Posted by marykeating on May 26, 2011 under Collective rights, Workplace privacy | 
The National Labor Relations Board has again pursued a company for firing employees over their facebook postings.
Here is how it began. An employee of a non-profit, Hispanics United of Buffalo (NY), apparently stated that some of the coworkers weren’t doing enough to help the non-profit’s clients. Another employee posted that comment on her facebook page, and several coworkers weighed in, complaining about the work load and other workplace related conditions.
Hispanics United fired five employees who had complained on facebook. The NLRB believes that they were engaged in “concerted activity.” Under the National Labor Relations Act, employees are protected from complaining about workplace conditions “in concert,” meaning as a small or large group. This law protects the rights of employees to form unions, but also behavior short of such formal organization. Many employers forget that they are covered by this law, and announce rules against sharing information on pay, for example, or talking to each other.
Employers seem very testy lately about how they are portrayed on facebook, twitter and websites. Employees’ rights to complain publicly (and in concert) need to be related to workplace conditions to be protected activity; for example, gossiping about a boss’s private life is probably not protected (unless it affects the terms and conditions of employment).
The case is scheduled to be heard on June 22. The last such NLRB complaint was settled.
Posted by marykeating on February 25, 2011 under Workplace privacy |
Maryland Department of Public Safety and Correctional Services has backed off of its policy to demand that applicants and employees returning from leave reveal their facebeook ids and passwords. The American Civil Liberties Union got involved, and sent a letter a month ago to the Secretary of the Department, detailing the unwarranted privacy implications of the policy. An employee returning to work after leave was instructed that the department would need unfettered access to his account for up to two months.
The Washington Post reported that the policy will be suspended for 45 days, pending review. Although its first accounts stated that the policy helped to determine if potential employees were involved in gang activity, a source for the Post said that the facebook screening was unrelated to the gang tie issue.
Posted by marykeating on January 27, 2011 under Workplace privacy |
While many of us willingly give up the most private of information on facebook to our hundreds of “friends,” we value our ability to choose what we disclose, and perhaps naively think we control who has access to it. Employment background checks deprive us of the sense that we control what is revealed. They involve digging around for facts that we might NOT readily disclose. Perhaps worse, they might involve questioning of our acquaintances or prior bosses.
The Supreme Court unanimously decided an interesting case involving employees’ right to privacy, earlier discussed here. The case before the Court involved employees of a federal contractor working at a NASA lab who were for the first time required to submit to background checks. Many of these employees had worked at the California Institute of Technology for years on astronomical research. They had never applied for government jobs. Under a new rule suggested after 9/11. All employees given access to government facilities were required to go through the same background checks that government employees do. Twenty-eight employees sued.
The biggest objections arose with the questions about use of and treatment for illegal drugs, and the questions to references seeking any adverse information about the employee’s honesty, emotional stability, general behavior, financial integrity, and similar open-ended questions. The Court held that the government had an interest in assuring a capable and efficient workforce in its own facilities, and the questions were reasonably related to that goal. In somewhat circular reasoning, however, the court stated that the “reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors.” That pervasiveness might also underscore the reasonableness of these scientists’ concern about being the subject of similar questions.
The Court swept aside issues of leaks: “the mere possibility that security measures will fail provides no ‘proper ground’ for a broad-based attack on government information-collection practices.”
The decision may turn out to be interesting not merely for its acceptance of the ubiquity of disclosure of private matters, and the value of opinions of others’ financial integrity. The opinion begins with a disclaimer, that the Supreme Court assumes, without deciding, that there is a constitutional righ to privacy in the form of an “interest in avoiding disclosure of personal matters.”
Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination |
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on July 12, 2010 under Workplace privacy |
The Supreme court has agreed to hear a case arising out of California, but which will surely affect employees in Maryland. In NASA v. Nelson, 28 lower level employees of the Jet Propulsion Laboratory, part of California Technical Institute, some with years of service, objected to NASA’s first-ever demand that they undergo background investigations that delved into personal information. The employees objected in part because they were not involved in classified or restricted projects. Their employer, CalTech, had contracts with NASA to do robotics research. NASA’s decision to require the “National Agency Check with Inquiries” meant that the employees would be probed about such topics as the employee’s use of illegal drugs, sexual practices including homosexuality, adultery, and cohabitation, and mental, emotional, psychological and psychiatric issues. The background check would seek information from references, employers and landlords, about the above, as well as “general behavior and conduct.” The employees contended that their constitutional right to privacy was infringed by the use of this background check, given the non-sensitive nature of their work. If they refused to cooperate, they would lose their jobs.
After losing in the trial court, the employees appealed to the Ninth Circuit, which granted their request for an injunction against the background checks, pending a trial on the issues. In the meantime, though, the Supreme Court agreed to hear the case. Because the case has not been fully developed, the Supreme Court’s acceptance of review may mean that it’s interested in drawing a bright line for use of government background checks on non-government employees.
As a result of the proximity of Washington, D.C., as well as the Maryland presence of the National Security Agency, the Goddard Space Center, the Social Security Administration and the Centers for Medicare and Medicaid Services, many academic and private employers have contracts with the government. The federal government often uses its contracting power to effect broad changes. Affirmative action was instituted as a presidential executive order.
