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June 1, 2011

Summer Jobs, Sexual Harassment

June is here, and it's time for teenagers everywhere to don their uniforms, paper hats, and  flair for their summer jobs (if they've been lucky enough to land one). But be careful out there kids: Sexual harassment of teens is a big problem, particularly for girls. Just yesterday, the EEOC announced that it had settled a case for $290,000 against a Dunkin' Donuts franchise, in which a manager had repeatedly touched, hugged, and made lewd comments to female teenage employees.

Although the EEOC keeps statistics on sexual harassment charges, the agency doesn't provide the age of the complaining employee. And of course, just like adults, many girls choose not to complain or file a charge. According to one study cited in the PBS program "Is Your Daughter Safe at Work," 200,000 girls are assaulted in the workplace every year. A 2005 study showed that almost half of the teenage girls surveyed had been harassed at their jobs.

These numbers are high, but unfortunately not that surprising. Egregious sexual harassers are predators, and predators choose their prey with care. Teenage girls are targeted precisely because they are the least experienced, least powerful, and least likely to complain. To help combat the problem, the EEOC has set up its Youth at Work website, which informs teens of their rights and responsibilities under the laws that prohibit harassment and discrimination. 
May 12, 2011

Wage and Hour App Lets Workers Track Hours on Their Phones

Earlier this week, the federal Department of Labor (DOL) announced the release of its first smartphone application: a timesheet that allows employees to keep track of their work hours and calculate how much they are owed, in straight wages and overtime. (I learned about it over at the Workplace Prof Blog.) The DOL says it hopes to provide updates to the free app that allow employees to keep track of bonuses, commissions, tips, holiday pay, and more. 

As the DOL press release says, the information this app helps employees track "could prove invaluable" in a Wage and Hour Investigation. Here's why: If an employer fails to keep accurate records of hours worked by its employees (as required by the Fair Labor Standards Act), then the DOL will presume that any records the employees can produce are correct. The employer can try to overcome this presumption, but without proper wage and hour records -- and facing employees who have tracked their hours in real time on their smartphones, using an app created by the government agency conducting the investigation -- it's going to be a steep uphill battle. 

May 3, 2011

Twitter Dispute at Reuters Is Resolved

A few days ago, Thomson Reuters reached a tentative contract with the Newspaper Guild (the union that represents hundreds of its employees). According to an article by Steven Greenhouse in the New York Times, the deal finally came -- settling a dispute that's gone on for more than two years -- at the end of a 21-hour negotiating session. The deal settles a number of contested issues, including raises, payments to employees to cover wages lost while there was no contract, benefits, and scheduling. 

And then there's that Twitter complaint: As I posted last month, the National Labor Relations Board confirmed that it was considering bringing a complaint against Reuters over many issues in the ongoing dispute, including the company's apparent reprimand of an employee for Tweeting a criticism of its dealings with the union. This was just the latest indication of the NLRB's interest in social media -- and more particularly, whether employer efforts to police what employees say online about the company are violating employee rights to communicate and act collectively. 

As part of the tentative deal, Reuters has agreed to negotiate a new policy on social media, which will explicitly protect the rights of employees to engage in protected concerted activities: to speak about, and take action regarding, the terms and conditions of their jobs. Reuters has its current policy and guidelines for reporters on use of social media (part of its Handbook of Journalism) posted on its website. I really hope the company also posts its new policy, once it's available. That would be a huge help to employers trying to navigate this developing area of law and commerce. 
April 8, 2011

Twitter Post Reprimand May Lead to Labor Complaint

A reporter for Thomson Reuters says that she was reprimanded for a Tweet -- and the National Labor Relations Board (NLRB) is ready to make a federal case out of it. According to the New York Times, a supervisor at Reuters invited employees to send posts to a company Twitter address, giving their views on how to make Reuters the best place to work. Deborah Zabarenko, an environmental reporter and the head of the Newspaper Guild at Reuters, sent this post: "One way to make this the best place to work is to deal honestly with Guild members." (The Guild is the union that represents journalists at Reuters.)

Apparently the company didn't intend for employees to be quite so frank. Zabarenko said that her bureau chief called her at home the next day and informed her that "Reuters had a policy that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters." 

