The Employer Handbook Blog

Over the weekend, Colorado Governor John Hickenlooper signed a bill making Colorado the eighth state to have a social media workplace privacy law. (The others are MD, IL, CA, MI, UT, NM, and AR). You can view a copy of the new CO law here. 

The new law places three restrictions on employers with respect to access of employee and applicant social media accounts:

1. No requests for social media user names and passwords;


2. No forced-friending or requiring that the employer be added as a contact; and


3. No requiring that privacy settings be changed.

There are a few carve-outs that allow employers to obtain full access to an employee or applicant's social-media account. One is if an employer reasonably believes that an employee has download proprietary information. Another carve-out applies to satisfy "applicable securities or financial law or regulatory requirements." There is nothing in the new law that expressly permits an employer to get this information to investigate purported violations of non-harassment policies. Although, I suppose an employer could rely upon the "regulatory" requirements exception.

Next up for a new social media workplace privacy law appears to be Washington, where a bill now sits on the Governor's desk for signature.

By now, the whole teacher blasting her job on Facebook is like death and taxes to me. I can't a go a week or so without reading about a teacher posting photos of duct-taped students or a teacher wishing that her "devils spawn" students would drown in the ocean.

Well, here's a new one. 

Last week, a court ordered the NY school to re-hire the teacher it had fired for wanting to send her hellish kids to their watery graves.

Yeah, I know. Shocking!

The Court reasoned (here) that an otherwise good teacher had a momentary lapse of judgment when she expressed her frustration to a limited Facebook audience, and immediately expressed remorse:

Although the comments were clearly inappropriate, it is apparent that petitioner's purpose was to vent her frustration only to her online friends after a difficult day with her own students. None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large, and petitioner deleted the comments three days later....Under the circumstances, which includes the lack of a prior disciplinary history during petitioner's 15-year career, and her expression that she would never do something like this again, Supreme Court properly found the penalty of termination to be shocking to one's sense of fairness.

You know what is shocking to me? A teacher wishing that her students would drown in the ocean.

And the whole rationale that the teacher's Facebook friends didn't include parents and students? Really? Do I have insider information? Is this blog post a "The Employer Handbook exclusive"? No, that's the thing about social media. Whether you post for a small audience or make your comments publicly available, once you hit send, you should not expect that what you say online will remain private. So, although this teacher intended only that certain Facebook friends would read her comments, they ended up going very public. So, her intent shouldn't matter.

The court got this wrong.

I don't know much about Arkansas. My knowledge consists of Gennifer Flowers, Wal-Mart, and this handy-dandy iPhone app for harvesting deer. I also hear that the official state beverage is milk. 

How about that?

But now I know one more thing: Arkansas has a new social media privacy law, which prohibits an employer from requiring or requesting that a current or prospective employee do any of the following:

1. disclose his/her username or password for a social media account,


2. add a co-worker "to the list or contacts associated" with the account,


3. change his/her account privacy settings

While I do not like these laws -- they are unnecessary, the vast majority of employers aren't as stupid as passage of these laws would lead some to believe -- the Arkansas law does carve-out some exceptions, which is nice in light of public criticism from Wall Street about how these laws may inadvertently promote Ponzi schemes and fraud. It also unties HR's hands, allowing it to conduct effective investigations should the need to access social media accounts arise. The Arkansas law:

1. prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or


2. allow employer to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies.

Robert Mariotti was the vice-president and secretary of the company his father founded. Not only was he a corporate officer, but Mariotti also served as a member of the board of directors, and was a shareholder who could only be fired for cause.

In 1995, Mariotti had a spiritual awakening, which he claims resulted in a resulted in "a systematic pattern of antagonism" toward him in the form of "negative, hostile and/or humiliating statements" about him and his religious affiliation. Mariotti claimed that this behavior ramped up for over a decade and, ultimately, resulted in his termination. Thereafter, he sued his former employer for religious discrimination. The company moved to dismiss the claim on the basis that a shareholder-director-officer is not an "employee" under Title VII of the Civil Rights Act of 1964 and, thus, has no standing to assert a claim for religious discrimination.

What happened you say? Well, even if you read the lede, click through for full analysis...

Continue reading "Third Circuit says VIPs cannot sue for Title VII discrimination" »

Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:

Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.

Perlmutter's amendment was voted down 224-189.

Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.

Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.

(h/t @MarkJChumley)

Today we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs

(Want to guest blog at The Employer Handbook? Email me).

* * *

Continue reading "GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace" »

Yesterday, I discussed some pending federal legislation that would expand the FMLA to cover part-time employees. Now, I hear that another bill introduced in the U.S. House of Representatives, known as the Equal Employment for All Act, would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions. 

A copy of the Act and more details on employer credit checks after the jump...

* * *

Continue reading "New federal bill would ban credit checks on employees and applicants" »

In 2011, New Jersey passed a law banning discrimination against the unemployed. Will PA follow suit in 2013?

The ball is rolling....

The PA House introduced its own unemployment-discrimination bill on January 22, 2013, and you can view a copy of it here.

Cliff's notes version:

1. Employers CAN'T use one's unemployment as a negative factor when considering candidates for job openings.


2. However, employers CAN consider an individual's employment history or factual and objective reasons underlying an individual's unemployment status in assessing an individual's ability to perform the vacant job.


3. Employers CAN'T advertise anything resembling "unemployed need not apply."


4. However, employers CAN assess whether an individual's employment in a similar or related job for a period of time reasonably proximate to the consideration of the individual for employment is consistent with industry practice and necessary to successful performance of the vacant job
   

Employers that violate the law face fines and potential civil litigation. The statute of limitations is 2 years and taking adverse action against an individual within 90 days of the person's exercise of rights protected under the Act raises a rebuttable presumption of retaliation.

