Nolo's Employment Law Blog

There have been a number of legal developments involving Facebook, MySpace, and Twitter lately, all demonstrating that the intersection of traditional employment law and social networking sites has yet to be fully mapped.

Part of the problem seems to be that users of these sites believe themselves to be invisible, at least to their employers. For example, according to an article on Workforce Management (you may have to register to view it), investigators looking into employee workers' compensation claims search social networking sites for photos of employees engaged in activities that are incompatible with their claimed injuries -- such as bowling a perfect game, taking judo classes, or riding a bucking bronco. Then, there's the recently reported case filed by a Canadian woman, who says that her sick leave insurance benefits for depression were improperly cut off after an agent for the insurance company found photos of her on Facebook vacationing and taking in a show at Chippendales.

Even employees who take precautions to make sure employers can't view their posts are finding that management has its ways. In a recent case in the District Court of New Jersey, for example, some employees at Houston's restaurant created a group on MySpace for the stated purpose of venting about their jobs. The group was private and could be joined only by invitation. However, an employee member of the group showed it to a manager (she testified that she felt pressured to do so), a number of managers read it, and the employees who set it up were fired. The court recently upheld the jury's verdict in favor of the employees.

Some companies are so concerned about what employees -- or even the friends of employees -- might be saying about them online that they have instituted content rules or outright bans on social networking. According to an article in the National Law Journal, more than half of the companies responding a survey said that they prohibit employees from visiting social networking sites while on the clock. And, some companies have adopted rules about the content of employee posts. The Associated Press, for example, is reported to have not only set strict rules for employee pages (including that they should not express political affiliations or take a stand on contentious issues, even if their pages are restricted only to friends), but also asked employees to police the content others post on their pages. (You can find an article from Wired about it -- including a link to the actual policy -- here.) 

Last week, the Supreme Court announced that it would hear a case on the privacy of employee text messages, Quon v. Arch Wireless Operating Co. Although the Quon case involves a government employer, it raises a question that comes up all the time in both private and public workplaces: Are there limits to how far employers may go in monitoring their employees' electronic communications? The Quon case got a lot of press when it was initially decided by the Ninth Circuit, mostly because it's one of the very few cases in which a court said the employer had gone too far.

Jeff Quon was a segeant on the Ontario, California SWAT team. He was given a pager with wireless text-messaging capability for work, and was told that the department's email policy -- which gave the city the right to monitor, prohibited personal use, and told employees their messages were not private -- applied to the pagers. However, the lieutenant in charge of administering employee use of the pagers said something different: He told employees that each pager was allotted 25,000 characters per month, and that employee use of the pagers would not be audited as long as employees paid any overage charges for their accounts.

For eight months, the department did not audit anyone's pager messages. During this time, Quon exceeded the overage limit several times, and paid for his extra usage. When Quon and another officer again went over the limit, the chief decided to audit the use of certain pagers (including Quon's) to figure out whether the city should increase its 25,000 character allotment and whether the officers were using their pagers for personal reasons. The city asked its carrier (the Arch Wireless of the case title) to provide transcripts of the messages on the selected pagers, and found that many of Quon's messages were personal and some were sexually explicit. Quon, his wife, and two others with whom he exchanged text messages than sued for violation of their privacy rights.

The Ninth Circuit found against the city. Despite the written policy, the court found that the lieutenant's statement that he would not read their messages, combined with his practice of actually not reading messages for months, gave Quon and the others a reasonable expectation of privacy in their messages. The court also found that, even though the city's rationale for reading the messages was reasonable, it could have achieved that goal without reading the messages by, for example, warning Quon in advance that his pager would be audited, asking Quon to delete his personal messages, or asking Quon to count the work-related characters himself. Because there were less intrusive ways to find out what was going on with the pager accounts, the city's decision to read the messages was a privacy violation.