Posted by marykeating on June 19, 2010 under Workplace privacy |
As reported here a few months ago, the Supreme Court was poised to take on a controversy which, depending on the breadth of the opinion, could have ramifications for the vast majority of employees.
The case involved a California SWAT team member who used his department-issued pager for personal use. Although the department policy stated that the pagers belonged to the department, and that the individuals had no right to expect privacy in their use, the reality had altered over time. Quon’s supervisor told him that he must pay for all over limit charges on the pager to avoid an audit. Quon reimbursed the city every month.
The department decided to audit the pager use, since a number of employees were exceeding the limits on their text messaging, leading the brass to think that people were using the equipment for personal use during work hours. In the audit, they discovered that Quon had sent (and received) sexually explicit text messages with his estranged wife and his girlfriend. He was disciplined. Both women, as well as a friend of Quon’s whose personal messages had been intercepted, joined him in the suit against the department for violation of their privacy rights.
The Supreme Court elected not to address directly the extent to which r a public employee enjoys a privacy right in this setting. Under the Fourth Amendment, a person has the right to be free of unreasonable searches and seizures by the government. The Supreme Court unanimously concluded that the search of the pagers’ text messages was acceptable. “Because the search was motivated by a legitimate work- related purpose, and because it was not excessive in scope, the search was reasonable . . .”
The pager user in this case, together with other groups filing briefs on his behalf, urged the Supreme Court to approach the case from the vantage point of the privacy concerns implicated by any employer intruding on an employee’s private messages. But the Supreme Court often (though by no means always) prefers to limit its decision to a narrow point of law facing it. Here, a public employee whose on the job messages were likely to be scrutinized after a typical SWAT team encounter had an insufficient expectation that his messages would not be reviewed.
Private sector employees will not have the ability to complain that they were subjected to an unconstitutional search and seizure when their employers review their email or text messages. With the proliferation of electronic communication, it is more likely that state laws will need to be enacted to address these issues.
Posted by marykeating on January 4, 2010 under Workplace privacy |
The Supreme Court will decide whether a police officer in California has the right to prevent his bosses from reviewing text messages he sent from a department-issued pager. 
Like many employers, the City of Ontario has its employees sign agreements acknowledging that they may not use its computers for personal matters, and have no expectation of privacy in any messages sent. When the pagers were issued, the department stated that the email policy covered the pagers, too. But a different message was conveyed by the department, which told Sergeant Quon and his peers that they could use the pagers for 25,000 characters per month; they would be charged for messages exceeding that limit. Quon exceeded the message limit and paid for the overage.
The department decided that the text volume may indicate that some employees were wasting time, and ordered an audit, including transcripts, of the messages. Quon and another officer objected when the department released the transcripts, showing that Quon sent sexually explicit messages to his wife and another woman. The Ninth Circuit Court of Appeals ruled that the employees had a reasonable expectation that the messages would remain private, given the department’s earlier treatment of pager use.
The Supreme Court may choose to issue a narrow ruling, limited to employers with policies like that of Ontario. On the other hand, it may broaden its discussion of employee privacy rights in general, or government employees as a group. Part of the lower court’s decision related to the Fourth Amendment to the constitution, covering unreasonable searches and seizures. The Fourth Amendment applies to federal and state governments, not to private employers.
Ordinarily decisions in cases accepted at this point are issued by the end of the term, in June. The case is Quon v. City of Ontario. It’s discussed at the SCOTUS blog, whose wiki also has links to the briefs.
Posted by marykeating on October 9, 2009 under Discrimination in employment, Workplace privacy |
Employees these days are flooded with applications. So they have to weed out people somehow. Once you get past the poorly done cover letter, the resume with typos, the lack of relevant experience, there may still be a pile of possibly good candidates. What’s an employer to do?
Well, some are demanding from applicants the right to run credit reports, and to use the results to make decisions. An employer who obtains a credit report without a valid reason or authorization is asking for trouble under the Fair Credit Reporting Act. But what about the ones who have permission?
Bad credit can be a very loose proxy for poor judgment or irresponsibility, of course, but the credit report itself seldom gives a realistic portrayal of the circumstances that explain the credit card load, the repossessed automobile, or the lawsuits by the hospital. Divorces, job loss, and medical catastrophes cause more bankruptcies than anything else, so it stands to reason that they are behind other bad ratings in a credit report. Employers relying too heavily on credit reports will deprive themselves of good workers. They may also, inadvertently or not, exclude disproportionate numbers of women, minorities, and young workers.
Some employers have a reasonable basis for requiring a credit report. Companies with contracts requiring national security clearances may have to be careful of the employee with too much debt, implying a weakness for espionage. (Or is that all left behind with the cold war era?) Employees hired to handle cash or bank accounts may warrant additional scrutiny if their credit reports indicate late payments in their personal lives, or huge debt loads. But as a tool for analyzing which applicant for a job or a promotion would do the job well, the personal credit report is a dull ax, and should be used only with some refining, such as giving the employee the right to explain thoroughly. In fact, under the FCRA, an employee has the right to know that the report’s findings were used against him or her. It is hard to discover if that requirement was ignored, though.
