That's Private? The Employee Online Privacy Act of 2014

Are there any two words that don’t belong in the same sentence more than “online” and “privacy”? Online activity, especially social media posts, are by their nature intended for a broad audience.  But that didn’t stop the Tennessee legislature from passing the “Employee Online Privacy Act of 2014” which was signed into law by Governor Haslam earlier this year.
This new law could have an impact on employers who check an employee’s or applicant’s online activity before making a hiring, promotion, or other employment decision.

The Employee Online Privacy Act prohibits employers, including state and local government entities, from requesting or requiring an employee or an applicant to disclose online activity, like email, Facebook, and twitter accounts. Specifically, the new law prohibits employers from doing the following:

1. Requesting or requiring an employee or an applicant to disclose a password that allows an employer to access the employee’s or applicant’s personal internet account;
2. Compelling an employee or an applicant to add the employer to his or her list of contacts associated with a personal internet account;
3. Compelling an employee or an applicant access a personal internet account in the employer’s presence in a way that enables the employer observe the contents of the employee’s or applicant’s personal internet account; or
4. Taking an adverse action, failing to hire, or otherwise penalizing an employee or applicant because of a failure to disclose information or take an action specified above.

A "personal Internet account" is an online account used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer. It doesn’t include an online account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.

In addition to setting out prohibitions, the Employee Online Privacy Act also identifies actions that employers are not prohibited from taking. Specifically, under the new law, employers are explicitly permitted to:

1. Request or require an employee to disclose a username or password required to access an electronic communications device that was provided by or paid for (in whole or in party) by the employer, or an account or service that was provided by the employer that was obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes;
2. Discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal internet account;
3. Conduct an investigation or require an employee to cooperate in an investigation in certain situations;
4. Restrict or prohibit an employee’s access to certain websites while using equipment or systems provided by the employer;
5. Monitor, review, access, or block electronic data stored on equipment or a network provided by the employer;
6. Comply with a duty to screen employees or applicants before hiring or to monitor or retain employee communications as required by federal or state law, for purposes of employment in law enforcement, or for purposes of an investigation into law enforcement officer conduct performed by a law enforcement agency; or
7. View, access, or use information about an employee or applicant that public or is available in the public domain.

The law has teeth. An employee or applicant who alleges that an employer has violated the Act may file a civil action against an employer for injunctive relief and may recover up to $1,000 in damages for each violation against the individual plus reasonable attorney fees and court costs.   Additionally, the attorney general may file a civil action against an employer on behalf of an employee or applicant. If the court finds a violation, it must award the state up to $1,000 for each violation found.

The law also specifically states that it does not create a duty for employers to search or monitor the activity of a personal internet account, and states that an employer shall not be liable for a failure to request or require an employee or applicant to allow access to an employee’s or applicant’s personal internet.

The new law is effective January 1, 2015.

Next year, employers will need to exercise additional caution when reviewing an employee’s or applicant’s online activity when making employment decisions.  It is significant that the law does not prohibit employers from accessing publicly available information.  However, employees and applicants are likely to misinterpret the scope of the law’s restrictions, which could result in additional headaches for employers.

Before the law becomes effective, employers should examine their policies for accessing online information in connection with making employment decisions to ensure that the employer is following best practices that not only comply with the law but also minimize the employer’s exposure to litigation risks.

Experience Counts

EXPERIENCE COUNTS


Most of the employees I see coming to this country for professional jobs for my client employers want to become Lawful Permanent Resident, and, eventually, U. S. Citizens. It is their goal not only to work here, but also to “live the dream”. One of the first questions I get when filing for their L or H status is: “When can I get my ‘green card’?”