Because Quon involves a government employer, the Fourth Amendment (which prohibits unreasonable searches and seizures) applies. The Fourth Amendment doesn't protect private employees, so the court's decision in Quon won't explicitly extend to the private sector. But it will be highly influential: Courts have generally followed similar standards in analyzing privacy claims against private employers. The case will also have wide resonance because it will be the Court's first foray (as far as I can tell) into modern workplace monitoring -- the kind that involves electronic and digital communication, not phone calls and locker searches.

It's not surprising that the Ninth Circuit is one of the few courts to find in favor of an employee's privacy claim. The Ninth Circuit is still known as one of the more liberal -- and protective of civil liberties -- in the nation. And, the judges of the Ninth Circuit, themselves federal employees, have not taken kindly to the monitoring of their own communications: Almost a decade ago, the judges disabled the monitoring software on their own computer systems to protest an announced policy stating that court employees had no right to privacy in their email messages and Internet activities. That part of the policy was later withdrawn, in part because of the attention drawn to it by the Ninth Circuit protest.

That was one of my favorite bumper stickers a few years ago -- and it's even more appropriate today, as more and more employers, states, and now even the federal government are regulating what drivers may do with their cell phones. Just last week, President Obama signed an executive order prohibiting federal employees from texting while driving whenever they are working, whether they are using government-issued phones and cars or not.

State legislators, sometimes in response to well-publicized and horrific crashes, have banned texting in 18 states; it's also banned in the District of Columbia. Although no state currently bans all drivers from using a cell phone, six states require drivers to use hands-free devices if they want to talk on the phone, and almost half of the states ban all cell phone use by new drivers. (You can see state-by-state charts on these issues at the Governors Highway Safety Association website.)

Studies have consistently shown that driving while distracted is very dangerous. An interesting research project by the National Highway Transportation Association and the Virginia Tech Transportation Institute studied the behavior of actual drivers by putting video and sensor equipment in 100 cars for one year. And it was a very eventful year indeed: The drivers put more than two million miles on their cars, had 82 crashes, 761 near-crashes, and more than 8,000 "critical incidents," in which the driver either got to close to something or someone (like a pedestrian or parked car) or had to swerve or brake to avoid a crash. Among other things, the study revealed that:

• Dialing is dangerous, but . . . Although dialing a cell phone is significantly more dangerous than simply talking or listening on the phone, the number of accidents and near-accidents attributable to each activity were about the same because drivers spend so much more time talking on the phone than dialing it.
• Bugs in the car cause a lot of trouble. Certain activities that we all know (or might guess) are dangerous, such as reading, putting on makeup, and dialing a cell phone, increase the risk of an accident by a factor of three. Having an insect in the car increases the risk by a factor of seven. And don't try to swat it: Reaching for a moving object in the car increases a driver's risk of having an accident by a factor of nine.
• Experience counts. Drivers with more years of experience had far fewer crashes and near-crashes than less experienced drivers.
• Better drivers just seem nicer. Better drivers -- those with fewer crashes and near-crashes -- scored higher on tests that measure extroversion, openness to experience, agreeableness, and conscientiousness.
• Some people are just really bad drivers. A relatively small number of drivers caused most of the problems. 27 of the drivers in the test were responsible for almost 75% of the crashes and near-crashes. One of them had 15 incidents in one year.

Given the facts on distracted driving, the increasing number of governments that ban texting and hand-held devices, and the potential for liability, many employers now prohibit employees from texting or using cell phones while driving, or require employees to use hands-free equipment. If your company wants to do the same, you can find sample policy language on these issues in my book, Smart Policies for Workplace Technologies.   

Those of us who live in the Bay Area are familiar with Cafe Gratitude, a small chain of raw food restaurants. These restaurants have a particular atmosphere and culture, one that feels very familiar to me as a local child of the 60s and 70s. I think of it as "control-freak hippie," an apparently easy-going presentation with a very strident center. (As in, "Hey people, I think it would be really cool if we could all DO THIS EXACTLY THE WAY I WANT RIGHT NOW!") 

