Do employees have any privacy rights in personal emails sent from corporate accounts?

Earlier this week, a story broke reporting that Harvard University surreptitiously viewed the work emails of 16 residential deans as part of its investigation into a cheating scandal. Your level of outrage at Harvard’s investigation will depend entirely on the degree to which you believe employees have an expectation of privacy in a corporate email account.

According to U.S. v. Finazzo (E.D.N.Y. 2/19/13), employees enjoy no such expectation of privacy, provided that you have the right language in your email policy.

In Finazzo, the U.S. government alleged that Christopher Finazzo, an executive at the clothing retailer Aéropostale, received illegal kickbacks from transactions between his employer and one of its vendors. During an unrelated internal investigation, Aéropostale discovered an email in Finazzo’s Aéropostale email account between him and his personal attorney. That email contained a list of Finazzo’s personal assets, which included several companies he co-owned with the vendor from whom he received the illegal kickbacks.

In his subsequent federal criminal trial, Finazzo attempted to block the government from using that email against him. The trial court denied his motion, holding that he had no expectation of privacy in his work email account.

In reaching this conclusion, the federal court relied upon Aéropostale’s email policies, which stated:

Except for limited and reasonable personal use (e.g., occasional personal phone calls or e-mails), Company Systems should be used for Company business only. Any limited exceptions to this rule must be approved through the IT department. Under no circumstances may Company Systems be used for personal gain or profit; solicitations for commercial ventures; religious or political issues; or outside organizations. Company Systems may not be used to distribute chain letters or copyrighted or otherwise protected materials….

You should have no expectation of privacy when using Company Systems. The Company may monitor, access, delete or disclose all use of the Company Systems, including e-mail, web sites visited, material downloaded or uploaded and the amount of time spent on-line, at any time without notification or your consent.

The court concluded that Aéropostale’s policy, and Finazzo’s knowledge of it, disposed of any claim  that the email exchange with the personal attorney was private and therefore privileged:

Finazzo has no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account. Aéropostale had a clear and long-consistent policy of limiting an employee's personal use of its systems, reserving its right to monitor an employee's usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them.

Do you have an email or workplace technology policy? Do your employees know that you have such a policy? Does  your policy—

1. Warn employees that they have no expectation of privacy in corporate emails or in their use of corporate systems?
2. Ban personal use of corporate systems or email, or limit such personal use to what is reasonable and occasional?
3. Reserve the right of the company to monitor employee use of its systems, including emails?

Following these simple steps will go a long way to dispelling any idea by your employees that their work email is private, while providing you sufficient coverage lest anyone challenge your ownership of employee corporate emails and or your right to search such emails.

Take a pregnant pause before firing that pregnant worker

Two pregnancy discrimination settlements recently announced by the EEOC illustrate the added risk employers assume when firing a pregnant worker.

• In the first case, a Chicago-based childcare center paid $31,000 to settle allegations that it had forced a pregnant employee to quit by refusing to allow her to work after her fourth month of pregnancy.

• In the second case, a Detroit-area hotel paid $27,500 to settle allegations that it had fired a housekeeper out of fear of potential harm to the development of her baby.

Last week, I wrote about whether an employer should choose to litigate a case or settle early. One consideration I did not cover, perhaps because it seems like common sense, is that the merits (or lack thereof) of the case can be a driving factor. In discussing the case involving the childcare center, the EEOC’s Chicago regional attorney underscored this important factor: “Really early resolution of this case—before any depositions were taken created a win-win situation for everyone. This employer avoided investing in litigation expenses which would not have yielded a different result and was able refocus on its business in a hurry.” Given the risk presented by these cases and the relatively low value settlement payments, it’s hard to argue with his opinion on the value of early resolutions.

Firing a pregnant employee is a risky proposition. You not only have to worry about Title VII, but also potential liability under the FMLA (if you are large enough to be covered), and the ADA (if the employee suffers from a pregnancy-related medical condition). Unless you want to face a settle-or-litigate Hobson’s choice, you need to think long and hard before firing, or taking any other adverse action against, a pregnant worker.

What do you do if you doubt an employee’s disability?

An employee asks you for time off and other accommodations for anxiety attacks. Do you—

1. Confirm her diagnosis and meet with her to decide the right accommodation to enable her to perform the essential functions of her job; or
2. Counter her claims with skepticism, fail to grant her leave or other accommodations, and fire her?

A Los Angeles waste disposal company chose option number 2. According to Judy Greenwald at businessinsurance.com, that choice cost the company a $21.7 million jury verdict.