Posted by marykeating on September 29, 2009 under Uncategorized, Workplace privacy |
As I mentioned before, an employee can’t be certain that use of the employer’s computers will remain private. Employers are worried about the loss of trade secrets, such as customer lists and pending contracts. They also are concerned by the amount of nonproductive time that people spend on the computer. A new study just reported that one-third of the large employers surveyed have personnel dedicated to reading outgoing email. A higher proportion report monitoring outbound email. Employers also monitor social websites, and look for evidence of their employees leaking sensitive information, or badmouthing them.
Email is seductively easy, and that delete key seems permanent. Yet deleted files are not too hard for an expert to recover, and outgoing emails can be intercepted and copied if the employer’s computer is set up that way. Personal messages should be sent from home, or from a personal hand-held device.
Even if the employer does not actively monitor outgoing email, employees need to separate their private and job lives. This is more difficult when the employee’s main computer is a company-provided laptop. But I’ve seen many instances when an employee is suddenly terminated, and cannot get access to saved emails, personal financial information, list of favorite websites, and other personal letters or writings. The employer now has access to all of that, and may well decide to take a look. I’ve also seen employees fired for personal use of the employer’s computer systems, especially if the personal use includes dirty jokes, pornography, racist jokes, and similar content that makes the employer nervous, for good reason.
Protect yourself – keep your private life private, and review that company policy manual on computer usage.
Posted by marykeating on August 31, 2009 under Workplace privacy |
The typical modern worker uses email and the internet for lots of work and personal reasons. Sometimes the purposes of those uses blur; certainly the time spent on the internet is often a mixture of personal and professional. It seems almost effortless to multi-task, and we can handle a query for work together with a quick look at the deal of the day on Amazon.com.
The Problem for the Corporation.
But the typical modern corporation grows ever more concerned about its exposure by computer use, and for good reason. Sexual harassment can arise easily with the help of technology. Consider these examples, all from recent cases of mine: a man watches internet pornography on a computer in a cubicle (sound travels); emails with links to risque videos are misaddressed to someone who finds them offensive; email jokes with offensive racial or sexual content make the rounds through a company through that easy “forward to” function. As soon as the company finds out, it needs to act. An effective way to deal with sexual harassment claims can be to fire the harasser. If the entire place is infected, though, the company may instead put strict limitations on the use of its equipment.
The Extent of Corporate Surveillance.
As a result of the dangers of computer misuse, coupled with the incredible array of time wasters available on the internet, some companies have instituted a zero tolerance ban on personal use of the company computer system. Others are more realistic, recognizing that employees who work more than eight hours per day may need to engage in internet shopping, check with the children, or just relax for a few minutes. According to a study by the American Management Association published in 2008, more than half of the employers surveyed monitored and reviewed website connections, almost two-thirds blocked access to certain websites, and a quarter monitored the time spent and the phone numbers called on company phones. A quarter of employers also used video surveillance to counter theft, violence or sabotage.
Even if you are working harmoniously with your employer, the lack of privacy has other impact. Some employers use keystroke loggers, which can measure productive work, but also record passwords, emails, and the like. Even when the level of intrusion is lower, an employee needs to remember that an IT department employee can often read electronic traffic through the company’s system, even when the employee is utilizing his own, non-corporate email account. That is, an employee who logs onto his yahoo email account may inadvertently leave tracks that allows the employer to read the message sent, if not messages received. You have to remember that the corporation is made up of individuals, and they may not all be nice people. If it’s easy to intercept your facebook password, someone may use it to mischief or worse. Your password to your on-line banking account may be revealed to the IT department if you pay your bills online.
Why Employees Need to Monitor their Own Behavior.
A significant percentage of employers who engage in recording their employees’ computer use, phone calls, or movements do not tell employees that they are doing it. Others mention it in the policy handbook, but not otherwise. Under the Maryland Wiretap law, recording workplace phone conversations without consent is legal if the recording apparatus is part of the company’s telephone equipment and there is a business reason for recording conversations, such as evaluating employees’ interactions with customers. This same law probably makes video and audio surveillance illegal, but not video-only surveillance.
Regardless of the degree of corporate tolerance, the employee should keep vigilant in using the employer’s system, remembering that he is a guest in the employer’s house. You may feel at home in your office, but it is a mistake to assume that interaction done quietly on a company’s system will necessarily remain private. Some of my clients, for example, have made the mistake of sending emails to me from their company email account. Notifying a lawyer that you are unhappy about your work treatment is especially problematic. You may forfeit the attorney-client privilege and reveal your private communications to the very company you mean to pursue.
To protect yourself:
- use your own cell phone;
- if the blackberry belongs to the corporation, assume it can read what you put on it;
- assume your email is being monitored — engage in personal email from home;
- don’t search for adult, pornographic, or sports sites at work;
- don’t use your company computer to do your banking or other financial transactions;
- ask if you are being recorded or monitored;
- if you blog or comment about your employer, do not assume that your comments will necessarily stay anonymous (more about this later).