A game created by the founders, called Abounding River, is available to play at the many shared tables, so diners can explore "Being Abundance" and discover a "Spiritual Foundation that opens up to a whole new way of looking at money and resources" (quotes from the Cafe's website). Everything on the menu is called "I am [positive adjective]", such as "I am worthy," "I am present," or "I am dazzling." And that's what you have to call it when you order: If you try to get away with, "I'd like the pesto pizza," you will be gently encouraged to call it by its true name ("you mean, 'I am sensational'?"). And when your pizza arrives, the server smiles, looks you in the eyes, sets it in front of you, and says, "you are so sensational!" The staff is friendly, the atmosphere is warm, and there are rules.  

As the East Bay Express recently reported, the Cafe's philosophy and culture stem from the Landmark Forum (which grew out of est (Erhardt Seminar Training)), a "transformative learning" program whose graduates sometimes recruit others in ways so insistent that it can feel like proselytizing.

As some Cafe employees have discovered: According to the Express article, all employees are "encouraged" to attend the Landmark Forum, a weekend-long introductory course, and all managers are required to go -- and pay for it. Managers hold daily "clearings," "during which employees answer a series of questions before 're-creating' each other in a process aimed at freeing the workers to be present and alive in the moment for the job" (quote from the Express article). 

Would you like a side of "I am litigious" with that? Because there could be some employment law problems here, as the article also points out. First of all, employers that require employees to attend training sessions have to pay for it -- twice. The employer has to pay the cost of the training, and then has to pay employees for the hours they spend doing it. Then there's the potential religious discrimination problem: Whether or not the Landmark Forum or the owners of Cafe Gratitude would describe their philosophies as "religious," the belief in human potential -- that we create our own reality -- may itself conflict with a religious view that a higher power does the creating. And, if an employer fires or disciplines those who don't share the company's official belief system or complain about feeling pressure to adopt it, an experience one employee described in the Express article, a retaliation claim may not be far behind.   

Did you know that at least four states have passed laws that prohibit mandatory or coerced microchipping, including installing a microchip or radio frequency identification (RFID) tag as a condition of employment? A number of states have legislation addressing the improper use of RFID tags or the information from them (for example, to surreptitiously gather private information). But California, North Dakota, Ohlahoma, and Wisconsin have gone further to ban employers from implanting microchips in their employees as a condition of employment. You can find a list of state RFID laws, with links, here, at the website of the National Conference of State Legislatures.)

California's statute (Cal. Civil Code section 52.7), for example, prohibits requiring, coercing, or compelling anyone to undergo "the subcutaneous implanting of an identification device," including conditioning any private or public benefit on consent to implantation, "including employment, promotion, or other employment benefit, or by any means that causes a reasonable person of ordinary susceptibilities to acquiesce to implantation when he or she otherwise would not." The law imposes penalties of $10,000 per violation, with an additional $1,000 penalty for each day the violation continues; it also creates a right of action, with punitive damages, attorney fees, and litigation costs (including the cost of hiring expert witnesses).

And speaking of high-tech information gathering, one of the fixes currently under consideration for the E-Verify system, the government's online system for authenticating an employee's authorization to work in the United States, involves biometric data. Senator Schumer, Chairman of the Senate Judiciary Committee's Subcommittee on Immigration, Refugees, and Border Security, recently said that E-Verify should include a biometric component -- based on fingerprints, retinal scans, or DNA, for example -- to make sure that the employee is who he or she claims to be. Employment lawyers have raised a number of concerns about the proposal, from privacy violations to concerns about the cost, according to a recent article in the National Law Journal.

