Who owns personal email on an employer-issued smartphone?

The following scenario is playing out in companies all over America. A company issues a smartphone to an employee. The company owns and pay for the device, but allows the employee to use the device for personal reasons, including accessing a personal email account, such as Gmail. The employee returns the phone, but does not first erase her personal email from the device. Is it legal for the employer, who owns and pays for the phone, to access the employee’s personal email account after the device’s return?

According to Lazette v. Kulmatycki (N.D. Ohio 6/5/13), the answer is no. In Lazette, the facts alleged are significantly worse than my fact-pattern above. After Lazette returned the phone, her supervisor, over the course of 18 months, surreptitiously read 48,000 of Lazette’s personal emails, including those involving her family, career, financials, health, and other personal matters.

The meat of the decision concerns whether the employer violated the Stored Communications Act (although Lazette also brought federal- and state-law wiretap claims, and common law claims for invasion of privacy and intentional infliction of emotional distress. The Stored Communications Act prohibits the unauthorized access of personal email and other Internet accounts. Think of it as an anti-wiretapping law for the Internet. The court refused to dismiss the Stored Communications Act claim, concluding that Lazette had pleaded sufficient facts in her complaint for the case to proceed to discovery. if you are at all interested in the SCA, what it covers, and how it works, I commend this case to your reading list.

Aside from the legal intricacies of the Stored Communications Act, this case raises important practical considerations about the risks companies are taking via the use of mobile devices at work. Smartphones aren’t going away. Indeed, if you’re anything like me, it’s become more of an appendage than a phone. So, how should companies manage the risks of these devices under increasing judicial scrutiny and application of the Stored Communications Act? Let me offer three practical tips:

1. Draft a policy. Under the Stored Communications Act, personal data is sacred. Telling employees that they do not have any expectation of privacy in company-owned mobile devices might not save you from a Stored-Communications-Act claim if one employee surreptitiously accesses another employee’s personal email account. For sure, have a policy that spells out an employee’s reasonable lack-of-privacy expectations, but have a similar policy statement prohibiting employees from accessing the personal email or other Internet account of others.
2. Wipe the device. Curiosity might have killed the cat, but you shouldn’t let it kill your company. Left to their own devices, people will snoop. Don’t give them the opportunity to do so. When a mobile device is returned by an employee, wipe it clean of all personal information and data.
3. But, quarantine it first. I suggest, however, that before you wipe a device you pause to make sure that you don’t need any data on the device. Once it’s wiped, it’s going to be very hard, if not impossible, to recover that data. Are there pending lawsuits for which data on that phone might be discoverable? If so, you better save it until you can determine what, if anything, needs to be preserved or produced. Are you concerned that the ex-employee might have been talking to a competitor or walked off with your trade secrets or other confidential or proprietary information? if so, you better check the phone to see if there is any evidence you can use to build your claim before you wipe it clean.

(Hat tip: Privacy & Information Security Law Blog)

The one thing you can never release in a settlement agreement

Legal disputes end in one of two ways—either with a judgment by a court or an agreement between the parties. The vast majority of cases follow the latter course.

When parties enter an agreement to settle a dispute—either in a settlement agreement ending litigation or a severance agreement ending one’s employment—the goal is to release all claims brought, or that could have been brought. An employer is paying the employee, in part, for the certainty that the employee will not file other claims against it in the future for past acts. Thus, these agreements typically contain general releases, along with covenants not to sue.

Do not, however, make the mistake of including in your agreement a covenant forbidding the employee from filing a discrimination charge with the EEOC or other agency. The EEOC will view such a provision as retaliatory under Title VII.

Last week, the Agency announced that it had reached a settlement with Baker & Taylor over claims that the company “violated Title VII by conditioning employees’ receipt of severance pay on an overly broad, misleading and unenforceable severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC.” The EEOC alleged that the company required employees “to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency” in order to receive their severance pay.

The offending provisions (taken from the EEOC’s Complaint) were as follows:

• “I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan.”

• “I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company.  I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation.”

