Monday, April 30, 2012

SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests

I try to get out . . . but just keep getting sucked back in. The firestorm over employers requesting employees' (or job applicants') Facebook passwords just won't die. Now, Congressman Engel (D-NY) has introduced the Social Networking Online Protection Act ("SNOPA") (HT Eric Meyer). Let's break this thing down:

Who's Protected? - Employees and applicants.


What's Protected? - "[U]ser name, password, or any other means for accessing a private email account . . . or [a] personal account . . . on any social networking website."


What's Prohibited? - The employer can't "discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against" an employee/applicant who refuses to hand over the protected information. There's also an anti-retaliation provision that prohibits the same actions against an individual who files a complaint, institutes a proceeding, or testifies (or is about to testify) in any such proceeding.

Or Else What? - Up to $10,000 in civil penalties, and/or injunctive relief (filed by Secretary of Labor in U.S. District Court).

Anything Else? - Yeah, there are also similar provisions for colleges, universities, and elementary and secondary schools.

You can read the legislation, embedded below (or click here to view online):




Image: Facebook logo used in commentary on Facebook.

Friday, April 27, 2012

Employers, Are You Ready for the New NLRB Rules on 4/30/2012?

Remember the NLRB poster requirement? It was scheduled to take effect (after numerous delays) on April 30, 2012. In case you missed it, the NLRB put the rule on hold pending the outcome of some court cases. So, take those posters and throw them in the garbage post them at your own discretion.

But, that's not the only rule that was scheduled to go into effect on Monday. The NLRB also plans to implement new election rules (often derisively called "quickie" or "ambush" elections by those opposed to the rule). If you're not doing anything this weekend, here's a great reading list to make sure you're ready for Monday!
Have a great weekend!

Image: NLRB logo used in commentary on the NLRB. Not official use.

University Employee's Right to Bring a Gun - COTW #89

The employee in Mitchell v. University of Kentucky (opinion here), kept his gun in his car . . . even when he went to work at UK. Unfortunately for him, the school has a policy prohibiting possession of a deadly weapon on campus (or while conducting University business). The university finds out, and the employee gets fired.

Not so fast! The employee strikes back with a wrongful termination claim. Generally, to bring a wrongful termination claim, the employee must show that he or she was terminated in violation of an established public policy (like a statute or constitutional provision).

By Kentucky statute:
No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle.
KRS § 527.020(4). He did have a license. Sounds promising... just one problem... the statute requires "compliance with" § 237.115. Hmmm, ok, and what does that say? It generally protects:
[T]he right of a college [or] university . . . to control the possession of deadly weapons on any property owned or controlled by them.
Suddenly the tables have turned, and the university looks like they're sitting pretty, right? Just one more twist . . . the university has the right to control the possession of deadly weapons, "[e]xcept as provided in KRS 527.020."

So, if you've been paying close attention:
  • The employee has the right to keep his gun in his car, so long as he complies with the statute that protects the university's right to control possession of deadly weapons on campus.
  • But, the statute that protects a university's right to control deadly weapons contains an express exception for the statute that protects the employee's right to keep his gun in his car.
Sounds like a big circle to me! The Court ultimately resolves the issue (can I call it a conundrum?) in favor of the employee, who is allowed to proceed with his wrongful termination claim. Although the case depends on Kentucky law, it's an interesting fact pattern, an unusual wrongful termination claim, and a good example of complex statutory interpretation.

HT: Euguene Volokh and his conspiracy.

Thursday, April 26, 2012

EEOC Issues Guidance on Using Arrest and Conviction Records

It has been a busy week for the EEOC! After holding that transgender discrimination is sex discrimination on Tuesday, they issued guidance regarding employer use of arrest and conviction records yesterday. The EEOC issued this press release, announcing the updated Enforcement Guidance on Employer Use of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The EEOC also issued this Question and Answer document regarding the updated guidance.

Image: EEOC logo used in commentary on EEOC. Not official use.