Certainly, any employer that requires employees to provide biometric information will have to guard the privacy of that information very carefully. If biometric information is leaked or stolen, the term "identity theft" could take on a whole new meaning -- to include not only identification numbers or bank account information but also the ridges on our fingertips and the unique structure of our faces (or our genes). You can apply for a new Social Security number, but not a new eyeball. And this issue is already on the legislative radar: For example, Illinois recently enacted a law requiring companies that gather biometric data to do so only with written consent, to use reasonable care to store and protect that information (and to refrain from selling it), and to establish a timetable for retaining and destroying the information 

As anyone who listened to even a few minutes of Justice Sotomayor's confirmation hearings knows, the role of the courts in our government of separated powers is not to make the law, but to apply the law. Sounds simple enough (especially when repeated hundreds of times over the course of a week, thank you Senators), but it gets tricky in a hurry when age-old legal principles have to be applied to new developments. This is especially true where technology is concerned: Is it an illegal search if law enforcement uses heat-detecting equipment -- from outside a building -- to uncover an urban pot farm? Do paparazzi at a celebrity wedding unreasonably intrude on the fabulous couple's right to be left alone? Can an employer read text messages sent from one spouse to another during a lunch break?

The courts and the National Labor Relations Board (NLRB) have been wrestling with this problem in defining the appropriate use of email. A couple of years ago, the NLRB issued a controversial decision, In re Register Guard, on employee use of email for union-related messages. This case hinged entirely on how the NLRB categorized email: If email were classified as a conversation, then the rules for union-related communications would apply. The employer would not be allowed to prohibit email relating to union issues. As long as such conversations took place during nonwork hours (for example, during breaks) and didn't cause undue disruptions to work, they would be allowed.

The NLRB didn't view email as a conversation, however: Instead, it applied the rules for use of company property. Under those rules, employees don't have a legal right to use company-owned equipment as they wish. So, the NLRB found, the company was free to restrict employee use of email, as long as it didn't single out union-related messages for punishment. In the Register Guard case, the NLRB found that the company could choose to prohibit all solicitations for outside organizations, including the union, while allowing personal solicitations (like party invitations or notices of tickets or furniture for sale), without violating the law.

Last month, however, this decision was partly overturned. The federal Court of Appeals for the District of Columbia Circuit took a closer look at the case and found that the employer had discriminated against union messages. First off, the Court noted that the NLRB's distinction between solicitations for organizations and personal solicitations was entirely of its own creation: The company's policy prohibited all solicitations, period. And, the Company had not disciplined employees for sending out other solicitations, even though they were equally prohibited by the policy. The Court found that the company enforced its policy selectively only against union messages while allowing a variety of other solicitations to go undisciplined, which is a violation of the National Labor Relations Act.

The D.C. Circuit didn't examine the underlying issue of whether the legal rules applicable to discussions or property should apply to email. But there's a good chance the NLRB itself may take a second look at this determination: The five members of the NLRB are nominated by the President. One of the two sitting members dissented in the Register Guard decision, and President Obama has recently nominated three new members to join her. Given the singular importance of email in today's workplace, it's probably safe to say we haven't yet heard (or typed or texted) the last word on this question.  

Last week, the California Supreme Court decided a big workplace privacy case, Hernandez v. Hillsides, Inc. The case involved a camera hidden in an office shared by two clerical employees of a private residential facility for abused and neglected children. The director of the facility set up the camera after learning that someone was using a computer in that office to view pornography after hours, a violation of the facility's rules and mission to provide a safe place for abused children. After the two women who shared the office discovered the hidden camera equipment -- "small, blinking, and hot to the touch," in the court's oddly breathless description -- they sued for invasion of their privacy.

In reaching its decision in favor of the facility, the Court looked at two issues: (1) whether the hidden camera intruded on the employees' reasonable expectations of privacy, and (2) if so, whether that intrusion was offensive or serious, given the facility's justification for using the camera and other relevant facts.