The NLRB apparently plans to file a complaint against the company, alleging that it violated employees' rights to engage in protected, concerted activity to improve the terms and conditions of employment -- in other words, that it committed an unfair labor practice. Based on the Times article, Reuters sounds fairly surprised by the allegation, partly because its social media policies are similar to those at many other companies.

But the NLRB action isn't such a surprise, given the agency's apparent interest in employee use of social media to air complaints about their employers. Just a few months ago, the NLRB filed its first complaint involving social media, against a company that fired a worker for criticizing her supervisor on Facebook. In that case, the agency's complaint went further than the treatment of the employee to allege that the company's policies on blogging and Internet posts were improper, because they were so broad as to prohibit protected employee activity. (The case settled, and the company agreed to revise its policies to make sure employees wouldn't be disciplined for protected posts.) 

It seems more than a little strange that Reuters would invite comments on how the company could improve if it didn't expect to hear any criticism. And Zabarenko's comment, though it implies that the company isn't dealing fairly with the union, is at least polite and restrained, more than can be said for much of what ends up on social networking pages. Ultimately, if a company reprimands an employee for expressing support for a union and criticizing the way management is dealing with that union, it should probably not be that surprised to hear from the NLRB. 

March 28, 2011

Final ADAAA Regulations Issued

Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)

Here are a handful of the changes I found interesting:

List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.

"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.

Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?  

Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.

Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)

March 4, 2011

Do You Check Facebook When Hiring?

Do you check Facebook or other social networking sites for information about job applicants? If so, you're not alone: A survey by Jobvite Inc. shows that more than 80% of companies do. But there are legal risks to using social networking sites as a screening tool. 

As a recent column in Fortune points out, using Facebook and other social networking sites in hiring can lead to discrimination claims. When you view someone's page and posts, you may well see information that you are not allowed to consider in hiring, such as race, religious or political beliefs, and so on. (The column uses the great example of discovering that an applicant belongs to a number of groups for expectant mothers.) If you decide not to hire that person, you may be accused of basing your decision on this information that you would otherwise not be privy to or allowed to use in the hiring process.

The article also discusses the possibility of disparate impact discrimination claims, based on the fact that Latinos and African Americans are disproportionately represented on LinkedIn, the job networking site most commonly consulted by hiring managers. 

Employees and job seekers who use social networks are routinely told to mind those privacy settings. In other words, if you want to keep your online persona personal, use privacy controls to make sure that your information can be seen only by those you have approved. But even this may not be enough to ward off prying potential employer eyes: In an incident publicized a few weeks ago by the ACLU of Maryland, Robert Collins was asked, during a recertification interview for his job at the Maryland Department of Corrections, to provide his Facebook user name and password. Then Collins got to sit and wait while his interviewer read his page and all of the posts by his friends and family. 

Regular readers of this blog know of my ongoing fascination with the breakdown of public and private lives enacted by social networking sites -- and particularly, the large numbers of people to whom the public nature of their posts becomes clear only after it's too late. (Examples from the recent news are people whose posts become evidence in criminal proceedings, including a woman who had a Facebook fight with a friend over a $20 loan for baby formula and diapers, which escalated to online threats and homicide, and a suspected bank robber who jumped to the top of the most wanted list when he found some time while on the lam to log on to MySpace and post, "on tha run for robbin a bank.")

But if someone takes the time and trouble to try to limit their social networking to their actual social network -- their family and friends -- there could be a better privacy argument to be made. Depending on the site's privacy controls and the care the user takes to limit access to personal information, there may well be a stronger expectation of privacy in what's posted on these pages. We'll have to see where courts come down on this issue. 
February 15, 2011

Attorney-Client Privilege and Company Email

Last month, the California Court of Appeals ruled against an employee (Gina Holmes) who claimed that she was harassed because of her pregnancy; subjected to emotional distress and invasion of privacy when her boss (Paul Petrovich) shared information about her pregnancy with others at the company; and constructively discharged. Based on the information in the Court's decision, each party had some facts in its favor. Petrovich, apparently feeling that Holmes had been less than honest about the length and timing of her planned pregnancy leave, made some inappropriate comments; Holmes rushed out the door on her way to a constructive discharge claim, having not yet suffered the kind of offense necessary to support her case. 

