; and if you're still not sure, just ask the Mayor of Detroit, Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”). 

And that is just the tip of the iceberg.

A recent decision from the Ninth Circuit Court of Appeals has added another layer of complexity. In Quon v. Arch Wireless Operating Company, the court found that the employer-defendant violated its employee's rights by reading his text messages without his consent.  The case was brought by a police officer, whose text messages were reviewed by his boss, who had obtained them from the internet service provider.  The reason given by the officer's supervisor was fairly innocuous--to determine whether the officer was using his city-issued pager for personal communications. 

The important take-away from this case is consent, consent, consent.  The court found that the officer had a reasonable expectation of privacy in the text messages.  Had the employee consented to the employer's search, the whole suit would have been avoided. 

And how can you get an employee to consent, you ask?  Easy.   By having all employees read and sign a comprehensive electronic-monitoring policy at the time of hiring. 

Already doing that? Great.  Now get a Gen Y to read it.  Have him or her tell you about all of the types of technology you've missed.  Does your policy even cover text messages? Now's the time to check. 

Can I read my employees' e-mails? Labor and employment attorneys get this question often. It's not as common, though, that the possible cyber-sleuth is a co-worker rather than a member of management. Recent drama at the news desk of Philadelphia's CBS 3 fits this unusual profile. 

The First of the Fallen Anchors

Long-time CBS news anchor, Larry Mendte, is under federal investigation.  He is suspected of reading the e-mails of former co-anchor, Alycia Lane.  After Lane was involved in several scandals of her own, her employment contract was terminated after she allegedly assaulted a plain-clothes police officer in New York City, and using a homophobic slur. See my earlier post, Bad Boys, Bad Boys, Whatcha’ Gonna Do When They Work for You?, for more details on the Alycia Lane scandal.

The Cyber-Scandal Spreads

And now attention has been turned to Lane's former colleague, Larry Mendte.  Late last week, Mendte and CBS News learned that he was being being investigated for snooping through Lane's e-mail.  Reading others' e-mails without permission or privilege is a federal crime.  (Last week we discussed Delaware's state law, which requires employers to provide written notice of their intent to monitor employees' e-mails.  See Employers' Policies on Technology in the Workplace).

Mendte's home computer was seized by the FBI as part of the probate.  CBS 3 issued the following statement yesterday:

Late last week, CBS 3 became aware of an investigation by the U.S. Attorney's Office regarding anchor Larry Mendte. CBS 3 is cooperating fully with that office in this matter. Mr. Mendte will not be on CBS 3's broadcasts pending further investigation.

While the investigation is ongoing, Mendte has been dethroned. It doesn't seem so positive.  Mendte's lawyer said yesterday, "We hope to work together with CBS 3 to reach a mutually agreeable resolution as to his status." 

That does not sound good.

Get Consent to Monitor Employees' E-Mails or Risk a Mendte-Style Result

Let this be a word of warning to any employer who may be inclined to search their employees' e-mails without complying with state and federal notice requirements.  Cyber-sleuthing has serious consequences.

And if you learn that another employee has been snooping through a co-workers electronic data, including e-mails, act quickly and seriously.  Take a page from CBS 3 and consider suspending the employee until your investigation is complete.

Workplace privacy concerns aren't limited to technology.  There's been lots of buzz about GPS tracking of employees, use of biometric data in time and attendance programs, and, of course, electronic monitoring of employees' e-mails, and Internet usage. As the case below demonstrates, privacy concerns don't require hi-tech equipment or software.  Just a whole lot of nosey.

A Sordid Affair

The story centers around a Wal-Mart supervisor who had engaged in an improper affair with a co-worker.  Not only was the affair illicit but it also violated Wal-Mart's anti-fraternization policy.  The supervisor was terminated when the company discovered the relationship.  Now, the termination alone might raise a few eyebrows.  But, policy is policy, and the supervisor's relationship was in violation of policy (as well as really bad managerial skills), the company can and should take disciplinary action. 

I Spy (well, Wal-Mart spied, actually)

Where the story becomes truly noteworthy, though, is exactly how Wal-Mart came to first learn about the "violation."  It hired a private investigator to track the couple.  The investigator did just that; following them all the way to a rendezvous hideaway in Central America.

And Then Came the Lawsuit

The romantic and unemployed supervisor filed suit in Arkansas state court alleging violation of contract and wrongful termination based on public policy.  The contract claim was swiftly rejected.  The termination claim, based on the allegation that he was fired in retaliation for reporting Wal-Mart's failure to comply with it's own internal policies regarding factory certification, was equally unpersuasive.  Summary judgment was granted in favor of Wal-Mart, which was subsequently affirmed by the Arkansas Court of Appeals. 

The legal claims asserted in the lawsuit were pretty blasé when compared with the sordid facts that got him terminated in the first place.  Based on the appellate court's decision, the claims seem doomed from the start.  I have to wonder whether the plaintiff wouldn't have been better off asserting a state-law privacy claim. 