Wednesday, April 25, 2012

EEOC: Transgender Discrimination is Sex Discrimination (Full Opinion Here)

Title VII prohibits employment discrimination "based on . . . sex." It does not expressly protect transgender individuals. It does not protect against discrimination based on "gender identity." But, does the plain meaning of the text in Title VII afford protection to transgender individuals anyway?

Yesterday, the EEOC issued an opinion with a straightforward holding:
Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex," and such discrimination therefore violates Title VII.
That's a pretty clear holding. This is hardly groundbreaking legal analysis though. The District of D.C. reached a similar conclusion back in 2008, the Eleventh Circuit held that transgender discrimination is sex discrimination under the Constitution's Equal Protection Clause, and other courts have applied similar analysis. Also, many states and municipalities expressly prohibit discrimination on the basis of "gender identity." Bottom line: If you're an employer, discrimination against transgender individuals is playing with fire.

Why does the EEOC opinion matter? Well, it's a nationwide opinion in that it should serve as precedent for all of the EEOC regional offices to follow. Of course, the courts in any given jurisdiction are not obligated to follow the opinion, but they may afford the EEOC's view some deference.

The full opinion is embedded below (or view online here):EEOC Ruling

HT: Ross Runkel via Twitter.

Image: EEOC logo used in commentary on EEOC. Not official use.

Tuesday, April 24, 2012

Dauphin County Added to Pennsylvania Courthouses Photo Album

I attended a CLE in Harrisburg last week, which means . . . the Dauphin County Court of Common Pleas is now in the Pennsylvania Courthouses Photo Album! You can also view the album on the Lawffice Space Facebook page, or my personal Google+ page.


Parking in Harrisburg was tough, so I was forced to drive in circles in a parking garage all the way up to the roof. But . . . bonus! . . . clear shot of the PA Capitol building, home of the Pennsylvania Supreme Court!

Sunday, April 22, 2012

Fired For WHAT!? - 4/22/2012

Welcome to a new feature on Lawffice Space: Fired for WHAT!? I think it's self-explanatory... a collection of the best firing stories from around the web.
  • Teacher fired for appearing in porn. Highlights: The investigation began when the intermediate high school students told administrators they had seen their science teacher in porn movies (while just scouring the Internet for study aids, no doubt); the admins couldn't find the video because the schools computers were filtered; but never fear, some teachers found it using their mobile phones (just trying to help out with the investigation, I'm sure). HT Casey Sipe via Twitter DM - FYI, he has an employment law blog worth checking out: The Employer's Lawyer.
  • Secret Service scandal. You have probably already heard about this one, but have you seen the call girl in question? The scandal reportedly broke after an agent tried to pay her $28 for $800 worth of, ahem, "services." Here's some free advice: When travelling on business, avoid hookers. You're welcome.
If you have a great firing story, let me know.

Thursday, April 19, 2012

The Bachelor Discrimination Lawsuit (Full Complaint Here) - COTW #88

ABC... do you accept this rose? And by "rose" I mean discrimination lawsuit. Yup, the employment law case of the week is a class action lawsuit against ABC and others associated with production of The Bachelor and The Bachelorette. The basis for the lawsuit is pretty straightforward:
Never, over 10 years and a combined total of 23 seasons of The Bachelor and The Bachelorette, has either show ever featured a single person of color—whether African American, Latino, Asian, or any other minority race or ethnicity—in the central role of the "Bachelor" or "Bachelorette." In 16 seasons of The Bachelor and 7 seasons of The Bachelorette,every person featured in the lead role on either show has been white.
The claims are based on 42 U.S.C. § 1981 (racial discrimination in the making of contracts) and racial discrimination under California state law.

This should not be confused with the class action I'm planning to file on behalf of aggrieved husbands whose wives force them to watch these shows - contact me if interested ;-)

You can read the full complaint in the real lawsuit here:
(if you cannot see the embedded complaint, click here to view online)
Bachelor

Wednesday, April 18, 2012

Anatomy of an Employee Facebook Password Protection Law

The "hot topic" of employers demanding Facebook passwords from job applicants has just about been beaten to death. However, the Maryland legislature recently passed legislation prohibiting the practice. And, I thought it would be interesting to see what the legislative response looks like.

