Ohio joins the fray on employers asking for social media passwords

It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

• Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
• Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

1. Construct a public or semipublic profile within a bounded system created by the service;
2. Create a list of other users with whom the individual shares a connection within the system; or
3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.

6th Circuit applies “but for” causation to ADA claims (but does it matter?)

More than a year ago, the 6th Circuit upheld its use of a “sole reason” causation standard in ADA cases, but invited the full 6th Circuit to revisit (and overrule) this issue. That en banc panel issued its ruling last Friday, and, expectedly, it overruled the Court’s prior use of the “sole reason” causation standard. Unexpectedly, however—in Lewis v. Humboldt Acquisition Corp. (6th Cir. 5/25/12) [pdf]—the Court replaced it with a similarly restrictive “but for” causation standard.

Relying on the linguistic similarities between the ADA and the ADEA, the Court looked to the Supreme Court’s decision in Gross v. FBL Financial Services for the appropriate causation standard:

[W]hat standard should trial courts use in instructing juries in ADA cases? Gross [v. FBL Financial Services] points the way. The ADEA and the ADA bar discrimination “because of” an employee’s age or disability, meaning that they prohibit discrimination that is a “‘but-for’ cause of the employer’s adverse decision.”

Case closed. Or is it? As one of the dissenting opinions points out, the 6th Circuit is very much in the minority in its interpretation of the ADA’s causation standard. “Significantly, a majority of our sister circuits have embraced the motivating factor standard in reviewing ADA claims.” (citing to the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, and 11th Circuits). Could this conflict among the circuits now head to the United States Supreme Court for resolution?

Or, is this issue a mere academic exercise? The ADA Amendments Act changed the ADA’s operative causation language. Pre-amendments, the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” The ADAAA, however, changed the “because of” causation standard to a “discriminate … on the basis of disability” standard. This alteration is significant, because it changes the key language in the ADA that had mirrored the ADEA, and upon which the 6th Circuit based its opinion that the rationale of Gross also applies to ADA claims. Is is splitting hairs to say that “because of” is materially different than “on the basis of?” Maybe. But, it is not insignificant that the ADAAA altered this key phrase.

As you can see, these issues are complex and, despite the en banc ruling, are far from settled. For employers, you are infinitely better off making reasonable accommodations and avoiding disability discrimination claims, so that you do not place yourselves in positions to have to worry about proper burdens of proof and causation standards. In other words, if you don’t put yourself in a position to be sued, because-ofs and but-fors simply don’t enter the equation.

WIRTW #227 (the “replay” edition)

Yesterday afternoon, I appeared on the The Proactive Employer, talking all things workplace social media with host Stephanie Thomas, fellow guest Molly DiBianca (of the Delaware Employment Law Blog and @MollyDiBi). Thanks to Stephanie for a great hour.

Luckily for you, if you missed yesterday’s hour live, its available for replay two different ways:

• Streaming via The Proactive Employer.
• Download via iTunes.

Now there’s no excuse for not listening. Enjoy your holiday weekend.

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

Discrimination

• How to lose a disability discrimination case in 5 easy steps… — from Eric Meyer’s The Employer Handbook Blog
• Second Circuit = The Avengers? Judges Create Alter Ego Liability — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC: Confederate Flag = Hostile Work Environment? — from Phil Miles’s Lawffice Space
• Religious employers, the ministerial exception and single moms—again! — from Robin Shea’s Employment and Labor Insider
• Title VII does not protect employee terminated because of illegal alien spouse — from EmployerLINC
• Another EEOC Systemic Lawsuit Bites The Dust In A Favorable Ruling For Employers — from Workplace Class Action Litigation
• Time to check the dress code? Can an employee be “too hot?” — from John Holmquist’s Michigan Employment Law Connection
• Getting Fired for Being “Too Hot” — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Illinois Passes Password-Privacy Law — from Delaware Employment Law Blog
• Are You a Victim of Social Media Discrimination? — from Social Media Today
• Don’t Search Cyberspace Without This — from Mark Toth’s Manpower Employment Blawg
• iPhone thief’s Disney cruise adventure goes on public display in owner’s Facebook album — from The Verge
• IBM stung by BYOD pitfalls — from TheAppleBlog

HR & Employee Relations

• Do temporary employees have rights? — from Evil HR Lady, Suzanne Lucas
• Expanding Ban the Box Legislation Impacts Small Business — from COSE Mindspring
• I Do Not Like to Fire People — from You’re the Boss Blog
• Five Employment Law Takeaways From American Idol — from TLNT
• Dear Evil Skippy: Can My Supervisor Make Me Use Less Perfume? — from Evil Skippy at Work
• 6 Reasons You’ll Be Investigating More Workplace Bullying This Year — from i-Sight Investigation Software Blog
• Whoomp, There It Is: Employees Are Skipping Work To Watch Sports — from Workplace Diva
• Female bus driver claims her boss licked her face — from New York Daily News
  