So far, nothing new. What makes the case interesting is all of the email. Petrovich's comments to Holmes took place via email, he shared what she told him about her pregnancy with others via email, and Holmes contacted and communicated with a lawyer about suing the company . . . using the company's email system. Her lawyer told her to delete the messages, but we all know how effective that is. The company found them while preparing for trial and used them as evidence, over Holmes's objections that they were protected by the attorney-client privilege. 

The company had a written policy stating that its email system was for business use only, that employee messages could be monitored at any time, and that employee messages were not private. Holmes argued that her communications with her attorney were nonetheless privileged because she wasn't aware of the company ever actually reading employee email. In other words, although the company reserved the right to monitor, she didn't know of any instance in which it had actually done so. The court didn't find this persuasive, however. Because she was on notice that her email messages weren't private, she couldn't prove that she had communicated with her attorney in a confidential manner. The court compared her email exchanges to consulting with her attorney "in her employer's conference room, in a loud voice, with the door open." In other words, given the company's policy, she should have known that her conversation could be disclosed. 

This isn't the first case that has ruled against the privilege-claiming employee. For example, one New York court found that a doctor who sent email to his lawyer on his employer's system had waived the attorney-client privilege because the employer's policy prohibited personal use of the system and told employees that it monitored employee email. (Scott v. Beth Israel Medical Center, 847 N.Y.S. 3d 436 (N.Y. Sup. 2007).) On the other hand, several courts have found that an employee who uses a personal email account for legal correspondence, even if using a company computer, has not waived the privilege, regardless of the employer's monitoring practices and policies. (Stengart v. Loving Care Agency Inc., 990 A.2d 650 (2010); Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D. NY 2006).

Here are a couple of takeaways from this case: 
  • Policies are important. Employees, read your company's policies and act accordingly. If your company prohibits personal use of the email system, just don't do it. Don't get lulled into a false sense of security by lax enforcement, because you can bet that the company will enforce that policy once it has a reason to. Employers, if you ever anticipate you might have to read employee email, adopt a policy, ask employees to sign a form acknowledging that they have received and read it, and enforce it consistently.
  • Take a deep breath and count to ten. You can send an email message in a moment, but that doesn't mean you should. A little patience would have served everyone well in this case, including: (1) Petrovich, who responded to Holmes's message about her pregnancy leave "a short time later" with the comment, "I need some honesty. How pregnant were you when you interviewed with me?" (2) Holmes, who began her email reply to this message by saying that she thought the conversation should be conducted in person, "but here it goes anyway . . . " (3) Holmes again, who first emailed her attorney, from work, at 3:30 in the afternoon. You couldn't wait a couple of hours and email from home, or maybe just call her on your cell phone? 

December 13, 2010

Linking to WikiLeaks Could Cost You a Job, Universities Warn Students

Last week, the federal government warned its employees that the trove of diplomatic cables and other intelligence documents posted on WikiLeaks are still considered classified until they are officially declassified by an appropriate government agency. Employees and contractors who do business with the federal government were told that accessing this information on their work computers, personal computers, or portable devices was forbidden. When asked whether this meant employees would be fired for viewing the documents, a spokesperson for the Office of Management and Budget (OMB) ominously told CNN that such "breaches of protocols governing access to classified material are subject to applicable sanctions under long-standing and existing law."

The OMB warning didn't tell agencies to block employee access to the WikiLeaks site or other sites that posted the documents. But the Library of Congress did so anyway: Neither its employees nor its patrons may access the WikiLeaks site, according to the New York Times

Now, the warning has been extended to those who aren't federal employees or contractors, but one day hope to be: Students at the Columbia School of International and Public Affairs, for example, were sent an email message from the career counseling office, informing that that an alumnus working in the State Department recommended "that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government." (Check the whole message out here.) According to CNN, students at Georgetown and Boston University received similar messages.

These warnings have led to a lot of lively online discussion about free speech and the importance of allowing open debate of ideas, particularly in an academic setting. They've also led to some talk about how private employers might treat the same issue, particularly whether an employer might be legally justified in firing or refusing to hire someone who posted links to WikiLeaks or supported the group's policies on social networking sites. 

