The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.
Continue Reading Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

As we told reminded you last month here, the Consumer Financial Protection Bureau (“CFPB”), the agency that has enforcement responsibility over the Fair Credit Report Act (“Act”), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.
Continue Reading Not So Fast … CFPB Issues Revised Forms for FCRA Compliance by January 1, 2013, First Ones Contained Typos and Other Errors

By now, you should know that the Equal Employment Opportunity Commission (“EEOC”) has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act (“FCRA”) has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau (“CFPB”).
Continue Reading Complying with the FCRA Amendments Before January 1, 2013 – a Step-By-Step Guide

Who owns a social media account that an employee sets up for the purpose of promoting her employer’s business? In Eagle v. Morgan, the federal district court for the Eastern District of Pennsylvania became one of the first court’s to address the issue of ownership of employer social media accounts
Continue Reading In the Social Media Battle Over Who Owns a LinkedIn Account, the Greatest Threat is State Law Claims – How Employers Can Protect Themselves in Light of Eagle v. Morgan as 11 State Law Claims Proceed to Trial

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity.
Continue Reading State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

On Thursday May 24, 2012, State Senator Charleta Tavares of Columbus introduced a bill that would prohibit employers from asking applicants or employees for their social media password. The bill follows a trend started in Maryland and followed by at least 11 other states (plus Congress) that would prohibit this employer practice.

Is this legislation necessary? Well, I was asked this question on 10TV in Columbus last Thursday night and my answer was an emphatic "No!" Though this type of legislation seems to be "trending" nationwide, the examples of employers that actually require their applicants or employees to turn over their passwords are actually few and far between. Indeed, the two employers that were outed by the press in recent years for this requirement — the City of Bozeman, Montana, and the Maryland Department of Corrections (both public employers, incidentally) — were deluged by so much negative press and public outcry that they stopped the practice.

This is not to say that employers don’t have valid reasons for reviewing applicant and employee social media activity. They most certainly do. But in most industries, they don’t have any real need or obligation to look through anything other than what the individual makes public through their chosen privacy settings. In those limited instances where an employer may have a legitimate need to inquire further — think law enforcement, financial sector and daycare settings, for instance — they should be able to ask applicants for access to their Facebook pages. It’s up to the applicant to decide whether to provide it.

In addition to the court of public opinion, there are other reasons for employers not to ask for social media passwords. Identifying, recruiting and retaining qualified employees is difficult enough for employers without creating a "Big Brother" environment that inevitably will turn off applicants and employees who don’t want to work in that kind of environment for fear that petty indiscretions on their Facebook pages will hamper their employment opportunities.

Continue Reading Bill Introduced In Ohio Legislature To Restrict Employer Social Media Password Inquiries

Here is one more potential advantage of using independent contractors rather than employers that so far has flown below the radar screen. According to a federal district court in Wisconsin, the Fair Credit Reporting Act’s disclosure obligations do not apply to independent contractor relationships.
Continue Reading Federal Court: FCRA Does Not Apply To Independent Contractor Relationships

Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my backlog for the month:

According to a Wall Street Journal article, a recent lawsuit seeks a declaration from the New York Department of Labor that putting a GPS tracker on an employee’s family car to uncover time sheet violations was a violation of the state constitution’s guarantee against unreasonable searches and seizures. According to the lawsuit, the monitoring continued during evenings, weekends and a family vacation. This won’t turn out well for the employer.

An Ohio appellate court has upheld a physician’s non-compete agreement that prohibited him from engaging in a hematology or oncology practice in his former employer’s "primary service area." This decision continues the Ohio trend of upholding physician non-competes and Ohio courts have repeatedly rejected the argument that covenants are not enforceable against physicians solely because they impair patients’ choice.

Continue Reading Clearing the Backlog – September