You can view the bill in its entirety here. But let's do a breakdown:

Prohibited Activity
The heart of the legislation is an express prohibition:
An employer may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through an electronic communications device.
Note that it includes current employees as well as applicants. Employers are also prohibited from discharging, disciplining, penalizing, threatening, or refusing to hire anyone for refusing to provide such information.

Exceptions
Of course, there are always exceptions to the rule. Here, the law does not apply to "nonpersonal accounts or services that provide access to the employer's internal computer or information systems." Employers may also conduct certain investigations (regulatory and legislative compliance, to protect proprietary information, etc.).

Definitions
The law includes definitions of 'employer' and 'applicant' that are unremarkable. The definition for 'electronic communications device' is extraordinarily broad to include:
[A]ny device that uses electronic signals to create, transmit, and receive information [including] computers, telephones, personal digital assistants, and other similar devices.
Strangely, the law does not define "a personal account or service," which is what the law supposedly protects.

Enforcement
[Crickets]

Huh? No enforcement provision? I'm guessing (at this point I will note that I do not practice in Maryland) that Maryland recognizes a common law tort, like "wrongful termination," where an individual incurs an adverse employment action in violation of public policy. And, what better statement of public policy can you get than a law directly on point? I invite any Maryland lawyers to chime in with a comment on this issue.

Image: Facebook logo used in commentary on Facebook issues. Not official use.

Tuesday, April 17, 2012

Just In: NLRB Puts Poster Rule on Hold

Last NLRB post of the day... I swear! The NLRB issued a statement from NLRB Chairman Mark Gaston Pearce, which reads in part:
In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.
This is not surprising given recent developments.

Lawffice Links - SCOTUS FLSA Oral Args Edition

Yesterday, the Supreme Court heard oral arguments in Christopher v. SmithKline Beecham Corp., and I cooked up a fresh batch of Lawffice Links just for the occasion:

Just In: DC Circuit Blocks NLRB Rule Pending Appeal

No sooner did I get my More NLRB Poster Drama entry up, than a breaking development emerges out of DC. Remember when I said that a DC district court largely upheld the poster requirement (although, it did effectively gut the enforcement provisions)? Well, the DC Circuit issued this order, effectively postponing the rule until the Court has a chance to look at it (on an expedited schedule).

Never a dull moment! Will this be the breaking point that leads the NLRB to once again postpone the poster requirement? We shall see...

HT: Rich Meneghello via Twitter. Image: NLRB logo used in commentary on the NLRB. Not official use.

More NLRB Poster Drama

Waaay back in August 2011, the NLRB announced a rule requiring almost all private employers to post an NLRB poster notifying employees of their rights under the NLRA. After numerous delays, it eventually looked like April 30, 2012 would be the day the rule would go into effect...

...Not so fast! On Friday, in Chamber of Commerce v. NLRB (opinion), a South Carolina district judge ruled that the NLRB doesn't have the authority to promulgate the poster requirement (coverage from Labor Relations Today here). Of course, that's just South Carolina - but it certainly casts some doubt on whether the poster requirement is lawful. And, a DC court largely upheld the rule.

If you want to defy the rule, and spend tens (hundreds?) of thousands of dollars being a test case outside of South Carolina, be my guest. I tend to side with Eric Meyer's not-legal-advice opinion: Come April 30, until a court in your jurisdiction rules on it, post it (get 'em here). Of course, keep an eye on NLRB.gov - you never know when there might be another delay...

Image: NLRB logo used in commentary on NLRB. Not official Use.

Thursday, April 12, 2012

Employer Wins, then Loses, Right to Search Employee's Home Computer for Porn - COTW #87

In In Re Jordan, 2012 WL 1098275 (Tex. App. 2012), a woman sued her former employer claiming "that she was subjected to a sexually hostile work environment and was fired for reporting it." Specifically, she claimed that she saw "sexually graphic content" on computers at work and it was oh-so-offensive to her. Why was it soooo, offensive? Because she had never seen porn in her entire life until she started working there.