My two cents is that even though such a rule might be legal, it's tough to see why a company would want to go this route, given the resulting bad publicity and poor morale that would almost certainly result. Contrary to popular belief, the First Amendment protects us from governmental action or restriction only: It doesn't prohibit private employers from putting limits on speech. Other laws might, however. As I posted recently, the NLRB has said that private employers can't restrict employees from communicating with each other about the terms and conditions of employment, even if that communication takes place on a public website. And some states prohibit employers from taking action against employees based on their political beliefs, or on any legal activities they choose to engage in during their private time. In these states, a "no posting about WikiLeaks" rule wouldn't pass legal muster.  

December 3, 2010

OSHA Says Texting While Driving Is a Workplace Hazard

Texting while driving has emerged recently as a major public safety issue. Just a few years ago, only a handful of states banned the practice. Now, more than half of the states prohibit all drivers from texting while driving; some states impose a ban only on certain drivers (younger drivers or bus drivers, for example; you can find a frequently updated chart of state laws on texting and using cell phones while driving here, at the website of the National Conference of State Legislatures). 

And it's no wonder why: According to the Virginia Tech Transportation Institute, texting while driving increases the risk of a crash or accident by 23 times, a much greater danger than any of the other activities studied (such as dialing or using a cell phone). Texting resulted in drivers taking their eyes off the road for the longest period as well. How long? Long enough to travel the length of a football field at 55 mph, according to the study. (Check it out here.) 

Recently, OSHA decided that enough facts were in to officially declare texting while driving a workplace hazard and an OSHA violation. On its new "Distracted Driving" page, OSHA tells employers that requiring, encouraging, or condoning texting while driving for work is prohibited:
"It is your responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving. Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job."

The agency goes on to tell employers that it will investigate complaints that an employer requires or encourages texting while driving, and will issue citations and impose penalties on those who fail to comply. 

And now a word from our shameless commerce division: If your company is searching for one of those "clear, unequivocal" policies prohibiting texting while driving, pick up a copy of my book, Smart Policies for Workplace Technologies.
November 9, 2010

Final GINA Regulations Address Online Searches, Wellness Programs, and More

Today, the Equal Employment Opportunity Commission released final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.

The final regs largely adopt the interim regs published more than a year ago, but there are some important changes and additions as well. The new material deals mostly with the exceptions to the law: situations in which employers may acquire genetic information without violating GINA. Here are some of the more important changes and clarifications:

Online searches. Employers may obtain genetic information on an employee without breaking the law if the information is acquired inadvertently or through information that is publicly and commercially available (for example, from an article in a newspaper). The final regulations clarify that these exceptions don't apply if the employer acts deliberately, including by searching for genetic information online. For example, the inadvertent exception protects an employer if a manager is Facebook friends with an employee who posts personal genetic information. It doesn't protect an employer that conducts an Internet search that is likely to yield genetic information (such as a Google search for the employee's name and a genetic disease or disorder). Similarly, an employer that acquires genetic information from commercially and publicly available sources hasn't violated the law, but an employer that accesses these sources with the intent to gather genetic information (for example, by visiting sites about genetic testing) isn't protected by the exception.

Safe harbor for employers who give warnings. The final regulations note that an employer may receive genetic information even if it doesn't request it, particularly if the employer legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also receive genetic information. In these situations, an employer's acquisition of genetic information will be considered inadvertent -- and won't violate the law -- if the employer tells the employee or health care provider not to provide genetic information. The regulations provide sample language employers can use to give this notice, in writing or orally.

Incentives for wellness programs. An exception applies to employers who offer health or genetic services as part of a wellness program, as long as employee participation is knowing and voluntary (among other things). The final regulations address what "voluntary" participation means when an employer offers incentives to participate in the program (for example, a payment for completing a health risk assessment). In this circumstance, the employer will be covered by the exception if employees are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered.

Cleaning up personnel files. The final regulations provide that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, GINA's prohibitions on employer use and disclosure of genetic information applies to all such information, whether the employer acquired it before or after the law went into effect. As a practical matter, this means that employers should review personnel files, remove any genetic information contained in them, and create separate, confidential medical files for this information. (Most employers will already have confidential medical files to comply with the ADA, so this shouldn't pose much of a burden.)