Tag Archives: employer legal advocate

Who Really Owns Your Social Media Content?

A key issue today is who holds the rights to LinkedIn content created and maintained by employees in their professional capacity.  A federal court recently decided that a dispute between an employer and employee regarding ownership of a LinkedIn account should proceed to trial.  Litigation such as this highlights the growing need for businesses to clearly communicate social media policies.

In the federal lawsuit company co-founder and employee Linda Eagle, Ph.D. had established a LinkedIn account and used it to promote the company and herself professionally and also to establish and maintain personal relationships.  After her termination, Dr. Eagle found she could no longer access the LinkedIn account associated with her name.  Individuals searching for Dr. Eagle’s profile were now routed to an account displaying the name and photograph of the company’s new Interim CEO.  This account listed the same honors, awards, recommendations, and connections as Dr. Eagle’s account had.

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A trend worth watching – Illinois becomes the second state to prohibit employers from requesting social network passwords

As reported in General Counselor just recently, Illinois has now become the second state (Maryland was first), to prohibit employers from requesting that employees or prospective employees provide their “passwords or other related account information” to their social media accounts, such as Facebook.  On August 1, 2012, Illinois Governor Pat Quinn signed into law an amendment to Illinois’ Right to Privacy in the Workplace Act, (829 ILCS 55/), providing for this prohibition, which is effective January 1, 2013.

Given this growing legislative trend, employers are well advised to take another look at their social media policies and their hiring and background check practices, to ensure they are compliant with their respective state law.  More legislative developments are expected as social media remains a hotly contested arena in the employment law context.

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Whoa Baby! Managing pregnancy in the workforce.

We’ve all been hearing a lot about Yahoo’s Marissa Mayer lately – and not just because, at 37 years old, she is the youngest CEO of a Fortune 500 company. Instead, much of the buzz is related to the revelation that she is expecting her first child this fall and her intent to work throughout her few weeks of maternity leave. Some have lauded Mayer’s commitment to her new job. Others have decried her naiveté about the demands that a new baby will place on her. We wanted to take a moment to comment on the employment law aspects raised by this discussion.

Although a pregnant employee who promises to minimize her leave and continue working during her leave may sound like an employer’s dream, it’s important to realize that Mayer’s situation is far from typical. She is the CEO and, as a result, has both the financial means and schedule flexibility necessary to oversee the development of both her company and her baby. That is not the case for the vast majority of working mothers.

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The United States Supreme Court swings balance in favor of non-union public employees who object to union political spends

In another significant workplace decision, the U.S. Supreme Court protected the right of agency-shop non-union public employees to refrain from funding the union’s political agenda.  The effects of this decision could impact the amount of money unions have available to allocate to political causes.

In Knox v. Service Employees International Union, Local 1000 (SEIU),  the SEIU represented a bargaining unit of California public employees under an agency shop arrangement.  Under this arrangement, all bargaining unit employees were represented in the collective bargaining process by the union although some bargaining unit members chose not to join the union.  To avoid a “free-rider” situation where non-union employees reaped the benefits of union representation without paying union dues, the union charged non-union employees for “chargeable expenses” – the portion of dues devoted to negotiating, administering and enforcing the collective bargaining agreement.  The chargeable expenses portion of dues was  set each year based on the union’s prior year audited accounting statements.  Non-union employees could avoid non-chargeable expenses – expenses devoted to furthering the union’s political agenda – by annually opting out of contributions for those expenses.

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United States Supreme Court Reins in Department of Labor: Pharmaceutical Reps Deemed Exempt from FLSA Despite DOL’s Position

In a decision released earlier this week, the U.S. Supreme Court rejected the DOL’s interpretation of its regulations regarding outside sales reps that would have brought pharmaceutical company sales reps within the FLSA’s overtime requirements.  In so doing, the Court denied the DOL the usual deference given to agency interpretations of regulations and criticized the agency’s about-face on an issue that has been uncontested for more than 70 years.  This is a win for employers.

In Christopher v. Smithkline Beecham Corporation, two pharmaceutical sales reps sued their employer claiming that they were non-exempt employees under the FLSA and that they were therefore entitled to overtime for the 20 or so hours per week that they claimed they worked over and above the prescribed 40-hour workweek.  In essence, the sales reps – and the DOL – argued that they did not fall within the outside sales rep exemption under the FLSA because they did not actually sell anything.  Instead, their job was to obtain a nonbinding commitment from the physicians in their territory that the physician would prescribe their company’s drugs, rather than a competitor’s, to patients in appropriate circumstances.

