Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

Editors' Note: Colleen Marshall, a Senior Attorney in Porter Wright's Litigation Department, is also a widely-recognized, award-winning news anchor for Columbus' NBC-affiliate, WCMH – 4. In a detailed interview with Porter Wright's Sara Jodka last week, Colleen reports on the use of social media by employers: "You Can't Delete Your Way Out Of Social Media."

As noted in a recent blog and in the news report mentioned above, 21 states have social media privacy legislation pending. But, social media privacy could soon be governed by an act of Congress.

Representative Elliot Engel (D-N.Y.) just introduced H. R. 537, the "Social Networking Online Protection Act" that he says will protect both employees and job applicants from employer efforts to obtain passwords to private social media accounts. Unlike most laws currently being considered on the state level, Engel's bill would also protect passwords to email accounts. The bill is currently in the House Committee on Education and the Workforce, and makes a critical distinction between private accounts and social networking accounts owned by employers but maintained by employees in the course of employment.

Ohio Senate Bill 45, the Social Media Privacy Protection Act, is the most recent state effort to prohibit employers from gaining access to private electronic accounts, such as Facebook. Ohio 15th District Senator Charleta Tavares (D-Columbus) introduced the bill in an effort to prohibit employers, employment agencies, personnel placement services, and labor organizations from requiring an applicant or existing employee to surrender their personal password to a social media account. Senator Tavares says she views any effort to obtain an employee's passwords as an invasion of privacy. Similar bills were passed in 2012 in six states: California, Delaware, Illinois, Maryland, Michigan and New Jersey.

It is vital to note that none of the proposed legislation, either on the federal or state level, would stop employers from monitoring the electronic profile of employees and applicants by viewing publicly available social media. As we discussed previously, social media is broadly accepted as a legitimate tool to screen job applicants and make judgments about character and personality. Additionally, social media passwords would still be accessible through discovery in instances of litigation or during wage and hour disputes. Social media passwords are proving to be invaluable tools for discovery, especially in the labor and employment context, as explained to me by Porter Wright attorney Sara Jodka in a recent television interview.

Lawmakers are grappling with employers' right to know versus employees' right to privacy. And, as previously noted, you can't always delete your way out of the mess you create on social media. Additionally, some employees use their private electronic accounts as networking tools or to communicate with clients and vendors. Courts are currently being asked to decide whether executives or employers own Linked-in accounts that were created on company-owned computers. Disputes over passwords and twitter accounts are also making their way through the courts.

The outcome of these cases will be noted in future blogs because alerts will be sent to my personal phone, that is linked to professional calendars and email accounts owned by two employers, that are also available on my personal iPad, which is linked to my husband's business account that is connected to his phone and the laptop used for his S-Corporation. Wouldn't that make for interesting discovery?

A list of other states considering legislation to restrict employer access to private social media can be found here. 

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The U.S. Supreme Court today issued its decision in NASA v. Nelson, a case that we previewed back in October.   As you will recall, the respondents in Nelson were a group of California Institute of Technology employees who worked under a contract with NASA at its Jet Propulsion Laboratory.  Pursuant to a Presidential directive, the Department of Commerce required all contract employees with long-term access to federal facilities to complete a standard background check by no later than October 2007.  NASA modified its contract with Cal Tech to reflect this requirement, but shortly before the deadline, the respondents filed their lawsuit.  

Respondents contended that two specific aspects of the background check process violated their constitutional right to “informational privacy.”  Specifically, they challenged a question asking them to state whether they had received treatment or counseling in the last year for illegal drug use and a questionnaire that would be sent to the employees’ references asking open-ended questions about their suitability for federal government employment.

In a unanimous decision (with Justice Kagan not participating), the Supreme Court assumed, without actually finding, that a constitutional right to informational privacy exists.  The Court then upheld the background checks as a reasonable exercise of  the government’s right to “reasonably investigate applicants and employees to aid in ensuring the security of its facilities and in employing a competent, reliable work force.”  Not only were the disputed background check inquiries reasonable, but the Court also found that the respondents’ rights were substantially protected against public disclosure by the federal Privacy Act.

