Archive for the ‘Employment’ Category
Protecting Against Employee Lawsuits
Tuesday, February 26th, 2013What is the best way to protect against employee lawsuits?
We recently received an inquiry about the best ways for businesses to protect against employee lawsuits. We’ve found that most employee lawsuits occur due to low morale, unaddressed personality conflicts, disparate productivity between employees and/or failure to give effective performance reviews. Of course, it is always important to have effective, well-drafted legal documents and policies that clearly delineate employee rights and obligations from the outset, which will help your business win lawsuits . However, the easiest way to protect your business from lawsuits is by preventing them in the first place. This means ensuring a good working environment, keeping employees happy, and giving employees recourse to deal with the issues that come up in the workplace, ideally through a dedicated and effective HR representative.
Employee Who Read and Printed Coworker’s Emails Found Not Guilty of Violating the Stored Communications Act
Thursday, July 5th, 2012
A New Jersey court recently held that a teacher who accessed and printed a co-worker’s personal email after the coworker left the computer without signing out of her account was not guilty of a crime.
By Alice Cheng
In Marcus v. Rogers, 2012 WL 2428046 (N.J.Super.A.D. June 28, 2012), a New Jersey court held that a defendant was not in violation of any laws when he snooped through the emails of a coworker who had forgotten to sign out of a shared computer.
The defendant, a teacher who was involved in a salary dispute with the school district he worked for, sat down to use a computer in the school’s computer room when he accidentally bumped the mouse of the computer next to him. The screen of the adjacent computer came alive to show the Yahoo! email inbox of a member of the education association he was in dispute with, which included two emails that clearly mentioned him. He then clicked on the emails, printed them out, and used them at a meeting with the education association as evidence that they had not bargained in good faith.
The individuals who were copied on the email conversations filed suit, claiming that the defendant had violated New Jersey’s version of the Stored Communications Act (N.J.S.A. 2A:156A-27), which reads in pertinent part:
A person is guilty . . . if he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or [an] electronic communication while that communication is in electronic storage.
The court found that the defendant did not “knowingly access [the facility] without authorization” as it was the previous user who had logged into the account. The judge then let the jury decide whether or not he “exceed[ed] an authorization to access that facility” when she failed to close her inbox and log out of her account. The jury found that did not, as he had “tacit authorization” to access the account. On appeal, the court affirmed.
While there is no clear answer to the question of whether snooping emails is illegal (as always, it depends), always remember to log out of public computers. Similarly, all mobile devices, such as smartphones or laptops, should be password protected. As for the email snoopers, be forewarned that snooping may nevertheless carry major consequences, if hacking or unauthorized access is found.
Social Media and the Workplace
Thursday, June 14th, 2012
No one wants to lose his or her job over a Facebook post. However, most employees also do not think twice before griping about a boss in a status update, or posting a picture from last Friday night on a coworker’s wall. While free speech has historically been protected in the United States, there can also be negative repercussions for exercising that right.
By Alice Cheng
Does it violate the law to fire someone over social media activity? Possibly, depending on whether the post is determined to be a “protected concerted activity” or not. Generally, the National Labor Relations Board (NLRB) has determined that Section 7 of the National Labor Relations Act permits “concerted activity,” which involves employees talking jointly about terms or conditions of employment (i.e., coworkers discussing a disliked supervisor on Facebook), and is permissible in order to protect employees against employer retaliation. Section 8(a)(1) is related and prohibits interfering with employees rights under Section 7.
For example, merely “venting” on a social network about a workplace condition is generally not enough to constitute protected concerted activity. Protected posts usually must involve, at a minimum, initiating or inducing coworkers to action (i.e., generating discussion among coworkers on Facebook).
Last month, the Acting General Counsel of the NLRB issued his third report on social media, including an analysis of seven recent social media cases, focusing on employers’ social media policies and rules. The report mentions that rules explicitly restricting Section 7 activity would be clearly unlawful. If the rule does not explicitly do so, it may still be unlawful under Section 8(a)(1) upon a showing that: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Although the cases within the report do not represent “the law,” they still provide helpful general guidance for employers seeking to design appropriate policies.
