WIRTW #294 (the “all I want” edition)

Satellite radio has so overplayed Kodaline’s All I Want that, even though I like the song, I instinctively switch channels any time it comes on.

Then, I saw the video:

The lesson for employers and employees to take to heart? What defines a person is one’s actions, not one’s appearance. (And, apparently, that sexual harassment laws are much different in Ireland that here in the States. I’d love to hear from an Irish employment lawyer on this point.)

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

Discrimination

• “Derailers” and Employment Liability: Or, How to Get Out of the Way Before the Train Jumps its Tracks — from Intown Employer
• Going to the press with an employment dispute = “retaliation”? — from Walter Olson’s Overlawyered
• Triggering the Duty of Accommodating Religion — from Workplace Prof Blog
• Timely Attendance Isn’t An Essential Job Function?!? — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• Strong Computer Usage Policy Strengthen Claims Against Former Employees — from All in a Day’s Work
• How Did the White House Unmask Its Internal Twitter Critic? — from Shear on Social Media Law
• 11th Cir. Upholds Facebook Discipline of Police Officer — from Molly DiBianca’s Delaware Employment Law Blog
• Nearly half of employers investigate job applicants online — from Eric Meyer’s The Employer Handbook Blog
• Fired worker loses smartphone privileges for 3 years for hacking into law firm’s server — from ABA Journal Daily News
• Privacy Suit Over Hidden Cameras in Workplace Bathrooms Reinstated — from Law.com

HR & Employee Relations

• Mandatory Flu Shots for Employees in Connecticut: Fact vs. Fiction — from Dan Schwartz’s Connecticut Employment Law Blog
• The SCOTUS Case That Could Give Voice to More Whistleblowers — from Harvard Business Review
• 5 Ways Your Workplace Bully May Be Breaking The Law — from Screw You Guys, I’m Going Home
• Dress Codes and Grooming Codes in the Workplace — from Blogging4Jobs
• The 5 Biggest Lies In HR — from The HR Capitalist, Kris Dunn
• Work-life balance: workplace flexibility is trending in the US — from Employment Intelligence
• Sexual abuse: Getting your employees to do the right thing — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Preview of future overtime lawsuits? — from EmployerLINC
• Are Your Non-Exempt Employees Properly Compensated for All of Their Work Time? — from Labor & Employment Law Perspectives
• With FMLA audits on the rise – How do US employers stay prepared? — from Employment Intelligence

Labor Relations

• Why Some Companies Want a Unionized Workforce — from Matt Austin Labor Law
• Federal Shutdown Ended, National Labor Relations Board to Resume Full Operations Today — from Labor Relations Today

The legal reason why you shouldn’t force employees to turn over social media passwords

There has been a lot of ink spilled out on the supposed practice of employers requiring employees to provide access to their private social media accounts. I’ve long espoused both that this practice is not occurring with sufficient regularity to justify a legislative fix (despite New Jersey just becoming the 12th state to enact a legislative ban), and that employers should nevertheless avoid this practice because it erodes the trust that is necessary to build a workable employer/employee relationship.

Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. 8/20/13) provides further legal justification for employers to avoid this practice.

Deborah Ehling worked as a registered nurse and paramedic for MONOC beginning in 2004. Beginning in 2008, Ehling maintained a Facebook account with approximately 300 “friends.” She chose restrictive privacy settings on that account so that only her Facebook friend could see her wall posts. While Ehling had no MONOC managers as Facebook friends, she did add many coworkers, including a paramedic named Tim Ronco. Unbeknownst to Ehling, Ronco was taking screenshots of her Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Caruso never asked Ronco for information about Ehling, and never requested that Ronco share Ehling’s Facebook activity. Nevertheless, once Caruso received copies of the Facebook posts, he passed them on to MONOC’s Executive Director of Administration.

On June 8, 2009, Ehling posted the following statement to her Facebook wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

After MONOC management learned of the post, it temporarily suspended Ehling with pay. After MONOC fired Ehling for unrelated attendance issues, she sued, and claimed, among other things, that MONOC’s access of her private Facebook wall violated the Stored Communications Act and her common law right to privacy.

The SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. The Court had little issue concluding that the SCA covers non-public Facebook wall posts.

The SCA, however, has an exception for “authorized users.” This exception applies where (1) access to the communication was “authorized,” without coercion or pressure, (2) “by a user of that service,” (3) “with respect to a communication … intended for that user.” Ehling had no evidence to support her claim that MONOC’s access of her Facebook page was unauthorized. To the contrary, the evidence showed that Ronco voluntarily shared the information with Caruso, and, therefore, was “authorized” under the SCA. Thus, no violation of the SCA occurred via MONOC’s possession of wall posts from Ehling’s private Facebook page.

