Privacy and Data Security Archives - Page 14 of 23

Recent NLRB Activity Zeroes In On Social Media Policies

by McDermott Will & Emery | Apr 20, 2011 | Employment, Labor, Privacy and Data Security

by Stephen D. Erf, Heather Egan Sussman, Christopher Scheithauer and Sabrina E. Dunlap

The law is not new – it’s just being applied to our newest forms of communication: Twitter, Facebook and others. Even the legal framework is relatively straightforward: Section 7 of the National Labor Relations Act (NLRA) protects “concerted activities,” which include circumstances where employees seek to “initiate or induce” group action for “mutual aid or protection.” In today’s workplace, activities such as blogging, or posting messages on social networking websites, can be considered concerted activity, and unless the activity falls within one of the exceptions to the NLRA’s protections (e.g., confidentiality breaches, extreme disloyalty, etc.), the law limits an employer’s control over what employees may write and post.

In one recent case, the National Labor Relations Board (Board) accused American Medical Response of Connecticut Inc. (AMR) of violating Section 7 when it terminated an employee for allegedly criticizing her boss on Facebook. In its complaint against AMR, the union argued that the company had been interfering with, restraining and coercing employees in exercising their protected rights under Section 7 of the NLRA. The parties reached a settlement on the eve of trial, which required AMR to clarify and narrow its policy.

Even more recently, the Board’s Manhattan office has announced plans to file a complaint against Thompson Reuters over its Twitter policy. In 2010, an employee reportedly tweeted in response to a management inquiry, “One way to make this the best place to work is to deal honestly with [union] members.” The Board claims the company then improperly disciplined her pursuant to the Twitter policy by chastising her for making the statement.

While we will have to wait for the complaint to see exactly what the Board takes issue with (and the company denies the allegations), this case involves a union, so it is easier for an employer to see the potential for NLRA landmines in that workplace. But what many employers do not realize is that Section 7 applies equally to nonunionized workforces.

In the wake of these NLRB complaints, what does this mean for all U.S. employers? If you have not already done so, you should be reviewing your social media policy:

You CAN prohibit employee’s use of social media during work time.
You CANNOT include a blanket prohibition on critical comments.
You CAN prohibit disparaging comments about company products or services.
You CANNOT ominously threaten sanctions or termination for activities that could arguably be protected.
You CAN take a tone that focuses more on using good judgment and common sense.

In addition, an overly broad or vague policy alone may violate the NLRA, so you should consider taking steps now to narrow and clarify your policy to avoid becoming the next Board target.

Final EEOC Regulations for the ADA Amendments Act, Published on March 25, 2011

by Jackie Sinn | Apr 5, 2011 | Employment, Privacy and Data Security

by Heather Egan Sussman and Stephen Erf

The Equal Employment Opportunity Commission (EEOC) recently released the final regulations intended to simplify implementation of the Americans with Disabilities Act Amendments Act (ADAAA). In the ADAAA, which went into effect on January 1, 2009, Congress directed the EEOC to revise its Americans with Disabilities Act (ADA) regulations to conform them to changes made by the ADAAA. Though the ADAAA and these final regulations do not change the definition of a covered “disability” under the ADA—a physical or mental impairment that substantially limits one or more major life activities—the ADAAA and the final regulations made significant changes to how those terms are to be interpreted. In particular, the regulations set forth a list of principles to guide the determination of whether a person has a disability, and provide that the definition should be construed as broadly as possible under the law. The most significant changes to the ADA are as follows:

The principles outlined in the final regulations provide that an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.
“Mitigating measures” such as medication and assistive devices must not be considered when determining whether someone has a covered disability – so, if an employee’s condition would qualify without medication or assistive devices, then person should be considered to have a covered disability (interestingly, this does not include the ordinary use of contact lenses or eyeglasses).
Physical and mental impairments that are episodic (such as epilepsy) or in remission (like cancer) are disabilities if they could be “substantially limiting” when active.
The final regulations explain that the term “major life activities” includes “major bodily functions,” such as the immune system, normal cell growth, and brain and endocrine functions.

The final regulations state that the question of whether an individual meets the definition of disability should not demand “extensive analysis,” and that the focus in cases brought under the ADA should be whether covered entities have complied with their non-discrimination and reasonable accommodation obligations and whether discrimination has occurred, not whether the individual meets the definition of a covered disability. The intended effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA, though whether that is true in practice, and how the EEOC chooses to enforce the changes, remains to be seen.

Hiring in Massachusetts? Criminal History Questions Must Be Removed from Job Applications by November 4, 2010

by McDermott Will & Emery | Nov 1, 2010 | Employment, Privacy and Data Security

by Heather Egan Sussman and Sabrina Dunlap

The Massachusetts Governor recently signed into law an act reforming the Commonwealth’s criminal offender record information system. Under this new law, most Massachusetts employers will now be prohibited from asking about criminal history on an initial written job application. Massachusetts is among a growing number of states to "ban the box" on job applications.

The most significant provisions directly affecting Massachusetts employers are as follows:

The ban-the-box provision is effective November 4, 2010. As of that date, employers are prohibited from asking job applicants about criminal history on the initial written job application with only limited exceptions.
The law creates new “notice” requirements for employers effective February 6, 2012. Under these new requirements, an employer in possession of criminal record information about an applicant must provide the information to the applicant prior to questioning the applicant about it. In addition, similar to the requirements of the federal Fair Credit Reporting Act, if an employer decides not to hire an applicant in whole or in part because of the applicant’s criminal record, the employer must provide the applicant with a copy of the record.
The “policy” provision of the new law is also effective February 6, 2012. This provision requires employers that conduct five or more criminal background investigations in a year to implement and maintain a written criminal record information policy.
The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual, $50,000 for an entity) for those who request or require a person to provide a copy of his or her criminal record except in situations authorized by law. In addition, the law prohibits harassment of the subject of a criminal record, punishable by imprisonment of up to one year, or a fine of not more than $5,000.

Employers that plan to hire in Massachusetts should reexamine application forms and employment policies to ensure compliance with the new law.

For more information and analysis on the new law, click here.