I hope that I don’t have to lecture any of my readers about what is wrong about denying accommodations and firing disabled employees.

What rights do you have, however, if you doubt the legitimacy of an employee’s claimed disability? Here are six tips, culled from the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:

• If an employee’s claimed disability is not obvious, an employer is entitled to receive “reasonable documentation” about the disability and its functional limitations.

• If an employee’s claimed disability is obvious, however, an employer cannot ask for any confirming documentation.

• Reasonable documentation means only that which is needed to establish that an ADA disability that needs a reasonable accommodation. Thus, in most cases an employer cannot request an employee’s complete medical records. If  an employee has more than one disability, an employer can request information pertaining only to those that require reasonable accommodation.

• An employer may require that the documentation about the disability and its functional limitations come from an appropriate health care or rehabilitation professional.

• An employer can ask an employee “to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.”

• Instead of requesting documentation, “an employer may simply discuss with the person the nature of his/her disability and functional limitations.”

Are employers really asking for social media logins and passwords? [survey]

Last month, I discussed the recently introduced Ohio Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” As I’ve earlier noted, this bill has many problems. One of its biggest problems, though, is whether an issue even exists that this type of legislation needs to address.

Last week, the Senate’s Commerce & Labor Committee heard sponsor’s testimony on the bill. Gary Daniels, the Associate Director of the ACLU of Ohio, was among those who testified in favor of this bill.

Mr. Daniels’s testimony (which you can download in its entirety here), includes his unsubstantiated belief that this legislation is necessary to combat the “disturbing trend … developing across the country whereby prospective and current employers demand access to usernames and passwords….”

You would think that if the practice of employers requiring applicants and employees to disclose login and password information has reached epidemic proportions, I would have heard of or encountered at least one employer engaging in this practice. I haven’t. At his Connecticut Employment Law Blog, Dan Schwartz calls these password privacy bills “an answer in search of a problem.” I think Dan is spot on. Yet, is it possible that we are that far off-base, and the ACLU is correct?

Since my last survey (on the FMLA) worked out so well, I decided to try again. I’d like to gauge public opinion on whether employers are insisting on social media logins and passwords, or if this is an illusory problem trumped up by the news media and special interest groups.

Please take a few minutes to answer a short survey on your opinions about and personal experience with these issues. I’ll keep the survey open through March 22, and publish the results the following week.

You can answer the survey embedded below, or the survey is also available at this link. I thank you in advance for the few moments of your time in responding.

WIRTW #264 (the “never go to work, part 2” edition)

Marissa Meyers and her edict ending telecommuting at Yahoo continues to dominate the headlines. Here are the best articles from around the blogosphere I’ve read on this story this week:

• Why Marissa Mayer’s decision to pull Yahoo employees back to the office was likely the right call — from Boy Genius Report
• Telecommuters, The Boss Still Thinks You’re Mowing the Lawn — from Workplace Diva
• Does Telecommuting Hurt Your Career? — from Evil HR Lady, Suzanne Lucas
• I Love Work from Home — from The Tim Sackett Project
• Year of the Cubicle and the Death of ROWE at Best Buy — from KnowHR Blog
• The Brain at Work and at Home — from Huffington Post
• Don’t worry, the ban on telecommuting won’t become a trend — from Fortune

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

Discrimination

• Law Professor Lambasts Discrimination Laws And The EEOC — from Employment Discrimination Report
• Is Being On Time an Essential Function of Job? Second Circuit Says Most Times But Not Always — from Dan Schwartz’s Connecticut Employment Law Blog
• Random Alcohol Tests Not in Violation of ADA — from ERC Insights Blog
• “Height And Weight” Anti-Discrimination Bill Considered In Utah – Are “Appearance Bias” Laws Far Off? — from Employment Discrimination Report

Social Media & Workplace Technology

• Texas Bill To Allow Service of Process Via Facebook — from Shear on Social Media Law
• Cyberloafing at Work? Maybe It Really Just Shows a Lack of Leadership — from TLNT
• How Lawyers Get Their Hands on “Private” Facebook Posts — from Augmented Legality
• The Social Media Checklist for Companies — What Your Clients Should Do, Know and Learn — from Employment & the Law
• BYOD: Not the Party that BYOB Is — from Mike Haberman’s Omega HR Solutions
• All work and no play? Mobile wipes out 8-hour workday — from USAToday