How could this problem have been avoided, while still providing the employer relative certainty that it will not have future legal dealings with the releasing employee? A simple disclaimer tacked onto the back-end of the release language, stating that nothing in agreement prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEOC, or with a state or local civil rights agency. You can couple that language with a covenant providing that in the event that the employee files such a charge, the employee disclaims the right to seek or recover money damages from such a filing.

With this language, the employee retains the right to file a charge (minus damages), the EEOC retains the right to seek redress of civil rights violations, and the employer retains peace of mind that the employee has signed as strong of a release as Title VII allows.

Fight the power! A timeless lesson on employee relations from "What's Happening!!"

As I settled in for a quiet Friday night in front of the TV, I stumbled upon one of my guilty pleasures — “What’s Happening!!” If your unfamiliar with this late 70s sitcom gem, it tells the story of three high-school friends growing up in the Watts section of Los Angeles, Raj, Dwayne, and Rerun, along with Raj’s pest of a little sister, Dee, their strong-willed single mom, Mabel, and the wise-cracking waitress at the local diner, Shirley.

The episode upon which I stumbled is called One Strike and You’re Out. It’s not as good as the classic “Doobie Brothers” episode, but, beggars can’t be choosers, right?

Here’s the synopsis, courtesy of Wikipedia:

Rerun being fired from the supermarket is the last straw for Raj, who rallies the rest of the workers to take some action against their boss Mr. Pronson. However, when the staff goes on strike, Raj finds himself in a jam, since Mama has lost her job and the family now has no source of income.

Enjoy this little slice of sitcom history, which teaches the important and timeless lesson that appearances aren’t always what they seem with your employees, what motivates their actions might not be what you think, and employees have lives outside of work that can, and often do, impact how they behave on the job.

Part One:



Part Two:

WIRTW #280 (the “has it been a year already” edition) #blawg100

The ABA Journal is, again, seeking nominations for its list of the 100 best legal blawgs, the “Blawg 100.” The nomination process is simple. Go here and answer a few simple questions touting your favorite blawgs. If you are so inclined, please take a few moments between now and August 9 to show some love for the blawgs you regularly read. If you take a look at this week’s list of links below, you’ll get a flavor for some the blawgs I’ll be nominating.

Also, I cannot let the week go by without giving a huge thank you to fellow blawger, Phil Miles, who, at his Lawffice Space blog, posted a review of my book, The Employer Bill of Rights. Phil’s words are much appreciated. The best compliment anyone can pay a lawyer is that you don’t write like a lawyer. Phil, from one to another, thanks.

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

Discrimination

• Is Obesity a Disability? — from WSJ.com: Law Blog [Thanks for the link to my earlier post]
• Obesity as a workplace disability? One court bucks the trend and says no. — from Eric Meyer’s The Employer Handbook Blog
• Gays And Lesbians Turn Fight To Workplace Discrimination Ban — from NPR’s All Things Considered
• No Brazilian Wax, No Job — from Phil Miles’s Lawffice Space
• An Employee Is Stealing Company Documents … That Can’t Be Protected Activity, Right? — from Trading Secrets
• The SCOTUS Decisions Every Employee Should Be Talking About — from Harvard Business Review
• Whole Foods Revises Its English-Only Policy — from Employer's Law Blog [background here]

Social Media & Workplace Technology

• Is a Candidate’s Profile Picture Worth a Thousand Words? — from EmployeeScreenIQ Blog
• The 2013 Social Media Landscape — from Social Media Today
• What Google Glass Means for Workplace Policy — from Mashable
• School board axes law firm after attorney’s viral video rant — from ABA Journal Daily News
• Are “Sent From My Phone” Signatures Useful or Annoying? — from Lifehacker
• Happy Birthday George Orwell, here's your surveillance society — from The Verge
• Common Law Invasion of Privacy Claims in Social Media — from Augmented Legality