The employer wasn't convinced so it sought some discovery. In particular, the employer wanted a forensic computer examiner to check out the employee's home computer for signs of porn in her Internet history and email. Mission accomplished! - the trial court granted just such an order.

Not so fast! The appeals court reversed (technically, it threatened the trial court with a writ of mandamus if it didn't vacate), holding that the employer was required to set forth its search methodology and the examiner's credentials. The trial court should also have considered a protective order and been "sensitive to the highly intrusive nature of computer storage search."

HT: Internet Cases - and Heather Bussing via colorful tweet.

Tuesday, April 10, 2012

Is Violation of Employer's Computer Use Policy a Federal Crime?

The Ninth Circuit handed down its opinion in U.S. v. Nosal today, adopting a narrow view of the Computer Fraud and Abuse Act. Judge Kozinski opens the opinion with a great intro:
Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.
It's a pretty short opinion, so feel free to read the whole thing. [Spoiler Alert] The Court adopted a narrow view of the statute:
We need not decide today whether Congress could base criminal liability on violations of a company or website’s computer use restrictions. Instead, we hold that the phrase "exceeds authorized access" in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly . . . . This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking—the circumvention of technological access barriers—not misappropriation of trade secrets—a subject Congress has dealt with elsewhere. Therefore, we hold that "exceeds authorized access" in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.
(emphasis in original). The Court notes that there is a circuit split on this issue, so maybe we'll get some Supreme intervention.

HT: Orin Kerr at Volokh Conspiracy.

Monday, April 9, 2012

Miles on PA Unemployment Compensation Shared Work Program

On Sunday, the Pittburgh Post-Gazette ran a story on the new shared work program provisions enacted as part of the recent Pennsylvania Unemployment Compensation reforms: Workzone - Pennsylvania gets on Work-Sharing Bus. The author, Len Boselovic, chatted with me about the new law and cited me a few times in the article.

It is a nice overview of the new program, and I recommend checking it out. As an attorney, I feel the need to place a finer point on a few aspects of the program:

The 10% Layoff Requirement
From the article:
Under Pennsylvania's program, employers will have to complete a Department of Labor and Industry application and certify they are cutting hours across the board as an alternative to laying off 10 percent or more of the work force, said Philip K. Miles III, a State College attorney who specializes in employment law.
Employers also have the option to create a shared work program for a subset of their work force, such as a specific department or shift. That subset is called the "affected unit." The employer only needs to certify that it is implementing the shared work program in lieu of layoffs that would have affected 10% of the affected unit - which may not be the whole work force.

Length of Eligibility
From the article:
Mr. Miles said workers covered by the program can collect jobless benefits for up to 52 weeks. They will not be able to collect benefits that long if they previously collected unemployment and their eligibility expires while they are on work-share, he said.
Just to clarify - employees can collect benefits for the length of the shared work program, or the end of their regular entitlement period... whichever ends first. The maximum length of a shared work program is 52 weeks. So, the only way an employee would actually collect 52 weeks is if he or she had 52 weeks of eligibility and the shared work program lasted the full 52-week maximum.

Pennsylvania implemented the new program just last month. You can find more information at the Department of Labor and Industry's website, here.

Image: Photo of Centre County CareerLink, where they hold Unemployment Compensation Referee hearings (among other things).

Miles on... the Environment?

Yup, it's true. The Centre Daily Times published my article, Class Looks at Issues Around Gas Drilling, yesterday. In the article, I detail my experience with Leadership Centre County (Class of 2011) Environment Day. I enjoyed the full LCC program, and currently serve on its Alumni Relations Committee. The article is by no means a position paper (with regard to the environmental issues) - it's more of a pro-LCC/education piece. Enjoy!

Image: A photo of the actual drill site our class visited.

Friday, April 6, 2012

Olbermann Makes it Official - COTW #86

Today is my first vacation day of the year, so this is a brief entry. Last week, Keith Olbermann had a falling out with Current TV and its executives (Joel Hyatt and Al Gore). Well, yesterday Olbermann made it official. You can read a copy of the Complaint here, courtesy of TMZ (if you're not familiar with TMZ, it's basically like the Harvard Law Review, except not at all).