The Court disposed of Ehling’s invasion of privacy claim on similar grounds. In doing so, however, the Court made the following interesting observation:

The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else … This may have been a violation of trust, but it was not a violation of privacy.

In other words, the Court may have found a privacy invasion if the employer had used surreptitious or coercive means to gain access to its employee’s Facebook page. Thus, whether or not a statute specifically prohibits employers from requiring the disclosure of social media account information, this court makes it clear that an employer’s demand of such information is nevertheless illegal. Or, to put it another way, please don’t ask your employees to turn over their online passwords.

This post originally appeared on The Legal Workplace Blog.

When Coyote Posts Get Ugly (My latest column in Workforce magazine)

Each month I write a featured column in Workforce magazine. This month, my column focuses on the risks businesses take when then take to social media to comment on pending litigation and the employees who’ve filed. The article—”When Coyote Posts Get Ugly”—is available here.

A hypnotic tale about choice of law and non-compete agreements

Choice of law is one of the most important, and, often, most ignored decisions you can making in drafting a non-competition agreement. Lifestyle Improvement Centers, LLC v. East Bay Health, LLC (S.D. Ohio 10/7/13), illustrates how the choice of which state’s law will govern the contact can govern the enforceability of the restrictive covenant.

Patrick Porter owned Positive Changes Hypnosis Centers, a successful hypnosis-therapy center, which included a network of franchises. In 2003, Porter sold the business to an Ohio-based company, Lifestyle Improvement Centers. Years later, while running a competing California-based self-improvement company called East Bay Health, Lifestyle reached out to the Porters for help with a struggling Positive Changes franchise in California. Ultimately, the Porters acquired the struggling Positive Changes franchise from Lifestyle. The Porters’ company, East Bay, entered both a franchise agreement and a non-compete agreement with Lifestyle.

The Porters spent a year trying to turn around the Positive Changes franchise location, ultimately concluding it was a lost cause. The Porters shut down the franchise and converted it into The Smart Body Institute, operated through their East Bay Health company. When the Smart Body Institute entered the hypnotherapy business, Lifestyle sued under the non-compete agreement, which stated that Ohio law governed the parties’ relationship.

The Porters and East Bay argued that because California law forbids non-compete agreements, it violates the law and public policy of the state in which their business is located to enforce a non-compete agreement under a competing state’s law. The Ohio federal court hearing the dispute agreed, concluding that despite the Ohio choice of law provision, California law applied. Thus, an Ohio company, with an Ohio choice of law contract, in an Ohio court, could not enforce its non-compete agreement.

In this case, the court ignored the parties’ choice of law because of the strength of the public policy of the state in which the competing business was located. Yet, this case illustrates a larger point. Choice of law can be outcome determinative in non-compete cases. Because state law governs the enforceability of non-compete agreements, there are 50 different possible sets of rules for your contract. The set that you choose could determine your case. For example, Ohio enforces non-compete agreements based on their overall reasonableness. California, on the other hand, has decided that its public policy renders most non-compete agreements per se unenforceable. Do not ignore the selection of the controlling law in your non-competition agreements. Otherwise, you could be missing a golden opportunity to dictate the terms of the agreement’s interpretation, and, ultimately, its enforceability.

Riffing on the right way to do workforce reductions

Anthony Rachells was a top performer at Cingular Wireless. As a National Retail Account Executive in Cingular’s Cleveland region, he received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003 earned the top performance review among his peers. Yet, when AT&T acquired Cingular in 2004, and eliminated five of the nine employees in Rachells’s position. Rachells received the lowest 2004 performance review score of any candidate, ranked seventh in the overall selection process, and was terminated.

Rachells—who was the only African-American National Retail Account Executive—sued, claiming that his manager (who other testified had a history of discriminating against minorities) included him in the workforce reduction because of his race.

Last week, in Rachells v. Cingular Wireless Employee Services [pdf], the 6th Circuit concluded that it should be up to a jury to determine whether the decision-making manager singled out Rachells because of his race.

Here, among the Cingular candidates, Rachells was the only person of color and the only individual discharged in the RIF. Given this small sample size of the Cingular candidates, however, this is not sufficient to conclude that Cingular’s actions were racially motivated…. The district court erred in dismissing two other crucial categories of evidence tending to show race-based discrimination: evidence of Rachells’ superior qualifications and evidence of a discriminatory atmosphere at Cingular….