The case is Lynn v. Wal-Mart Stores, Inc., No. 07-384 (Ark. App. Ct. Mar. 19, 2008), and a hat tip to the Workplace Profs Blog, who spotted this one back in April.

Privacy rights of employees are a common topic.  But privacy rights of executives is a less frequent employment-law issue. The recent demand for presumptive Republic party candidate John McCain's medical records, as well as the small flurry of excitement about Apple CEO Steve Jobs' cancer diagnosis has put the topic in the headlines. 

There has been much talk in the news about Senator McCain's health.    The talk centers around a melanoma McCain had removed in 2000.  So much attention has been devoted to the topic that the Senator has agreed to release his medical records.

The push for disclosure seems to be based on the argument that the electorate has a right to know the condition of a candidate's health.  On one hand, the demand seems like a crude request to inspect the goods prior to purchase.  But, on the other hand, maybe inspection of health care records is the best we can get short of a warranty.

Employers are permitted to require a fitness-for-duty certification before allowing an employee to return to work following leave for medical reasons.  I can't say I'm convinced but I can see the parallel.

The public demand for McCain's health records raises interesting questions for employers.  Should CEOs and other top executives at large companies disclose to their organization that they have a serious illness?    

A Human Resources Executive Online discussed this question in the context of Apple CEO Steve Jobs' recently disclosed condition of pancreatic cancer.   Jobs told the board of directors and top leadership soon after being diagnosed in 2004.  After consulting with attorneys, the company decided against further release of the diagnosis. 

Jobs tried a variety of dietary and alternative medicine treatment options for nine months before turning to surgery.  It was only after he had undergone surgery successfully that he told employees about his illness.

CNN Money.com criticized Jobs' decision not to disclose his condition, claiming that it put his company and his investors at risk.  And the story made the cover of the April 2008 edition of Fortune Magazine (pictured above).  But during the mid-1990's, Intel CEO Andy Grove did not disclose his cancer diagnosis for a year without controversy. 

It raises an interesting question about the privacy rights of senior executives.  It also makes me wonder whether the news about Steve Jobs will trigger companies to include medical-condition disclosure provisions in executive employment agreements.

Genetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues--that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President's desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

“It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,”

said Ted Kennedy (D-Mass.).

The debate is not a new one--the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect "genetic information." A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to "intentionally collect" genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of "genetic descrimination," although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC's complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you're interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI's site inlcudes dozens of helpful explanations about just about everything genetic--including the legal, social, and ethical implications of genetic testing.

To review GINA's passage through the House and Senate, visit thomas.loc.gov.

From a women's health perspective, U.S. News & World Report's Deborah Kotz's article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.

Employee-privacy advocates are not in favor of biometrics in the workplace. But many employers do not share the concern. Biometrics are being used in workplaces across the country for purposes ranging from security to timekeeping and attendance.

What are Biometrics?

You may not know it, but you have probably seen biometrics in use numerous times. Catch any modern spy movie and there is sure to be a scene where the main character accesses the inevitable Restricted Area using the fingerprint of a dead man via a "borrowed" digit. Or maybe the triple-secret bank vault can be opened only via a a retina scan of the bank's Very Important President. You get the idea.

Biometrics run the gamut from simple to NASA-level technology. Biometrics on the most basic level could include simple ID badges with the employee's mug-shot style photograph. Signatures are even included in biometrics that are used as a security measure. Today, employers utilize password-management systems that require employees to regularly change their personal passwords in order to access the company's network.

The term "biometrics" refers to a method of authenticating the identity of an individual using enduring physical or behavioural characteristics. Any system that utilizes biometrics relies on the use of biometric identifiers. Also known as "BIs," biometric identifiers are select pieces of information that relay an encrypted picture of some unique feature of the person's biological makeup. Common BIs include fingerprints, retinal scans and voice scans.

Other identifiers that have been suggested and used include: hands, feet, faces, ears, teeth, veins, voices, signatures, typing styles (keystroke), gaits and odors.

How Effective Are Biometrics?

In the employment context, biometrics are used as an authentication tool. The BI is compared to the authenticated BI, which is stored in a database. Used this way, biometrics offer a nearly infallible security system. Unlike traditional security measures, like passwords or security badges, biometrics cannot be shared, lost, forgotten, stolen, or recreated.

But there are security risks for the user. For example, the authenticating, or original, data must be kept as secure as possible, which usually means not being sent wirelessly. And, if it is sent across a network, encryption should be at a maximum. As a compromise, systems often provide for a larger margin of error. And, unlike passwords and security questions, biometrics cannot be changed or revoked when the employment relationship ends.

What Else Could Go Wrong?

Well, lots, actually. Unauthorized access to highly sensitive personal information raises very legitimate concerns about identity theft--a problem that already has employers on high alert for potential liability. And, without any regulatory system in place, what about the potential privacy implications? Surely, employees will want to know what other information can be obtained should the wrong person have access to the database.