Maryland becomes 1st state to ban requiring employees’ social media passwords

The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

• from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
• from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
• from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

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? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

• EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.

Get rid of at-will employment? Give me a break!

On Donna Ballman’s blog, Screw You Guys, I’m Going Home, she argues for a radical change to at-will employment. She believes that unemployment hearing officers should have the power to reinstate, with back pay, anyone fired without just cause:

Most employers can fire you for any reason or no reason at all…. Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause…. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

I applaud Donna’s bravado in arguing for a radical solution to a problem she perceives. But, is it really a problem at all? In reality, few employers act on whims of fancy. We can debate what qualifies as “just cause,” but the fact is that few employer fire good employees. It is not a good business decision for a company to let a good worker go. Good employees keep their jobs, marginal employees are at risk, and bad employees are fired. And, when an undeserving employee is fired, there are myriad employment laws to protect their rights from an unjust dismissal.

Moreover, placing into the hands of unemployment hearing officers the power to reinstate (with back pay) would cripple workforce mobility and hiring. If employers face a risk of having overturned all but the clearest of terminations, they will be reluctant to fire all but worst of employees. Businesses will be stuck with the middling and marginal, harming their ability to employ the best and the brightest. Donna’s scheme would therefore result in fewer job opening, which, in turn, would irreparably damage hiring and create longer periods of unemployment for those searching for work.

Finally, at least in Ohio, the premise that individual taxpayers foot the bill for employers’ whims is faulty. In Ohio, unemployment is funded by a tax on employers. Employers’ tax rates go up and down based on the number of claims paid (like any other insurance scheme). For 2012, that rate can be as high as 9.1%. So, it is in employers’ best interests not to fire on a whim, because the resulting unemployment claim will raise their contribution rate, resulting in a higher tax. In other words, bad firing decisions hit an employer where it hurts, the bottom line. 

Donna, if you’re still convinced that your idea makes sense, I’ll make you a deal. When you agree that we need to adopt my Employer’s Bill of Rights, I’ll agree that at-will employment is a dinosaur (and, watch out for the flying pigs).

WIRTW #220 (the “social assassin” edition)

Passover starts at sundown tonight. I have nothing employment-related for this tidbit of information (don’t treat your workers like the pharaoh treated his, or you will likely face the 11th plague, litigation?). But, it does give me an excuse to play the following, which also happens to be one of the few SFW clips in the eight-seasons of Curb Your Enthusiasm.

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

Discrimination

• What Baggage Does The Employment Attorney Carry? — from Dan Schwartz’s Connecticut Employment Law Blog
• You may know where the bodies are buried, but that doesn’t mean you can sue your employer for retaliation — from Robin Shea’s Employment and Labor Insider
• Comments to OIRA on forthcoming EEOC Background Check Guidance — from the U.S. Chamber of Commerce
• Intellectual Disability under the ADAAA: A Widening Chasm of Problems? — from Michael Haberman’s Omega HR Solutions
• We Know You Don’t Mean to Discriminate - But Are You Biased Underneath the Hood? — from The HR Capitalist. Kris Dunn
• Employment discrimination by the numbers: Foreign Edition — from Eric Meyer’s The Employer Handbook Blog
• Pending Legislation Employers Can’t Afford to Ignore — from Stephanie Thomas’s The Proactive Employer Blog
• Senators Propose Amendments To ADEA — from Stoel Rives World of Employment
• Statistical disparities don’t necessarily indicate discrimination — from The Tennessean

Social Media & Workplace Technology

• Your Future Employer Is Watching You Online. You Should Be, Too. — from Michael Fertik at the Harvard Business Review
• Employees Need To Take Control Of Their Online Identities — from Anthony Zaller’s California Employment Law Report
• Employers Who Demand Facebook Passwords. Oy Vey. — from Molly DiBianca’s Delaware Employment Law Blog
• Teacher fired for refusing to hand over Facebook password — from Friending Facebook Blog
• Michigan Proposes Legislation to Ban Employers from Accessing Employees’ Social Media Sites — from Jason Shinn’s Michigan Employment Law Advisor
• The Facebook access controversy comes to Michigan — from John Holmquist’s Michigan Employment Law Connection
• Access To Social Media Accounts In The Hiring Process And Employer Ownership Of Trade Secrets Or Confidential Information Contained In Social Media Accounts: Legislation On Horizon? — from Trading Secrets
• Employee Photos on the Company’s Social Media Page? — from Nolo’s Employment Law Blog
• Social Media Ethics: Why You Should Have a Policy — from Social Media Today

HR & Employee Relations

• Should You Fire The Slugs? — from Stephanie Thomas at Compensation Cafe
• Did Your DUI Lawyer Draft Your Employee Handbook? — from TLNT
• Olbermann Employment Law-Palooza — from Phil Miles’s Lawffice Space
• Quoting scripture at work — from Evil HR Lady, Suzanne Lucas
• “Bullying” Is Becoming Part of the Zeitgeist — from Michael Fox’s Jottings By An Employer’s Lawyer
• Pet insurance as a benefit — from HR idiot
• Creating a Conflict-Conscious Workplace — from intown employer
• If the Facebook COO can leave the office at 5:30, maybe you can too — from Amy Joyce’s On Parenting (at washingtonpost.com)
• How to reduce your legal spend on employment issues — from Smart Business

Wage & Hour

• “Employers grow reluctant to offer internships following complaints” — from Walter Olson’s Overlawyered
• Intern or Employee? Unpaid Internships May End Up Costing Employers — from LE Blog
• Argument preview: The “outside salesman” exception to the FLSA’s overtime-pay requirement — from SCOTUSblog
• Will breastfeeding support die with Obamacare? — from Eve Tahmincioglu’s CareerDiva
• Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave? from Jeff Nowak’s FMLA Insights

Until next week (also, remarkably, SFW):

Disturbing study about the (mis)use of employers’ confidential information

Here’s the good news: According to a recent survey conducted by FileTrek, 79% of Americans believe that removing confidential files from the office is grounds for termination. Here’s the bad news: 90% think that employees do it anyway. What is the most popular method of removing information? Exporting it to a USB drive.