From my perspective, Glassdoor.com's Top 25 Oddball Interview Questions For 2013 is one lobbed softball after another. Then again, I'm the guy who, as the interviewer, used to ask law students to name their favorite Supreme Court Justice of all-time.

{Totally a trick question. The only acceptable response is, "Judge Elihu Smails." Never happened. Coincidentally, my tenure on the Hiring Committee was brief.}

But, before we call it a day, I'm sure you're all dying to know how I would have answered four of the oddball questions:

"A penguin walks through that door right now wearing a sombrero. What does he say and why is he here?"
- "I'm here for the drug test. So, where do I--- Hey! Quit staring at my junk!"

"On a scale from one to ten, rate me as an interviewer."
- Tool, err, two.

"What songs best describes your work ethic?"
- Uh, duh! No, wait...

"If you could be anyone else, who would it be?"
- Any one of my awesome blog readers. 

(Am I right? Or am I right?)

Of course she does.

What does the Complaint say? And what can employers take away from it? Find out after the jump...

Continue reading "School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?" »

Same s**t; different year.

In 2010, an Ohio temp agency paid $650K as part of a Consent Agreement with the EEOC to settle claims that it had used code words in considering and assigning (or declining) job applicants. The code include words such as "chocolate cupcake" for young African American women, "hockey player" for young white males, "figure skater" for white females, "basketball player" for black males, and "small hands" for women in general.

Fast forward...

Cameron Langford at Courthouse News reports (here) that a Human Resources Manager just sued her former employer, a Texas temp agency, for what she claims was a wrongful discharge. Specifically, she alleges that she was fired after opposing the use of code words to fill placements. According to the article, the code words used included:

• "blue eyes" and "no sunscreen" = African-American
• "work all day" = Hispanic
• "Heavy lifting" = men (i.e., not women)
• "Energetic" = young (i.e., not old)

Eek!

It's no wonder that the EEOC will emphasize addressing discrimination in hiring over the next several years. Assuming that your business isn't using code words -- because you're not total scumbags -- now is the time to review other hiring criteria to make sure they do not disparately impact a particular protected class and are otherwise truly business-related.

Or, you can just wait until the EEOC comes knocking at your door. Your choice.

I did one of these posts a few weeks ago, where I wrote about employees getting sacked for a Facebook post and then offered you -- the employment lawyers and HR pros -- the opportunity to second-guess the termination decision. 

Giving y'all the chance to weigh in nearly crashed my servers. So, let's try it again with a new set of facts. But, be easy on my hardware.

Rhonda Lee is a meteorologist for KTBS-TV. Oh, did I say "is"? I meant "was". She was fired based on two exchanges that occurred on the station's Facebook page:

[Click on the first one if you have difficulty reading it; it links to a larger version]

KTBS News Director Randy Bain released a statement that said, "If harsh viewer comments are posted on the station's official website, there is a specific procedure to follow. Ms. Rhonda Lee was let go for repeatedly violating that procedure after being warned multiple times of the consequences if her behavior continued."

Now that you've read the posts, the policy, and the company's position, put on your HR/lawyer hats, and go back in time to before KTBS-TV decided to terminate Ms. Lee. Tell me in the comments below how you would advise the station to proceed.

Good news for HR professionals!

That, according to this recent poll from CareerBuilder and EMSI, ranking the best jobs for 2013 requiring a bachelor's degree.

Coming in at #5 was "Human Resources, Training and Labor Relations Specialists." The numbers reflect that the profession has added 22,773 jobs since 2010, which represents 5% growth. Matt Ferguson, CEO of CareerBuilder, believes that the study results indicate that "[w]here the U.S. will produce the most jobs in 2013 is likely to follow growth patterns of the last few years."

So, if you are a transitioning human resources professional, hold your head up, and keep plugging away. Hopefully, blue skies lie ahead.

With the National Hockey League season in jeopardy, I imagine that Canadians are a fairly ornery bunch these days.

Even further north, hockey fans too are in turmoil. Reports from the North Pole have Mrs. Claus moping around. Morale amongst Santa's helpers is at an all-time low, causing toy production to drop 20%. And the elf of the shelf just flipped me the bird.

But it appears that no one is taking it harder than jolly old Saint Nick. 

According to this report from Shawn Jeffords at the Toronto Sun, last week, NHL Commissioner Gary Bettman dressed up as a mall Santa at a Toronto Christmas Market told a three-year-old waiting in line to sit on his lap that the Toronto Maple Leafs "suck."

The boy's mother than took to Facebook and put Kris Kringle on full blast:

Then he said, 'Oh, you're wearing a Toronto Maple Leafs tuque, you shouldn't be wearing that, they suck.' At that point, I took my son and told him we should go, Santa isn't being very good today.

The event organizers apologized, via Facebook, and then promptly terminated Santa's employment. 

But, folks, let me tell you. Santa is resilient. He dusted off his resumé, checked the online job boards, and quickly found new employment at a mall in Portland, Maine.

That is until, as The Daily Dot (via Mashable.com) reports here, a mom complained on the mall's Facebook page after Santa allegedly refused to let her six-year-old daughter sit on his lap because she didn't purchase a picture package. Here's a video of mom and daughter sharing this scrooge story. Now, Santa is once again out of a job.

And, rumor has it, he may be filing a national-origin-discrimination Charge with the EEOC.

Welcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"

[Editor's Note: I'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that's the idea. More great posts and imaginative casting decisions, after the jump...

* * *

Continue reading "Employment Law Blog Carnival: Hollywood Casting Call Edition" »