HR & Employee Relations 

• Keys to ensuring the secrecy of trade secrets — from EmployerLINC
• Saving Lives? We Have a Policy Against That — from Phil Miles’s Lawffice Space
• Ask Your Coworker on a Date Without Getting Fired — from Lifehacker
• Are Workplace Bullies Violating Criminal Stalking Laws? — from Screw You Guys, I’m Going Home

Wage & Hour

• The Interns Are Coming! Is Your Program Complying with Wage and Hour Law? — from BLEG Blog
• Student Externs, Required to Complete Externship in Order to Graduate, Were Not “Employees” — from Overtime Law Blog
• How to pay employees for Daylight Savings Time work — from Eric Meyer’s The Employer Handbook Blog
• 2d Cir: FLSA Does Not Cover Gap Time — from Molly DiBianca’s Delaware Employment Law Blog
• Should Your Employer Pay You For Time Spent Changing Your Clothes? — from Overtime Lawyer Blog
• How Can Congress Improve the FMLA? Let's Count the Ways… — from Jeff Nowak’s FMLA Insights
• It’s time to fix the Family and Medical Leave Act — here are some suggestions. — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Exploited twentysomethings: It’s time for a meetup with the labor movement — from Minding the Workplace
• Chrysler and its employee code of conduct: Next stop—the NLRB? — from John Holmquist’s Michigan Employment Law Connection
• Labor law another victim of partisan politics — from HR Hero Line

Fight or flight? When an employee sues you, should you litigate or settle?

Two weeks ago, the New York Times’s You’re the Boss Blog asked the following question:

How do you handle employee litigation?

Do you dig in your heels and fight, settle, or some combination of the two?

The NYT’s blog post recounted the story of one small business owner who chose to stand his ground and assume the risk of taking an employment case to trial. As a result the employee dropped his settlement demand to a nuisance value, $10,000.

The reality, however, is that there is no easy answer to the question of how your company should respond to a lawsuit by an employee. You must weigh all of the following factors to come to the right decision for your business in each case.

• Is the plaintiff a current or former employee?
• How much can you afford to spend, and will litigation now impede your ability to fund a settlement later?
• Do you have employment practices liability insurance coverage?
• Is there a risk that a settlement will incent other employees to bring claims, or will long, protected litigation deter copycat claims?
• What is your tolerance for the distractions of litigation—responding to discovery, gathering documents, dealing with the hassles of electronic discovery, attending depositions, and attending court dates?
• Do you want to subject your managers, supervisors, and other employees to depositions?
• What is the reputation of the plaintiff’s attorney—is s/he going to make the case more difficult and expensive than necessary?
• What is the likelihood the assigned judge will grant a summary judgment motion and dismiss the case?
• How tight or loose are juries in your jurisdiction?

How you answer these question will dictate whether you litigate or offer a settlement, and, if it’s the latter, when you make that offer. Keep in mind, however, that even if you choose to offer a settlement, no case resolves without two willing parties. If the other side is not willing to meet you at a fair and reasonable value for the claim, then the choice has been made for you, lest you become an easy mark for every disgruntled employee.

This post originally appeared on The Legal Workplace Blog.

Who's the "knucklehead?" Employee loses retaliation claim after slurring co-worker

The original "knucklehead"

Noreen Wilson worked as a pharmacist for The Cleveland Clinic. From August 24 through November 4, 2010, she racked up three corrective actions -- the first for calling a coworker a "knucklehead," the second for sending an improper email to a job applicant, and the third for disconnecting a telephone while a coworker was on a call. After the last corrective action, the hospital transferred Wilson to a different shift. Three days later, she applied for, and was granted, FMLA leave. She then appealed the corrective actions through the Clinic's internal processes. After the hospital rejected her appeal and upheld the correction actions, she resigned to take a job with a different employer. She then sued the Clinic for, among other things, FMLA retaliation relating to the corrective actions.

In Wilson v. CCF (N.D. Ohio 2/6/13), the district court concluded that the corrective actions were not "adverse" to support a claim of retaliation under the FMLA.

The Court finds that the corrective action Plaintiff received for calling a customer/coworker a "knucklehead" is not an adverse employment action.... Plaintiff received a corrective action for calling a coworker a "knucklehead." Plaintiff does not dispute doing so and therefore, cannot rely on this as evidence of constructive discharge when it was based on her own misconduct.

Exercising control to dole out legitimate discipline is not retaliation or discrimination. It's sound management of your people. Provided the punishment fits the crime, and provided the punishment is consistent with your past practices, you can discipline without fear of retribution.