HR & Employee Relations

• Restaurant Wars: Restrictive Covenants for Chefs & Tandoori Chicken Tikka — from Dan Schwartz’s Connecticut Employment Law Blog
• An Introduction to Background Checks for Employers — from ERC Insights Blog
• A cautionary tale about out‑of‑state telecommuting — from EmployerLINC
• Is bullying in the workplace legal? — from Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Last Word: In Defense of Unpaid Internships — from Rick Bell at Workforce.com
• Supremes' DOMA decision may simplify some spousal FMLA administration — from Robin Shea’s Employment and Labor Insider
• The Questions to Ask Before Adopting an ESOP — from You’re the Boss Blog
• FLSA Status of Mortgage Loan Officers Remains Unsettled — from Minnesota Employment Law Report
• The “Fluctuating Work Week” — An FLSA Mirage — from New York Labor and Employment Law Report
• Are Mortgage Loan Officers Exempt or Non-Exempt? That's an Excellent Question. — from Wage & Hour Defense Blog
• Avoiding Court by Calculating “Regular Rate of Pay” the Right Way — from Blogging4Jobs
• Failing to Recognize an Employee's Need for FMLA Leave Can be A Costly, Painful Mistake — from Jeff Nowak’s FMLA Insights

Labor Relations

• Supreme Court to Consider Labor Issues Next Term — from Washington D.C. Employment Law Update
• Does Your Email Policy Pass Muster? New NLRB Decision Offers Guidance — from Labor & Employment Law Perspectives
• No Changing of the Guard: NLRB Continues to Uphold Policies Barring Union Use of Employer Email Systems — from Labor Relations Counsel
• NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected — from Labor Relations Update

The long and short of height discrimination under the ADA

A couple of week ago I wrote about why the ADA likely protects against obesity as a disability (thank you Wall Street Journal Law Blog for the linkage).

If the ADA is starting to protect physical characteristics such as weight, what about height? McElmurry v. Arizona Dept. of Agriculture (D. Ariz. 6/11/13) offers some guidance, and employers will not be happy about it.

Barbara Joy McElmurry, 4'10" tall, worked for the Arizona Department of Agriculture as a lab technician fighting the Asian citrus psyllid. Her job consisted of screening traps set by her co-workers in the field. Over time, tension developed between McElmurry and her supervisor, Mary Garman. After McElmurry threatened to file harassment charges against Garman, the supervisor accused her of sabotaging lab results and demoted her to field work. McElmurry demurred, protesting that at 4'10" she was too short to drive the vehicles necessary to do field work. Garman, however, forced the demotion. Ultimately, McElmurry was injured in the field, and Garman terminated her.

Among other claims, McElmurry sued her ex-employer for disability discrimination, claiming that the ADA protects her shortness of stature.

The district court refused to dismiss the disability discrimination claim, concluding that McElmurry had stated enough in her complaint for her disability discrimination claim to proceed to discovery:

McElmurry, however, has alleged that her height is outside the normal range. She stands around 4'10". The Department has claimed that height can never be a disability…. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that "short stature" could, in some contexts, "substantially limit[ ] one or more of the major life activities of an individual."

Typically, height is not a disability protected by the ADA. As this case illustrates, however, the ADA (as amended in 2009) is now sufficiently broad such that an employee can plausibly argue that a host of normal physical characteristics can become protected disabilities if they fall "outside the normal range." This case concerns height. But, it is not a stretch for one to imagine similar claims of discrimination based on other typical characteristics that fall outside the norm—weight, for example.

This case is a good illustration of how dangerous the ADA has become for employers, and how carefully businesses must tread when dealing with any physical or mental condition.

This post originally appeared on The Legal Workplace Blog.

6th Circuit’s definition of “supervisor” under the NLRA has broad implications

In Vance v. Ball St. Univ., the U.S. Supreme Court held that for purposes of vicarious liability for harassment under Title VII, a supervisor must have taken a tangible employment action (i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits) against the victim.

In footnote 7 to the opinion, the Court noted that the meaning of supervisor can vary depending on the federal statute being applied:

Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.... The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect.

Indeed, the NLRA applies a less strenuous definition than Title VII to determine supervisors status. The question is how much less strenuous.

In GGNSC Springfield LLC v. NLRB (7/2/13), the 6th Circuit concluded that charge nurses who have the authority to exercise their independent judgment to discipline subordinate employees are supervisors under the NLRA. In reaching this conclusion, the 6th Circuit rejected the Board’s argument that the power to discipline must involve an immediate suspension, termination, or other employment action:

The Board’s position on discipline is essentially that, to be considered “discipline,” the employee must suffer some immediate adverse employment action as a result of receiving an employee memorandum, such as suspension or termination, and because RN charge nurses cannot suspend or terminate a CNA’s employment unilaterally, they lack authority to discipline.... The term discipline must capture something less....

