March 2010 Archives

March 23, 2010

Virtual Doesn't Mean Invisible

Almost every week, I'm surprised -- again! -- by a story about online posting gone wrong. But never as surprised as the subjects of these stories, who invariably claim to be shocked that other people actually saw the sexual photos, references to binge drinking and drug use, bathroom humor, snarking, venting, and otherwise not ready for prime time content that they posted on the Internet. This is one of my hobby horses, I know. And I promise to stop talking about it just as soon as it stops happening. But for now, I just keep wondering why people don't get that the content they post publicly will in fact be viewed by . . . the public.

This week's story? Well, there were a few. Most cringe-worthy to me was the engaged couple profiled in the New York Times who like to fight on Facebook, because, as the soon-to-be Mrs. said, "A lot of people aren't with us if we have a fight at home . . . [This way] all of our friends can kind of comment on it." Has the couple considered how all their online sniping looks to readers beyond their social circle? I would guess not, judging from the fact that even their friends think the online fighting is inappropriate. (One bridesmaid complained to the Times about having to spend hundreds of dollars getting ready to be in the wedding when "their whole relationship is falling apart on Facebook.")

Or how about the three prison guards in Nebraska, fired after one said on Facebook that he enjoyed smashing an inmate's face into the ground, and the other two posted supportive comments? The British travel agent fired after complaining about a coworker on Facebook, saying "I swear I will smack the brown-nosing cow in the face before the end of my shift!"? 

Then, there was a conversation I had with a friend who conducts sexual harassment prevention training, who told me that she is routinely met with audience surprise when she points out that harassment and inappropriate behavior can take place via social networking sites. The surprise isn't that there's sexually explicit or biased content on these sites, but that it could get you in trouble at work. These sites are widely seen as part of our private lives, not our professional lives. Even if you're the boss and you've "friended" your reports and coworkers, who are now all invited to view your X-rated photos. Even if you're job hunting and employers Google your name (according to a recent Wall Street Journal column, 85% of hiring managers do), only to find your sexually explicit posts. Even if your company has its own Facebook or MySpace page or Twitter account, and individual employees have joined as fans, friends, or followers -- which means corporate customers can click on over to employee posts (that weren't intended to represent the company). 

What interests me most about these situations is the simultaneous desire to be seen (isn't that the purpose of posting online?) and surprise when it happens, at least beyond the intended audience. I'm using the term "surprise" as a stand-in for what is usually a stronger response: Often, someone whose online post comes back to bite the poster in the posterior expresses anger, affront, even a sense of unfairness or violation that content posted for  friends and like-thinkers was viewed differently -- and maybe used as a basis for judgment --by outsiders and authority figures. The affront seems to come from the lack of control over how posted content is interpreted. The poster wanted others to think he or she was funny, clever, or cool, and is offended to have instead been found crude, insensitive, or mean.

Despite George W. Bush's malaprop references to "the Internets," there's only one -- and I think that might be at the root of the problem. On the Internet, many find a creative outlet, a place to express themselves and engage with a like-minded community. But it's also a tool for job hunting and recruitment, research, shopping, advertising, dating, propaganda, law enforcement, you name it. Our friends can read what we post, but so can our employers, our customers, the cops, our mother's book group, our wedding party, our local prisoners' rights organization, and that brown-nosing cow. So let's be careful out there, people.   

March 16, 2010

Supreme Court Takes Case on Background Checks

The Supreme Court has agreed to hear a case challenging the federal government's background check process. (The case is called National Aeronautics and Space Administration v. Nelson; you can find links to the petition and other documents here, on SCOTUSblog.)

The underlying challenge was raised by a group of scientists, engineers, and administrative support employees who worked at the Jet Propulsion Laboratory (JPL), a research lab run by NASA and the California Institute of Technology. The employees were officially employed by CalTech. Following a policy change in 2007, all JPL employees whom the government categorized as "low risk" (they didn't have access to classified material) had to submit to the background check procedures routinely applied to federal civil service employees in order to maintain their access to the JPL. The employees filed a lawsuit and sought a preliminary injunction to stop the new policy from going into effect until the court had a chance to decide whether it was constitutional. 

The background check -- called the Nationwide Agency Check with Inquiries (NACI) -- requires employees to provide information on their residential, education, employment, and military histories; give references; and disclose any use of illegal drugs in the past year, along with any treatment or counseling received. Employees must also sign a release form allowing the government to collect information from landlords, employers, and references on a wide variety of topics, including "financial integrity," "mental or emotional stability," and "general behavior or conduct."

The Ninth Circuit Court of Appeals ruled in favor of the government on several issues. However, the Court found that the employees were entitled to a preliminary injunction because they had raised serious questions as to whether their constitutional right to informational privacy was violated by the question asking about drug treatment or counseling and by the release form (and subsequent inquiries it authorized). NASA petitioned the Supreme Court to hear the case, and the Court agreed to do so earlier this month.

This case challenges background checks applicable to government employees and contractors. The U.S. Constitution protects only against action by the government (in this case, NASA's decision that JPL employees had to pass a background check), not actions by private companies and employers. So, while the outcome of the case could be hugely significant to federal sector employees, who have been subject to these same background check requirements for decades, it won't be directly applicable to those who work in the private sector. However, state courts often follow the Supreme Court's lead and guidelines in deciding cases alleging violations of privacy, even though the right to privacy applicable in those cases generally comes from a state constitution, statute, or case law, not the U.S. Constitution.