Avoid broad and ambiguous language. Policies which tell employees to not use “offensive” or “demeaning” comments should be backed with a specific example (such as offensive posts meant to discriminate based on race, sex, religion, or national origin) so that reasonable employers would not construe such language to cover protected activities. The Board has also long held that any rule requiring an employee to obtain the employer’s permission prior to engaging in protected activity is blatantly unlawful. Similarly, policies cannot require posts to be “completely accurate and not misleading” and should not limit discussions of work so that any discussion would be virtually impossible.
Rules requiring employees to maintain the confidentiality of trade secrets and private and confidential information are permissible, as employees have no protected right to discuss these matters. Generally speaking, employees have few rights to workplace privacy. However, there are limits on an employer’s ability to limit the use of the employer’s logos and trademarks. For example, an employer cannot prohibit the use of picket signs containing the logos or trademarks.
Savings clauses have no real effect. These clauses generally state that the policy will be administered in compliance with relevant laws. The NLRB has dismissed these as not curing any ambiguities in the overbroad policies.
It is also helpful for employers to place policies in context. The policies should acknowledge the usefulness and appeal of social media, but also remind employees that they are responsible for what they write, to know their audience, and to use their best judgment. The purpose of a social media policy should clearly be to avoid use that would adversely affect job performance or business interests (including harming clients or customers), rather than for the sake of surveillance and retaliation.
Employers should also stay updated on recent developments pertaining to the disclosure of social media passwords. Recently a number of states have considered or implemented bans on “shoulder surfing” or mandatory disclosure of private accounts.
Mobile Device Policies
Thursday, April 12th, 2012
Companies are increasingly allowing their employees to use their own personal mobile devices, such as laptops, tablets, and smartphones, to remotely access work resources.
This “bring your own device” trend can present certain security and privacy risks for companies, especially in regulated industries where different types of data require different levels of security. At the same time, companies need to also be mindful of employee privacy laws.
Most individuals now have personal mobile devices, and companies are finding it increasingly convenient to allow employees (and in certain situations, independent contractors) to access company data and networks through these personally owned devices. However, when an organization agrees to allow employees to use their own personal devices for company business, it loses control over the hardware and how it is used. This creates security and privacy risks with regards to the proprietary and confidential company information stored or accessible on those devices, which can lead to potential legal and liability risk. Similarly, when employees use the same device for both personal and professional use, determining the line between the two becomes difficult. If your company is considering letting its employees use their personal devices in the workplace, you should consult with an attorney to craft a policy that’s right for your business.
Entertainment Weekly Calls On OlenderFeldman For Comments
Tuesday, October 18th, 2011On Tuesday, October 18th, a 40-something year old actress filed a law suit against IMDb and Amazon for publishing her real name and age on IMDb’s website. Entertainment Weekly asked Michael J. Feldman, Esq., CIPP, to weigh in on the merits of the plaintiff’s privacy claim.
Feldman, a partner at OlenderFeldman who is also not involved in the IMDb suit, believes “the most pivotal issue in the case” will be the clarity of IMDb’s Privacy Policy and Subscriber Agreement. According to Feldman, IMDb’s “mistake here is that neither the Privacy Policy nor the Subscriber Agreement are clear as to the purpose for obtaining credit card information, and how that information will be used.” Without that confusion, Feldman speculated that IMDb could have avoided this lawsuit altogether. Still, he agreed that Doe “has numerous hurdles to overcome,” primarily that she “appears to confuse promises made in those agreements concerning security of information provided to IMDb and the privacy rights afforded to subscribers of the website.”
Making the case even less promising, Feldman thinks the $1 million price tag on Doe’s suit is unreasonable: “She will have an extremely difficult time proving damages under the facts alleged.” Added Feldman, a founding member of privacy and data protection consulting firm Acentris: “Even if IMDb is at fault, damages are limited to the total amount [she] paid” as an IMDbPro subscriber.
To read more on this intriguing matter, click here.