Here are three factors to think about when using subjective criteria (such as rankings) when deciding on who to include in a RIF:

1. Comparability. What do your workforce demographics look like before and after the RIF, company wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria. In this case, Cingular’s RIF failed the smell test by including the only African-American account executive.

2. Consistency. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm. In this case, it was not a stretch for the court to conclude that the manager rigged the ranking to single out Rachells.

3. Honesty. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Do the objective criteria (sales numbers, for example) contradict the subjective evaluation? In this case, Cingular’s RIF failed because the objective criteria (sales figures, awards, and prior performance reviews) did not match the subjective ranking prepared solely for purposes of the RIF.

RIFs, done correctly, provide employers wide protections from allegations of discrimination. Done poorly, however, RIFs open employer to widespread claims of discrimination that can prove more difficult to defend than the savings the employer hoped to realize from the layoffs.

WIRTW #293 (the “interview from hell” edition)

Is this the worst (fake) job interview ever?

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

Discrimination

• Fortune on the EEOC’s legal war against employers — from Walter Olson’s Overlawyered
• Is Being Dead a Disability? — from California Employment Law
• An employer is not required to change supervisors as an ADA accommodation — from Eric Meyer’s The Employer Handbook Blog
• SCOTUS Dismisses Constitutional Age Discrimination Case — from Phil Miles’s Lawffice Space
• Where’s the Beef? Employer Defeats EEOC’s Religious Discrimination Pattern Or Practice Case By Establishing Undue Hardship Defense — from Workplace Class Action Litigation
• United States Supreme Court Asks Government to Weigh in on Accommodations for Pregnant Employees — from Trade Secret / Noncompete Blog
• Unpaid interns and sexual harassment -- how much do you know? — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Court Finds Duty to Preserve Personal Emails of Employees — from Molly DiBianca’s Delaware Employment Law Blog
• Blurred Lines: Social Media and Confidentiality in Workplace Investigations — from Employment Law Lookout
• Tweet Ye, Tweet Ye: It’s OK to Promote Your Workers on Social Media — from Whatever Works

HR & Employee Relations

• Are You An Employee Friendly Company? — from The Tim Sackett Project
• Fat Jokes Can Turn Out to Be a Costly Workplace Problem — from TLNT
• Employment Law Differences for Non-Profit Employers — from Minnesota Employer
• Counting to Seven: The 7 Year Rule for Reporting Adverse Information on a Background Check — from employeescreenIQ Blog

Wage & Hour

• Pro-employee 5th Circuit? Four keys to recent FMLA retaliation decision — from Work Matters
• Holy Smokes! Employee's Minister Uncovers Her FMLA Abuse, Leads to Her Termination — from FMLA Insights
• Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied — from Currents: Hot Topics in Employment Law
• Did Amazon Violate Overtime Pay Requirements By Not Paying Warehouse Employees For Required Screenings? — from Overtime Lawyer Blog

Smoking out the law on e-cigarettes in the workplace

29 states, plus the District of Columbia, have laws prohibiting anyone from smoking in the workplace. Like similar bans in other states, Ohio’s statewide workplace ban applies to “smoking,” which means “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.”

Electronic cigarettes do not burn tobacco. Instead, they use a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, they are not prohibited by workplace smoking laws.

According to the Zanesville Times Recorder, e-cigarettes will be coming to your workplace, and will test the limit of your anti-smoking policy:

As vaporing becomes more prevalent, it’s quickly evolving into a controversial workplace issue. Employers will be faced with the challenge of contemplating the pros and cons of e-cigarettes for their workplaces and will need to consider adapting a policy that reflects their position

Proponents of e-cigarettes in the workplace argue that there exists no proof of any associated health risks, and that they improve employee productivity by eliminating the need of smoke breaks during the workday.

Opponents argue that these devices contain nicotine and detectable levels of known carcinogens and toxic chemicals, and that prohibiting their use in the workplace eliminates the risk of any complaints from nonsmoking co-workers, customers or others annoyed by the vapors.

There are no laws requiring that you allow e-cigarettes in your workplace. Laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so.

Companies should review their smoke-free workplace policies specifically to prohibit e-cigarettes, and consider including employees that use e-cigarettes as “smokers” for purposes of any wellness or smoking-cessation initiatives.

This post originally appeared on The Legal Workplace Blog.