The Complaint starts off with guns blazin', including an allegation in the first paragraph that Hyatt and Gore are "dilettantes portraying entertainment industry executives." Zing! Olbermann's suit is based on breach of contract, breach of the implied covenant of good faith and fair dealing, and a bunch of declaratory judgment requests to clarify the duties and obligations of the parties to the contract. Oh, it also includes a demand for a jury trial - that could be Olbermann's highest rated show ever!

Wednesday, April 4, 2012

EEOC Issues Final Rule on "Reasonable Factors Other than Age" Defense

The EEOC issued its final rule on the "Reasonable Factors Other than Age" defense. The defense is used in ADEA (age discrimination) cases where a facially neutral policy or practice has a significant disparate impact on workers over 40 on the basis of older age.

Some of the highlights:
[A]n employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.
The EEOC also provided some considerations that are relevant, though no single consideration is determinative:
(i) The extent to which the factor is related to the employer’s stated business purpose;
(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
You can also check out the EEOC's press release or their Questions and Answers on the final rule.

Image: EEOC logo used in commentary on EEOC. Not official use.

Tuesday, April 3, 2012

Olbermann Employment Law-Palooza

Short story, tons of employment law! Current TV founders, Al Gore and Joel Hyatt, issued a statement on Friday that they had terminated Keith Olbermann. Olbermann responded with his own statement:
Nevertheless, Mr. Gore and Mr. Hyatt, instead of abiding by their promises and obligations and investing in a quality news program, finally thought it was more economical to try to get out of my contract. It goes almost without saying that the claims against me implied in Current's statement are untrue and will be proved so in the legal actions I will be filing against them presently.
Breach of contract lawsuit! He also drudged up Hyatt's past - a $157,000 judgment against Hyatt Legal Services for employment discrimination against a man with AIDS. Olbermann did not mention the sexual harassment charges against Al Gore (which were dropped).

Any more employment law? Well, Olbermann will reportedly be replaced by Eliot Spitzer, who is perhaps best known for his relationship with... ahem... we'll just call her an independent contractor.

Image: Keith Olbermann via Creative Commons.

Monday, April 2, 2012

The Case Against Requiring Social Network Passwords

No, I'm not finished milking this issue yet. The topic of employers requiring applicants' Facebook passwords at job interviews has generated significant backlash, and a consensus amongst employment law bloggers that it's not cool and potentially not legal (Molly DiBianca joined earlier today).

What is unlawful about it? Generally, the Stored Communications Act prohibits accessing "a facility through which an electronic communication service is provided" without authorization. 18 U.S.C. § 2701(c). In Pietrylo v. Hillstone Restauarant Group, the District Court of New Jersey applied it to an employer who accessed a forum using an employee's MySpace login:
[The Employee] testified that she felt she had to give her password to [her supervisor] because she worked at [the employer] and for [the supervisor]. She further testified that she would not have given [her supervisor] her password if he had not been a manager, and that she would not have given her information to other co-workers. Furthermore, when asked whether she felt that something would happen to her if she did not give [her supervisor] her password, she answered "I felt that I probably would have gotten in trouble." The jury could reasonably infer from such testimony that [the employee's] purported "authorization" was coerced or provided under pressure. As a result, this testimony provided a basis for the jury to infer that [the employer's] accessing of the [MySpace forum] was not, in fact, authorized.
Got that? An employer may be liable under the Stored Communications Act, where a supervisor pressures an employee in to handing over her password (and then using the password to access the service).

It's pretty easy to see how this might extend to the job application process - if the applicant hands over her password was it "coerced" or "under pressure" so as to make subsequent use of the password "unauthorized?"

I say "might" for two reasons: 1. maybe Pietrylo would have come out differently if it was an applicant and not an employee; and 2. one unpublished District of New Jersey opinion hardly resolves the issue. The bottom line is that accessing social networks after pressuring an employee or applicant to log in or hand over a password is risky - and might result in liability.