Can we all agree that requiring Facebook passwords is a bad idea, and move on?

A lot of ink has been recently spilled in both the popular media and the blawgosphere over the apparent trend of employers requiring job applicants to turn over their Facebook passwords as part of the hiring process. The coverage has been so thick and the outrage so great that United States Senators are calling for action to outlaw this supposed practice, and Facebook officially weighed in, via a post on its blog by its Chief Privacy Officer:

If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends…. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. We don’t think employers should be asking prospective employees to provide their passwords….

If you believe all of this coverage, you would think that this practice is rampant. In reality, I would be surprise if one-percent of one-percent of all employers have even considered asking a job applicant for access to his or her Facebook account, let alone carried through on the thought by making it a hiring requirement. Simply, this is not a problem that needs fixing.

Moreover, this supposed problem isn’t even new. I covered it almost three years ago, when the city of Bozeman, Montana, made headlines by implementing, and quickly rescinding, just such a requirement. It was bad HR policy then, and it’s bad HR policy now. And, the risks of such a policy are well-documented:

1. EEO Risks: Mining Facebook and other social sites for information on job applicants can reveal a wealth of protected EEO information (age, religion, protected medical information, genetic information). The risk is great enough when the information is publicly available; it is exponentially heightened when you gain unfettered access to information shielded by a password. For some thoughts on best practices on conducting Internet searches on applicants or employees, click here. I’ve also expansively covered this topic in my book, Think Before You Click….

2. Stored Communications Act Risks: At least one court has concluded that an employer who requires employees to disclose passwords to social media sites violates the federal Stored Communications Act, which extends liability to parties that exceed authorization to access electronic communications. While this area of the law might be unsettled, testing it could prove a costly mistake.

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work?

Social media provides a lot of benefits to employers. It opens channels of communication between employees in and out of the workplace. And, when used smartly, it enables employers to learn more about potential employees than ever before. You can learn if an employee has good communication skills, is a good cultural fit, or trashed a former employer. But, this tool has to be used smartly to avoid legal risks. Requiring passwords is not smart.

Social media is still new, and the rules and regulations that govern it are still evolving. The government is looking for opportunities to regulate social media. If a small minority of business continues pursuing this poor HR practice, Congress will continue pursuing legislative and solutions and calling for regulatory action. Do not provide the government the opportunity. Can we all just agree that requiring Facebook passwords is a bad idea, and move on?

WIRTW #219 (the “madness” edition)

Workforce Management is celebrating in 90th anniversary. To commemorate this event (and to cleverly tie-in to March’s favorite non-green event), the magazine is running its own bracket challenge. It is asking its readers to vote on two different brackets — The Pop Culture Bracket (which features such intriguing first round match-ups at Seinfeld vs. Taxi and Murphy Brown vs. Monsters, Inc.) and the Workforce Impact Bracket (which pits the FMLA against the FLSA, Gloria Steinem against Background Checks, and Social Media against ERISA, among others). Voting is being done in stages every two weeks, with round 1 open until April 1.

For the curious:

• In the Pop Culture Bracket, my final four vies The Office vs. Network and The Mary Tyler Moore Show vs. Philadelphia, with The Mary Tyler Moore Show taking down The Office in the finals.
• My Workforce Impact Bracket advances The Internet to face Title VII, and AFL-CIO Teamsters to face Sexual Harassment, with The Internet edging Sexual Harassment in the finals.

How do your brackets play out? Let me know in the comments, or on Twitter @jonhyman.

Here’s the rest of what I read this week:

Discrimination

• Distinguishing state & federal disability-accommodation claims — from Eric Meyer’s The Employer Handbook Blog
• Iowa sued on charge of subconscious bias — from Walter Olson’s Overlawyered
• Why You Need a Retaliation Prevention Policy — from Smart HR Manager
• Why Companies Need to Care about Caregivers: The EEOC's Focus on Caregiver Discrimination — from Employer Defense Law Blog
• Juggling Act: When Work and Special-Needs Parenting Collide — from Diversity Insight
• Title VII protects both current and former employees from discriminatory adverse employment actions — from Employment Law Matters
• Transgender Employees Are Protected from Discrimination — from Employment Law Worldview
• Do you have a gender-based pay gap? If so, you'll have some explaining to do — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• Social Media, Social Media, Social Media — from Dan Schwartz’s Connecticut Employment Law Blog
• Top Ten Social Media Tips for Businesses — from Meaghan Edelstein at Social Axcess
• Survey Shows 48% of Employers Conduct Social Media Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Why Would You Want An Applicant’s Facebook Password? — from Fistful of Talent
• Quote of the Day: Deletion Is Futile — from Kashmir Hill’s The Not-So Private Parts
• 3d Circuit Weighs in on Recovering E-Discovery Costs — from Phil Miles’s Lawffice Space
• Socializing HR — from XpertHR