Wage & Hour

• Spring Tune-Up: Gas Stations Should Review Their Pay Policies and Recording Practices to Steer Clear of the DOL’s Recent Enforcement Initiative Targeting Them — from Wage & Hour Defense Blog
• Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the “Clock” Starting when Traveling From the Locker Room — from Trade Secret / Noncompete Blog
• Taking FMLA leave does not affect employee’s obligations under non-FMLA attendance policies — from Employment Law Matters

Labor Relations

• What the U.S. Chamber Of Commerce Doesn’t Want You to Know About Your Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
• 2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Ohio Supreme Court upholds statewide workplace smoking ban

On November 7, 2006, Ohio voters passed a ballot initiative to
enact the Smoke Free Workplace Act. It became effective on December 7, 2006, and is codified in R.C. Chapter 3794.

Generally, to adhere to the Act, businesses must do four things:

• Prohibit smoking in any enclosed “public place” or “place of employment,” including areas immediately adjacent to locations of ingress or egress.
• Post no-smoking signs—with the toll-free enforcement number, 1-866-559-OHIO (6446)—at all entrances or areas of transition between non-regulated and regulated areas.
• Remove ashtrays and other tobacco receptacles.
• Not discharge, refuse to hire, or in any manner retaliate against anyone for exercising any rights under the workplace smoking ban law.

Yesterday—in Wymsylo v. Bartec, Inc. [pdf]—the Ohio Supreme Court unanimously upheld the constitutionality of the Smoke Free Workplace Act.

If you have been dragging your feet in enforcing this law in your business, or have been hoping for a reprieve from the Ohio Supreme Court, you are out of luck. You need to ensure that your business complies with the Act and is smoke free.

In addition, whether you are in Ohio or another state, and your business is to be smoke-free, you should adopt a formal smoke-free policy, which includes formally designating where on your property employees are allowed to smoke (if allowed at all).

Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Radio/Podcast appearance: Being Smart About Social Media in the Workplace

This Thursday, May 24, at 3 pm, Molly DiBianica (proprietor of the Delaware Employment Law Blog and tweeter extraordinaire @MollyDiBi) and I will be guests on The Proactive Employer, hosted by Stephanie Thomas. 

We will be discussing all things social media for employers, including providing tips on workplace social media policies, offering suggestions on how to ensure employees are using social media safely, and talking about how companies can be be smart about social media.

We will also be taking live questions, both via Twitter with the hashtag #TPE, and via call-in at (866) 472-5790. If you can’t join us live, the episode will also be available for streaming or download.

Molly and I go way back in the blawgosphere. She also contributed the chapter on privacy to my social media book, Think Before You Click, Strategies for Manging Social Media in the Workplace. Please tune in for what should be a very engaging and interesting conversation.

The obligatory post about the EEOC’s charge filing data

The EEOC has released state-by-state charge filing statistics for the past three years. Which types of discrimination are popular (and not so popular) with Ohio employees?

• Race discrimination: 35.4% of all charges
• Retaliation: 32.9%
• Disability: 29.6%
• Age: 28.6%
• Sex: 27.3%
• National Origin: 5.3%
• Religion: 3.5%
• Color: 1.7%
• Equal Pay: 0.9%
• Genetic Information: 0.3%

These numbers shouldn’t be that much of a surprise to any businesses.

What is more interesting (at least to me) is how Ohio fairs when compared to the other 49 states. For fiscal year 2011, there were 3,137 total charges of discrimination filed with the EEOC in Ohio. Overall, that number comprises 3.1 percent of all charges filed nationwide, placing Ohio 12th among the 50 states.

Ohio is 7th in overall population, yet 12th in EEOC filings. Is is possible that Ohio is more friendly to employers than smaller states such as Georgia, North Carolina, Virginia, Tennessee, and Alabama, all of which rank ahead of Ohio in the number of EEOC filings per year? Probably not. Instead, let me offer a different explanation. Ohio’s employment discrimination statute is quirky. It allows employees to proceed directly to court without first exhausting their administrative remedies by filing a charge with the EEOC (or its state equivalent).

Ohio businesses are facing their fair share of discrimination claims; they are just facing them in courts instead of in the agencies. This quirk fails Ohio businesses. Employees are able to bypass the EEOC’s crucial role in filtering out frivolous claims. Until Ohio’s legislators step up to the plate and fix this anomaly of our discrimination statute, our state’s business community will continue to be disadvantaged by defending the bulk of discrimination claims in a more costly and time-consuming judicial venue.