Private sector employees could be more directly affected by some of the background check developments reported on this week by SHRM, here (you may need to be a SHRM member to view the article). SHRM reports that the EEOC is considering issuing new enforcement guidance explaining when employers may consider an applicant's credit history and arrest and conviction record in the hiring process. The EEOC has long stated that using credit reports and criminal records to disqualify applicants could have a disparate impact based on race; if so, the employer would have to show that the practice is job-related and consistent with business necessity. SHRM offers some tips that will help employers avoid legal trouble when performing background checks, including that employers should be selective in deciding which positions require a background check and should allow applicants to explain negative information that turns up.   

March 15, 2010

Personal Liability for FMLA Violations

Yet another federal court has found that an employee may sue not only the company but also individual managers -- and even an HR representative -- for violating the FMLA. As reported here in the Legal Intelligencer, a federal district court judge for the Eastern District of Pennsylvania ruled (in the case of Narodetsky v. Cardone Industries, Inc., et al.) that a fired employee's lawsuit may go forward against the former employer and five individual defendants, including the plant manager and the human resources manager, director, and representative. (The individual defendants filed a motion to dismiss the allegations against them, which the judge denied.)

The employee who was fired, Dmitry Narodestsky, claimed that the day after his wife told the company he would need leave for surgery, the defendants searched his computer looking for a reason to fire him. Narodestsky was fired about two weeks later for forwarding an email to another employee. Several of the individual defendants were present at the termination meeting.

The judge refused to dismiss the claims against the individual defendants based on the language of the FMLA regulations, which state that "any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer" may qualify as an employer under the law. The judge also found that the individual defendants exercised some control over Narodetsky's employment, in that they participated in the decision to fire him and the termination meeting.

This decision is only the latest in a long line of cases that have upheld FMLA claims against individual managers and officers who have played a role in denying an employee's FMLA rights. To make sure your company is in compliance, pick up a copy of Nolo's The Essential Guide to Family and Medical Leave (full disclosure: I'm the coauthor). The most recent edition covers the 2008 revision of the FMLA regulations, recent provisions relating to leave for military family members, and the new forms and notice requirements.


March 9, 2010

COBRA Subsidy Extended -- and Expanded

After the Senate finally convinced Senator Jim Bunning to stand down his one-man protest (covered in my previous post), Congress passed -- and the President signed -- an extension of the COBRA subsidy last week. (You can find the bill, called "The Temporary Extension Act of 2010," here.) The extension is clearly a stopgap measure: It lasts only until the end of this month (March), by which time Congress hopes to have passed a more comprehensive jobs bill that will keep the subsidy in effect through the end of this year.

But the one-month extension of the subsidy wasn't the only COBRA news in the Temporary Extension Act: The bill also expands eligibility for the subsidy to those who initially lose their health insurance coverage due to a reduction in work hours, then are laid off. This is a small but vitally important change: Many businesses have tried to weather the current economic storm by cutting back on hours worked (and how much employees are paid for those hours). The most recent figures from the Bureau of Labor Statistics (for February 2010) show that more than six million people are involuntarily working part time due to business conditions or lack of work. Unfortunately, given the current economic climate, many of these businesses will ultimately have to make deeper cuts -- and many of these involuntary part-timers will eventually lose their jobs altogether.  

The new law gives these employees another opportunity to elect COBRA coverage once they are terminated -- and, therefore, become eligible for the subsidy. A cut in hours that makes an employee ineligible for group health insurance through the employer's plan is already a COBRA qualifying event, and the new law doesn't change that. Nor does the law make employees who are still working at reduced hours eligible for the subsidy. What the law does is provide an additional election period to these employees if they subsequently lose their jobs and become eligible for the subsidy. If an employee initially declined coverage or elected coverage but let it lapse, the new law gives that employee another chance to elect coverage after a job loss.   

March 2, 2010

Senator Bunning Blocks COBRA Subsidy Extension

Toward the end of last year, Congress extended the COBRA subsidy provision. The original subsidy program applied only to those who were involuntarily terminated from September 1, 2008, through December 31, 2009. These former employees were entitled to a 65% subsidy of their continuing health insurance premiums for up to nine months. The extension increased the duration of the subsidy to 15 months. It also extended the eligibility period to include those who were involuntarily terminated through February 28, 2010. If you don't have your calendar in front of you, that was two days ago.

Last week, the House of Representatives passed a temporary measure that would have extended the eligibility period for another month, to the end of March 2010, to give Congress some time to get its act together and pass a more comprehensive jobs bill. But the Senate has been blocked from voting on the extension by Senator Jim Bunning of Kentucky. Bunning's camp says he doesn't necessarily oppose the measure, but wants Congress to stop passing spending bills that it can't pay for. (Bunning himself, in response to criticism of his action last week on the floor of the Senate, had a shorter comment: He is reported to have said "tough s%*t" in response to another Senator's remarks that Bunning should drop his opposition to the bill.)

Bunning has been taking a lot of criticism for his action, but that's nothing new for this Senator. After a public fight last year with the National Republican Senatorial Committee (which reportedly included a threat by Bunning to sue the group), Bunning announced he would not run for reelection. In recent years, Bunning's apparent gaffes, from his comments about Supreme Court Justice Ginsberg's cancer to his comment that an opponent in his previous reelection race looked like one of Saddam Hussein's sons, have garnered a lot of press.

Bunning's action prevents the Senate from passing the House's temporary measure by unanimous consent. If that procedural avenue is blocked, the Senate will have to override his objection or simply pass the COBRA extension as part of its broader jobs bill (which, in its current form, extends the program until the end of this year), either of which will take some time.