On the first point, the Court found in favor of the employees. Although the facility had a policy warning employees that their use of company computers could be monitored, employees had no reason to believe that this monitoring might include video recording. The employees had a private office and were not warned about the camera surveillance. Also, the camera was hidden. Weighing all of these facts, the Court found that the employees had a reasonable expectation that they would not be subjected to secret video recording in their office.

On the second point, however, the employees lost. First off, the employees were never actually filmed: The director of the facility activated the recording equipment only a few times, and only after the employees had left for the day. The Court found that the facility limited its intrusion in other ways, such as by directing the camera only at the computer workstation which had been used to access pornography, leaving the system in place only for a few weeks, and limiting the number of people who knew about the surveillance. The Court also found that the facility's reason for setting up the camera -- catching the person who was viewing pornography -- was a legitimate business concern.

Unlike many states, California has an explicit constitutional right to privacy, and is widely viewed as protective of privacy rights. Still, this decision doesn't seem that surprising, mostly because the women were never actually filmed. It's not hard to see why they were upset by the mere existence of the camera (apparently, one of the women often changed into her gym clothes in the office), but it was never actually used to record them. If there were any evidence that the women were taped, it might have undercut the facility's justification for recording and led to a different outcome.

According to news reports this morning, the Senate somehow found time -- while questioning Judge Sonia Sotomayor, working on health care legislation, and considering a controversial hate crimes provision to the Defense Authorization bill -- to drop the card check provision of the Employee Free Choice Act. The provision would have required the National Labor Relations Board to certify a union if the majority of employees in an appropriate unit have signed authorization cards. (Current law allows employers in this situation to either recognize the union or require an election.)

Employer advocates had claimed that card check would violate employee rights to a secret election, giving union leaders an opportunity to bully workers into providing union support. Union leaders counter that the election process gives employers too many opportunities to coerce workers into voting against the union, in part because employers have unfettered access to employees and can lobby them continuously in the days leading up to an election. 

Moderate Democrats apparently convinced the leadership to drop the card check provision. To assuage the concerns of union leaders, Senators are considering alternative provisions, including one that would shorten the time between when the signed authorization cards are presented and when the election is held. Currently, it can take months for an election to be held; the alternate provision would apparently shorten this period to five to ten days.

In the past few weeks, we've heard a lot about the unemployment rate. By the end of June, the jobless rate reached 9.5%, the highest it has been in more than 25 years. This data put the kibosh on all the talk from just a month earlier that things were looking up because the economy had lost fewer jobs than expected in May.

The unemployment rate counts only those who are able to work, available to work, looking for work, and not working at all. But what about all of those who are working less than they would like to be, whether because of losing one part-time job, being forced from full time to part time, or taking an hours cut? The New York Times crunched those numbers, and today told us just how high the jobless rate would be if these folks were included: 20% or higher -- that's one in every five workers -- in the states of California, Oregon, Rhode Island, South Carolina, and Michigan. The article said that the rate could reach 25% by the end of the summer in California. Ouch.

The problem of underemployment is highlighted by statistics showing that the aggregate weekly hours worked by private employees in this country has declined to the lowest level since 1964. In fact, most of us are working fewer hours per week now than we were a year ago, according to data from the Bureau of Labor Statistics.

One reason for this decline is that employers are cutting employee hours across the board -- in the form of temporary reductions or unpaid furloughs -- as a way to lower payroll costs and avoid layoffs. Most of the working stiffs I know have faced wage cuts, hour cuts, or both, and have accepted them gracefully, knowing that these measures are helping save jobs.

But employers beware: A recent spate of articles warns that there is currently some legal confusion -- and therefore, a stronger possibility of lawsuits -- over how furloughs can be implemented without running afoul of wage and hour laws. And that's assuming employees really aren't working during the hours for which they aren't being paid. Some experts even advise making sure employees can't work while on furlough by requiring them to leave their company-issued laptops, BlackBerrys, and phones at work. The web is sufficiently tangled that it makes sense for employers considering furloughs to consult first with an experienced employment lawyer.   