Generally, where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors....

The larger question is whether the RNs must consult with a superior and obtain approval before issuing a memorandum; if they must, their judgment is unlikely “independent.” The record shows that consultation and approval is neither required nor typical.

Thus, as a general rule, an employee who possesses sufficient authority to issue any disciplinary action (even warnings that could lead to later suspension or termination) without consulting with a superior, qualifies as a “supervisor” under the NLRA. The immediate decision need not result in a tangible employment action.

Make no mistake, this holding is significant. The NLRA does not cover or protect “supervisors.” Given the scope of the NLRA’s current agenda to further employees’ rights to engage in protected concerted activity, broadening the scope of who qualifies as a supervisor removes those employees from the Act’s protections. Thus, for example, a “supervisor” fired for complaining on Facebook about wages, benefits, or other goings-on in the workplace cannot claim that the termination violated the NLRA’s prohibitions against adverse actions for engaging in protected concerted activity.

In a political environment that is broadening the NLRB’s power, GGNSC Springfield’s broad interpretation of the definition of “supervisor” is a big win for employers.

Is your company looking at the wrong info to screen candidates using social media

According to recent survey by CareerBuilder.com (hat tip: The Employer Handbook Blog), 39 percent of companies use social media sites to research job candidates, up only two percent from last year. Yet, there was a nine percent jump (from 34 to 43 percent) in the number of hiring managers who report using information found on a social media site to disqualify a candidate from consideration.

Among the types of disqualifying information found on social media sites:

• Provocative/inappropriate photos/info — 50 percent
• Info about drinking or drug use — 48 percent
• Bad mouthing a previous employer — 33 percent
• Poor communication skills — 30 percent
• Discriminatory comments related to race, gender, religion, etc. — 28 percent
• Lying about qualifications — 24 percent

Interesting, North Carolina State University’s Journal of Cyberpsychology, Behavior, and Social Networking just published an article entitled, “Big Five Personality Traits Reflected in Job Applicants’ Social Media Postings.” According to a press release announcing the article’s publication, “Companies may have a fundamental misunderstanding of online behavior and, as a result, may be eliminating desirable job candidates.”

To compile data for the article, researchers tested 175 people to measure the personality traits that companies look for in job candidates (such as conscientiousness, agreeableness and extraversion), and then surveyed their Facebook behavior to link it to the specific personality traits.

The findings were eye-opening:

• There is no significant correlation between conscientiousness and Facebook posts about alcohol or drug use.
• Extroverts are significantly more likely to post about drugs or alcohol of Facebook.

In other words, the 48 percent of the companies in the CareerBuilder survey that reported disqualifying a job candidate because of social media posts about drinking or drug use may have done themselves a disservice. That disservice might be compounded if the position for which the company is hiring favors extroverted personalities (such as a sales position).

All is not bad news from the NC State survey. Study participants who rated high on both agreeableness and conscientiousness were also very unlikely to “badmouth” other people on Facebook, including their former bosses. So, the one-third of companies in the CareerBuilder survey who reported disqualifying a job candidate for bad mouthing a previous employer are likely making a good hiring decision.

Stats are just stats, and should not be taken as the bible on the issue on which they are reporting. Indeed, there are reasons other than agreeableness and conscientiousness for which a company might consider disqualifying a candidate who posts about drug use or drinking. For example, I would question the judgment of anyone posting any info or pictures of drug use, and question the judgment of active job seekers posting photos or other information on excessive drinking.

These two surveys, however, make for an interesting juxtaposition, and show that there might be some science behind how employers are using social media posts to screen applicants and hire employees.

Moreover, regardless of how you use the information you find online, the guidance for the process you should be using the obtain the information remains the same — companies need to ensure that the information upon which they are making hiring decisions is lawful, and that appropriate screens are in place to prevent protected information (such as EEO information) from leaking into the hiring process.