Some more scary numbers? How about the answers to the question, “When is it acceptable to remove confidential company information out of the office?”

• 48% — When boss says it’s okay
• 32% — To finish a late night project from home
• 30% — To work over the weekend or while on vacation
• 16% — When the confidential information about themselves
• 2% — When it can be brought back to the office before the boss knows it was gone
• 2% — To show something to family or friends who promise to keep it confidential
• 40% — Never

According to Dale Quayle, CEO of FileTrek, “Today’s workforce believes information is an asset to be shared…. It’s critical for today’s management teams to be more IP aware to ensure data security.”

Where does this IP awareness start? With a clear set of policies and agreements that prioritize the confidentiality of your information and data. You need to set the expectation in your organization that you take confidentiality seriously, and those that do not should not expect to remain employed. You also need to be prepared to enforce that confidentiality with litigation when necessary. Otherwise, the agreements may not be worth the paper on which they are printed.

[Hat tip: Huffington Post]

NLRB Administrative Law Judge splits the baby in ruling on a social media policy

Anytime any piece of the NLRB takes action with regard to an employer’s social media policy, it’s newsworthy (even if you’re getting tired of reading about it). Such is the case with G4S Secure Solutions (USA) Inc. (3/29/12) [pdf], decided by an administrative law judge.

At issue in G4S Secure Solutions were the following two provisions of the employer’s social media policy:

• Do not comment on work-related legal matters without express permission of the Legal Department.
• Photographs, images and videos of G4S employees in uniform, (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.

The ALJ agreed with the NLRB’s General Counsel that the “no comment on work-related legal matters” provision was overly restrictive of employees’ rights to engage in protected concerted activity:

I find the rule is reasonably interpreted to prevent employees from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action or complaints employees may have filed…. The rule at issue here would reasonably be read to prohibit two employees … from sending messages to each other about their issues at work … via a social networking site. Likewise, it would reasonably prohibit a discussion group among concerned employees on a social networking site.

Conversely, however, the ALJ concluded that the “no photograph” provision was lawful:

Respondent clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites. Starting with the worksite, Respondent does have patient privacy concerns for the EMT services it provides. Moreover, Respondent serves a variety of clients on a national basis. The various businesses and government agencies where its employees work can be presumed to have their own rules centered on privacy and legal concerns. I find the rule at issue here is reasonably construed as protecting Respondent’s clients. To read it as a prohibition on Section 7 activity strikes me a stretch, particularly considering the rule does not ban photographs but merely prohibits employees from posting them on social networking sites.

I’ll leave you with two observations:

1. The NLRB’s Acting General Counsel does not have the last word on these issues. Many (including me) were up in arms when the NLRB’s Office of General Counsel issued its latest report on social media in the workplace, which opined that almost all workplace policies that could potentially regulate social media violate the NLRA. G4S Secure Solutions disagreed with the General Counsel, and concluded that an employer’s reasonable and legitimate reason to regulate employees’ use of social media trumps a potential and tangential effect on employees’ protected, concerted activity.

2. These issues remain very unsettled. One opinion from an ALJ is nowhere close to a conclusive proclamation of the law. This case will head to Washington for consideration by the NLRB, which could reach an opposite conclusion on the “no photographs” policy. Ultimately, the federal circuit courts, and the Supreme Court, will have to weigh-in on these issues. But, that guidance is years away. Until then, move very cautiously, and only with the advice of counsel well-versed on these issues, if trying to regulate social media in your workplace.

Dealing drugs disqualifies an employee from collecting workers’ comp

Ever heard of the phrase “sustained remunerative employment?” In the world of workers’ compensation, it means that if you are earning money, or capable of earning money, you cannot be eligible for an award of PTD (permanent total disability) for a workplace injury. Seems like common sense, right? What, if, however, the evidence of sustained remunerative employment is illegal activity? Last week, the Ohio Supreme Court weighed-in with an answer.

Donald McNea was a police officer the city of Parma. In 2004, the state awarded him PTD compensation for alleged on-the-job injuries. As it turns out, at the same time McNea was receiving PTD payments, he was being investigated for the illegal sale of narcotics. Ultimately, he was arrested, indicted, pleaded guilty, and sentenced to three years in prison. The Industrial Commission terminated McNea’s PTD benefits as of the date of his incarceration. It also concluded that McNea’s side business selling narcotics was “sustained remunerative employment,” and as a result declared that all compensation paid after his first confirmed drug sale constituted an overpayment.

McNea appealed the determination of the overpayment all the way to the Ohio Supreme Court, where—in State ex rel. McNea v. Industrial Commission (3/29/12) [pdf]—common sense prevailed:

In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005. The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.

It is unlikely that you will ever face the situation of having to seek disqualification of an employee from collecting workers’ comp benefits because he’s dealing drugs. Nevertheless, this case holds an important lesson. Despite all of the laws technicalities and nuances, when you rip most cases down to their cores, ligation is a morality play. If you can show that an employee did something that offends our idea of what is right versus what is wrong (dealing drugs, stealing, other dishonesty, etc.), you will place yourself in a very good position to win your case.