Yesterday, the Supreme Court issued one of the most anticipated decisions of this term, Ricci v. DeStefano. Ricci is a reverse discrimination case, in which 18 firefighters (17 white and one Hispanic) sued the city of New Haven for refusing to certify test results that would have put them in line for promotion. New Haven didn't certify the test results because white applicants scored so much higher than African American and Hispanic applicants that the city feared it would be sued for race discrimination by nonwhite candidates if it relied on those results. The Court's decision left the city (and by extension, all other employers) precisely midway between a rock and a hard place. And the opinions the court issued in the case reveal markedly different views on the purpose of laws prohibiting discrimination.

Here are the basic facts (the combined opinions run to 93 pages, so I'll try to cut to the chase): The city of New Haven gave oral and written tests to candidates for promotion to the positions of lieutenant and captain. The results were combined, weighted (the written test was worth 60% of an applicant's score and the oral test made up the remaining 40%), and used to rank candidates who passed the test. When a position was available, it had to be given to one of the top three candidates on the list. White candidates passed at a significantly higher rate (and with higher scores) than African American and Hispanic candidates, resulting in promotion lists that looked like this: All ten of the candidates who would have been considered for a promotion to available lieutenant positions were white, as were seven of the nine candidates for available captain positions.

Upon seeing these results, the city determined it had a potential problem: Nonwhite candidates might sue based on a disparate impact theory, claiming that although the test was facially neutral, it had the effect of discriminating based on race. After holding a series of hearings, the city ultimately didn't certify the test results. A group of firefighters who did well on the test sued, claiming that the city's refusal to rely on the test results was discriminatory.

The five-Justice majority ruled against the city and in favor of the mostly white test takers. Justice Kennedy, writing for the majority, found that the city's decision not to certify the test scores was itself based on race (the marked racial disparity in the test results, that is) and was therefore discriminatory. The majority also found that the city's fear of a disparate impact lawsuit if it certified the test results was not an adequate defense unless the city had a "strong basis in evidence" to believe the results were discriminatory.

This "strong basis" standard is new to Title VII cases, and has led to much commentary that asserts that the Court changed the rules in discrimination cases. The Court also left employers in a deep bind: Rely on test results that create a racial disparity and risk a disparate impact lawsuit; disregard those test results and risk a disparate treatment lawsuit. In this very case, African American firefighters have said they will sue for disparate impact if the city does as the Court says it must and certifies the test results.

Here are a few of my takeaways from this case:

Anyone still think we're "post-racial"? Reverse discrimination cases highlight a profound split in the way race -- and civil rights laws -- are viewed in this country. Those laws were passed to remedy particular types of discrimination, against groups that have been historically disadvantaged. As Justice Ginsberg's dissent pointed out, there is a long history of racial discrimination against African Americans and Hispanics in the field of firefighting, New Haven has been part of that unfortunate history, and this is part of the reason why Title VII was extended to cover municipal governments. Reverse discrimination allegations don't speak to this legacy: Instead, they claim that any consideration of race is wrong, period, as the majority opinion did in this case. No matter which side of this debate you come down on, it's clear that we have not come to any kind of consensus about what role -- if any -- race should play in our decision making.

Will this be on the test? One of the basic facts underlying this case is the continuing, seemingly intransigent racial disparity in written test scores. As some of those who testified before the city in this case pointed out, statistics still show that whites tend to score better on standardized written tests than African Americans and Hispanics, and we still don't really know why. In this case, New Haven clearly tried to come up with a test that wouldn't produce this result, and failed. So why are written tests still so common in so many fields? Is a written test really the best way to determine who will be the best lawyer, student, driver, firefighting supervisor? It's a question employers should certainly consider, especially now that the Supreme Court has said that there might be a lawsuit with your name on it whether or not you rely on the results of a test that reveals a racial disparity.