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Labor and Employment Workshop on Worker Classification on June 21st

On June 21st, we will present a Labor and Employment Workshop on Worker Classification: How getting it right can protect your business.


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New EEOC advice on use of criminal records in employment

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated Enforcement Guidance for employers regarding the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The guidance tightens the criminal background screening process, but does not prohibit employers from retaining the right to consider criminal reports.

The use of criminal background checks has been a hot button issue with the EEOC over the last several years. The Agency’s concern is that the use of arrest and conviction records in the hiring process and for other employment decisions has a disparate impact in screening out minorities. http://www.eeoc.gov/eeoc/newsroom/release/10-1-09b.cfm

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Hold the NLRB Posting

The fate of the NLRB’s employee rights poster is delayed — yet again. The Court of Appeals for the District of Columbia issued an order on April 17, 2012 delaying the posting until after it hears an appeal on its legality in September 2012.

The history of the NLRB poster is, at this point, somewhat tortured. Through rulemaking, the NLRB imposed a broad requirement that virtually all private sector employers—union and non-union—post a workplace notice advising employees of their rights–such as the right to organize–under the National Labor Relations Act.  Originally scheduled for posting in November 2011, the NLRB first delayed the notice until January 31, 2012 to give private sector employers more time to understand and comply with the requirement. Then facing legal challenges from various industry groups, the NLRB again delayed the poster until April 30, 2012. Click here to view our post, NLRB again delays union rights posting requirement.

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Personal emails on work computers – Are they fair game for employers?

In the continuing struggle between an employee’s privacy rights and the employer’s right to access company provided computers and other electronic devices, the Illinois Court of Appeals recently weighed in with regard to a matter involving the alleged violation of the Stored Communications Act (SCA), 18 USC 2701, et seq.

In Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 Ill. App (2d) 101257, plaintiff, the employer’s former food director, sued her former employer and two of its employees for “intentionally” accessing her personal email account and reviewing personal emails despite the fact that the account was accessed from the employer’s computer.  At the time in question, plaintiff was out on a disability leave related to sexual harassment claims she had previously made, and the employer, through its employees, accessed plaintiff’s computer and her emails to ensure that no work-related emails and orders were going unaddressed.

In reviewing plaintiff’s work computer, however, it was discovered she maintained a work-related account through Comcast, and a separate personal account through AOL, both of which were located on her work computer.  The employee reviewing her emails admitted to reviewing both the work account and the personal account, and ended up printing out 36 emails that were personal in nature, and unrelated to work in any manner.  She then shared these 36 emails with her supervisor.  The deposition testimony of the employee defendant also revealed that no work emails were printed.

The employer, relying principally on its computer usage policy that clearly stated that employees had no expectation of privacy in its technology resources, argued that the employees at issue did not intentionally and without authorization access plaintiff’s personal email account because they innocently came upon the personal emails while conducting a legitimate business search.

The appellate court disagreed.  It found the fact that employees knew plaintiff’s work account was Comcast and not AOL, the amount of time spent reviewing the personal emails, and the fact that personal emails were the only ones printed created a fact issue as to whether plaintiff’s personal email account was intentionally accessed without authorization.

Employer Takeaway

This case shows that despite robust computer usage policies and disclaimers regarding expectations of privacy, employers still need to be careful in accessing and reviewing employee email.  Conferring with counsel beforehand is advised when there is a question as to whether communications are personal or business in nature irrespective of the policies in place.

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EEOC reports provide insight for employers

The Equal Employment Opportunity Commission (“EEOC”) had a busy month in January 2012 issuing two key reports about agency activity.   Employers should take note of what the EEOC had to say in those reports for insight into where the Agency’s been and where it’s going.

Report on FY 2011 EEOC statistics

The EEOC released its FY 2011 enforcement and litigation statistics revealing that 2011 was a record year for charges of discrimination.  EEOC charges hit an all-time high with 99,947 charges filed.  Following FY 2010’s trend, the largest number of charges– 37.4%–were based on claims of retaliation under all EEOC enforced statutes.  Charges were also up for sex, disability, and age discrimination.  The report also revealed that merit lawsuits brought by the EEOC under the Americans with Disabilities Act nearly doubled in 2011—the highest percent increase of any category.

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