HR & Employee Relations

• The Real Leadership Lessons of Steve Jobs — from Harvard Business Review
• Information Privacy 3: What Are Your Privacy Rights? — from Heather Bussing at the HR Examiner
• Kids These Days: Younger Workers Don’t Care About Confidentiality — from Workplace Diva
• Workplace Drug Testing Turning Up More Cocaine & Amphetamine Positives — from George’s Employment Blawg
• Tips for an Employee Handbook Tune-Up — from Minnesota Employer
• When Should an Employer Investigate? (Part 1) — from Workplace Investigations Blog
• What Should I Know about Terminations? — from Texas Employer Handbook
• Insensitivity & Inflammatory Language at Work — from Cost of Work

Wage & Hour

• Unpaid Internships: No Panacea — from Todd Stanton’s Intown Employer
• Time Off Requests for Exempt and Non-Exempt Employee — from Blogging4Jobs
• District Judge Finds Therapists to be Exempt Professionals — from Wage and Hour Law Update

Labor Relations

• Fired for Wearing Orange — from Workplace Prof Blog
• Workers Fired for Wearing Orange — from San Antonio Employment Law Blog
• Duty To Provide Employee Witness Names And Pro-Union Supervisory Election Interference On This Week’s NLRA Fare — from Labor Relations Update

Until next week…

If the employee doesn’t certify, you need not comply (with FMLA)

In Poling v. Core Molding Technologies (S.D. Ohio 2/9/12), the plaintiff, who suffered from Reflex Sympathetic Dystrophy Syndrome, claimed that his employer interfered with his FMLA rights when it terminated him for excessive absences. Poling’s problem, however, was that he never adequately completed the FMLA medical certification forms his employer had requested. That omission was fatal to his claim. (It probably didn’t help Poling’s cause that he called off from his Lake Erie vacation home.)

If an employee seeks FMLA leave to care for his or her own serious health condition, or that of a covered family member, the statute permits an employer to require a certification by a health care provider to support the leave. At the time the employer requests certification, it must advise the employee of the anticipated consequences of a failure to provide adequate certification. An employee has 15 calendar days to return the requested certification. If the employee fails to provide any certification, the employer may deny the taking of FMLA leave. If an employee returns an incomplete or insufficient certification, the employer must provide the employee seven calendar days to cure the deficiency. The employee’s failure to timely cure also entitles the employer to deny the FMLA leave.

The employer in Poling:

• Requested certification in writing the day after Poling’s absence.
• Told Poling in writing that “[a]ny absences not qualifying as FMLA will be subject to and recorded according to the attendance policy."
• Gave Poling 15 days to return the certification.
• Provided Poling a second chance when he missed the first 15-day deadline.
• Offered an additional seven days for Poling to cure his late-submitted, deficient certification.

It was only after Poling missed the deadline to cure his certification that the employer finally had enough and terminated him (he had already exhausted his paid and unpaid days off).

There is no doubt that the FMLA is a pain for employers to administer. It is not, however, a toothless statute for employers. The FMLA offers employer plenty of opportunities to catch a malingering employee, provided that you know, understand, and follow its maze of rules.

When drafting harassment policies, don’t forget about disabilities

I can’t tell you how many harassment policies I review (and rewrite) that are simply called, “Sexual Harassment Policy.” Most harassment complaints are about sexual harassment. But, the law just doesn’t forbid sexual harassment; it forbids harassment based on any category protected by the EEO laws. Thus, harassment based on race, religion, national origin, military status, age, disability, or any other protected class is just as illegal as harassment based on sex. Your harassment policy must account for them all. For example, last week the EEOC announced that it settled a disability harassment case for $70,000. In that case, the employee, who suffered from a major depression and social anxiety disorder, claimed that he was harassed because of his disability. Avoid these issues by reviewing and, if necessary, updating your harassment policy to account for all types of unlawful harassment.

You should pay attention to this post if you have unpaid interns

According to Law.com, wage and hour litigation is big, and getting bigger. One area that has been poised for a take-off for a couple of years is unpaid internships. Three recent filings illustrate the dangers of using unpaid interns in your business:

• A former unpaid intern for the “Charlie Rose” show has filed a lawsuit against the host and his production company. According to Steven Greenhouse at the New York Times Media Decoder Blog, the former intern claims that she was not paid at for the 25 hours a week she worked in the summer of 2007. The lawsuit seeks a class action on behalf of all unpaid interns who have worked for the show since March 2006.
• A former unpaid intern for the fashion magazine Harper’s Bazaar filed a similar lawsuit, claiming she worked full-time without any pay. Steven Greenhouse at the New York Times Media Decoder Blog quotes the lawyer who filed the lawsuit, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.”
• Last year, two interns who worked on the film Black Swan sued Fox Searchlight Pictures making similar claims.

The New York Times’s resident ethicist, Ariel Kaminer, calls this issue “the internship rip-off.”

Two years ago, I wrote how the Department of Labor was targeting employers who use the services of unpaid interns. As these examples show, workers (and their lawyers) have caught up.

In response to this spate of lawsuits, publishing giant Condé Naste has revised its guidelines for the use of unpaid interns. From The Atlantic, Condé Naste’s interns:

• Cannot stay at the company for more than one semester per calendar year.
• Must complete an HR orientation about where to report mistreatment or unreasonably long hours.
• Cannot work past 7 p.m.
• Must receive college credit.
• Must be assigned an official mentor.
• No personal errands.
• Will be paid stipends of $550 per semester.