Not surprisingly, the Court was swayed by the fact that the inquiries at issue are “similar to those (that) became mandatory for all candidates for the federal civil service in 1953” and are “part of a standard employment background check of the sort used by millions of private employers.”  With respect to the inquiry regarding treatment or counseling for the use of illegal drugs, the Court noted that it was a reasonable follow-up to the prior question about using, possessing, supplying or manufacturing drugs during the previous year and, importantly, that the government used the response to the “treatment or counseling” question as a mitigating factor.  Similarly, the Court held that the open-ended inquiries made to the employees’ references were “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.” 

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In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.)  As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer.  Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it.  Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims?  Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information?  According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim.  Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.

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While most employment lawyers, myself included, have been focusing lately on the opportunities and risks associated with monitoring new technologies such as social media and GPS devices, the Seventh Circuit reminds us that employers also need to remember that "low-tech" monitoring of employees can result in unexpected liability as well. 

In McCann v. Iroquois Memorial Hospital, which was issued on September 13, 2010, a doctor and a former employee at an Illinois hospital had a closed-door conversation in which they criticized the hospital administration. Without their knowledge, their conversation was recorded by a dictation machine, transcribed, and handed by a third hospital employee to the hospital's CEO. As a result, the hospital revoked the doctor's hospital privileges and banned the former employee from coming on hospital premises for any reason other than to obtain her own or a loved one's healthcare. Both individuals sued the third employee, the hospital, the CEO and the Board of Trustees, alleging that the hospital's use of the tape recorded conversation without either of their knowledge violated the federal Wiretap Act. The plaintiffs contended that the third employee had entered the office during the conversation and, while they were talking, she surreptitiously and deliberately turned on the dictation machine to record their conversation. The defendant employee responded that she interrupted a conversation of theirs once but not on the date of the taped conversation, and suggested that the dictation machine simply was left on by mistake by the doctor who had earlier been dictating medical reports.

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While many human resources managers spend sleepless nights worrying about the negative things employees may be posting on the Internet about them, this post from our sister blog technologylawsource.com reminds us that the nice things they have to say can get employers into trouble as well. Lesson for employers: Make sure your social media policy makes clear that employees who endorse their employer's products or services on-line must disclose their employment relationship so that consumers are not misled into believing that the endorsement is free from bias.

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Facebook has announced that it is implementing new privacy controls beginning today that will give its more than 350 million users more control over the privacy of what they post to their Facebook pages. As reported, Facebook will now give its users the ability to set up lists that, for instance, can place their "friends" into separate groups such as family, high school buddies, and work friends and to choose who to share content with each time they post something. As a result, people easily should be able to choose to share family photos with only family and close friends and other less wholesome postings with whomever they choose. Of course, Facebook also will give users the option of choosing to share a post with "Everyone."

From an employment standpoint, these privacy control changes could make it more difficult for those employers who like to use Facebook as a surveillance tool. For instance, the employee who requested bereavement leave while he actually was on a hunting trip should be able to choose to post comments or photos without sharing them with the boss or co-workers who happen to be Facebook "friends." On the other hand, someone who posts a comment that is disparaging of or detrimental to his employer will have a hard time arguing that the comment was not intended to be widely distributed if he chose to share it with "Everyone" when he posted it.

As with all things social media, only time will tell what impact these changes will have on what we post and what is available for us to see on Facebook.

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Starting in 2002, in an effort to organize employees at a Cintas Corporation facility in Pennsylvania, UNITE union organizers began recording the license plate numbers of vehicles located in the Cintas parking lot.  The organizers then accessed, either directly or through information brokers, state motor vehicle records to identify the employees’ names and home addresses. Ultimately, through this process, which is known as “tagging”, the union obtained the addresses for approximately 2000 workers (or their relatives or friends) and began visiting their homes with an eye toward convincing them to sign authorization cards. 

Unhappy with these tactics, several employees (together with family and friends whose cars also had been “tagged”) filed a class action lawsuit against UNITE under the federal Driver’s Privacy Protection Act.  That Act provides that a “person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall beliable to the individual to whom the information pertains, who may bring a civil action. . . .”

The federal district court found UNITE liable under the DPPA back in 2005, awarded most of the named plaintiffs the statutory $2,500 in damages but deferred consideration of classwide relief.   Finding that the union’s organizing efforts did not constitute a “permissible use” under the DPPA, the Third Circuit, on September 10, 2008, upheld the finding of liability in a decision that can be read here. In addition, the court remanded the case back to the district court to consider whether any of the plaintiffs were entitled to multiple damage awards for multiple DPPA violations and to determine whether to hold a jury trial on punitive damages. 

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