These procedures might not be right for your organization. But, they highlight that you need to be thinking about these issues if you are a private sector, for-profit entity using, or considering using, interns. The rules haven’t changed; only they are now more widely known and are being enforced.

The best time to settle a case

I’ve long believed that the best time to settle a case is while summary judgment is pending. It’s when both sides have the most risk. The employer has the risk of a jury trial if the court denies the motion, and the employee has the risk of walking away with nothing if the court grants the motion.

Case in point—Webb v. Kentucky St. Univ. (6th Cir. 3/15/12) [pdf]. In Webb, the court granted the employer’s summary judgment motion while the parties were actively mediating the case. On appeal, the plaintiff argued that court abused its discretion in granting the motion while mediation was ongoing, which, in the plaintiff’s words, “makes a mockery of the mediation process.” The court of appeals disagreed:

Where, as here, the district court properly granted the summary judgment motion, the mediation process is not “sabotaged.” Instead, the district court does not waste judicial resources by preparing for trial where no genuine issue of material fact exists and the opposing party is clearly entitled to judgment as a matter of law.

The next time you receive settlement resistance from a plaintiff while a motion for summary judgment pends, you might want to forward a copy of Webb. Maybe it will grease the skids to a resolution.

WIRTW #217 (the “Statler and Waldorf” edition)

News moves fast. In today’s 140 character news cycle, a story has legs if it’s covered for more than a day. That we are on day two of the muppet manifesto tells you that this story resonates. Here’s some additional employment and HR related (and not so employment and HR related) coverage of Greg Smith’s noisy resignation from Goldman Sachs:

• Why I am leaving the Empire, by Darth Vader — from the daily mash
• Atomic Resignation Letters and the Disconnect Between Corporate Values and Performance… — from The HR Capitalist, Kris Dunn
• Disgruntled Goldman executive inspires copycats — from CareerDiva Eve Tahmincioglu
• Burning Bridges: The Perils of Ripping Your Employer Heading Out the Door — from TLNT
• Psychopaths on Wall Street — from Harvard Business Review
• Workplace experts weigh in on commentary by departing Goldman Sachs executive Greg Smith — from Corilyn Shropshire at the Chicago Tribune
• Bronze Medal Ping Pong GOD Bravely Resigns From Goldman Sachs — from Deadspin

Here’s the rest of what I read this week:

Discrimination

• Flyer claims Chick-Fil-A asks potential hires about sexual history — from Eric Meyer’s The Employer Handbook Blog
• Believe It, Baby. Subjective Belief of Discrimination Ain’t Enough — from Molly DiBianca’s Delaware Employment Law Blog
• Oy Vay! Jewish Nursing Home Owns Up to Denying Religious Accommodation — from Joe’s HR and Benefits Blog
• What if you replace an older worker with another older worker? — from HR Cafe
• Fourth Circuit Emphasizes Necessity of Complaining about Sexual Harassment — from Maryland Employment Law Developments
• Paula Deen (insert cooking pun) Sexual Harassment Lawsuit — from Phil Miles’s Lawffice Space
• ESPN’s Stance on Discriminatory Remarks: Hitting the nail on the head, or a lack of consistency? — from The L•E•Jer

Social Media & Workplace Technology

• Don't be a twerp when you tweet — from Robin Shea’s Employment and Labor Insider
• If you’re a worker, you’re being Googled — from MarketWatch
• What Should You Do If Your Employer Asks For Your Facebook Password? — from ReadWriteWeb
• Infographic: How to train employees to handle social media — from Ragan
• Solutions to Mitigating Risk of Corporate Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• This Is Everything You Need To Know About Pinterest (Infographic) — from TechCrunch
• Pinterest for Social Recruiting — from Kara Mignanelli at Social Axcess
• When it comes to Social Media and Recruiting…Don’t Overthink It … Just Do It! — from Fistful of Talent

HR & Employee Relations

• Does It Matter That American Workers Get So Little “Official” Time Off? — from TLNT
• The Magic of Doing One Thing at a Time — from Harvard Business Review
• 17 Ways to Show Your Employees Appreciation — from Workplace Insights
• Mark Twain on employment reference law — from Walter Olson’s Overlawyered
• Turning a Termination into a Training Opportunity — from Dawn Lomer at i-Sight Investigation Software Blog
• Top Background Screening Survey: Criminal Records or Qualifications? — from Nick Fishman’s employeescreenIQ Blog
• “Can taking time off without permission get you fired?” — from Sklover Working Wisdom

Wage & Hour

• Are Homeless Hotspots Entitled To Minimum Wage? — from Wage & Hour Insights
• Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications? — from Jason Shinn’s Michigan Employment Law Advisor
• Are You an Employee or Independent Contractor? — from Legal Tastings – A Wine Law Blog

Labor Relations

• Breathe Deeply Before You Read: ALJ Finds At-Will Statement Violates NLRA — from Jonathan Segal
• Thinking About A Different World Under the NLRA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Waiting for the Dust To Settle on New NLRB Posting Requirement — from Dan Schwartz’s Connecticut Employment Law Blog

Until next week…