For non-immigrant workers, that path to a green card often begins with the PERM Process, or the Permanent Labor Certification Process. This is a process that must be initiated by an employer for an employee, and often employees will make that a condition of their employment during their hiring process. A benefit of this process is that it takes into account the derivatives listed on the non-immigrant petition when the employee came to work in the United States. Therefore, within one process, a non-immigrant worker, his/her spouse, and their minor children can all get their “green cards” at once. Another benefit of this process is that if the filing is done within a certain time period, non-immigrant workers in H-1B status can extend their stay past the normal expiration date for a non-immigrant worker in H-1B status. This is particularly important for those workers from one of the countries that have a waiting period before the actual lawful permanent resident application (Form I-485) can be filed.

One of the most important steps in this process is the proof that the beneficiary of this process is qualified for the job for which the recruitment was done and the Labor Certification was issued. An important part of that proof is the experience letter, which is the best and most useful documentation of the experience of the employee to be sponsored. An experience letter is a letter from your previous employer(s) showing not only that the applicant has experience, but also that the applicant has the relevant experience for the job being offered. Unfortunately for the applicant, that experience shouldn’t come from their current employer, even at another location.

As we work with the employers to obtain lawful permanent resident status for one of their employees, we will assist in the preparation of the experience letter to be sent to a previous employer. The reason for this is that experience letters are more than just a matter of detailing that an employee worked somewhere and the dates of that employment, but also what that employee did while there to show that the employee has the experience required for the position. Experience letters need to be on the letterhead of the previous employer, contain the name and contact information for the person signing the letter, the title and relationship to the employee of the person signing the letter, the start and end date of the employee’s employment, the title of the employee while at that company, whether the position was full or part-time, and a brief job description of the duties performed by the employee while at the company. The job description should contain duties and tasks which are relevant to the position that employee has, or will have, with the employer who is sponsoring that employee for their lawful permanent resident status. All of these elements should be in the experience letter as proper evidence of the employee’s experience and/or training. If any of these elements are missing or lacking, USCIS can, and most likely will, reject the letter and conclude that the petitioner has failed to prove that the employee has the required experience or training.

These experience letters must be from a person who has direct knowledge of the actual work the employee performed while working for the previous employer. This also needs to be a person who directed that work, not just a co-worker. The best person to provide that experience letter will be a manager that was directly over the employee or their supervisor, either of whom is still working for the previous employer. Other alternatives are managers or supervisors further up in leadership chain of the company who have managerial or supervisory responsibilities over the former employee’s direct manager and/or supervisor and are still with the previous employer. Finally, if there are no managers or supervisors that were there when the employee was at the previous employer, then the letter can be signed by someone in the human resources department to confirm the dates of hire and the job duties for the position the previous employee was in.

However, some of the employee’s previous employers may have been acquired by another company in a merger or buyout. This can create problems, but, with enough forewarning, steps can be taken to get a previous manager or supervisor, who is with the new company, sign an experience letter while providing USCIS enough information regarding why the information is being provided by the a new company. This will allow USCIS to determine that the information from this new company is actually the same as if it had come from the previous employer. This process, however, takes more time and can delay the filing of the I-140 if not started early in the PERM Process.

Another problem is when the previous employer is no longer in business. Sometimes, if an employee is aware of his employer’s financial difficulties and is concerned over that employer’s viability to continue to do business, it is advisable to have that employer write an experience letter, detailing all of the information above, very shortly after the employee obtains new employment so that the employee is not stuck without the very valuable experience letter if the company closes. When a company dissolves, the records are often lost or destroyed and there is no way to obtain an experience letter from that previous employer. However, all is not lost. USCIS has allowed for former managers or supervisors who are with new companies to write experience letters on behalf of a former employer since it is impossible to obtain an experience letter from that previous employer. The requirements of the experience letter do not change, but the wording has to address why the letter is not from the previous employer, but rather from a different company where the employee had no previous contact and detailing that the previous employer is no longer in business.

While experience letters are not needed until the I-140 petition filing stage, we get them as soon as possible in the PERM Process. Experience letters allow us to confirm exact dates of employment for the Labor Certification Application; to verify experience needed for the job being recruited for to make sure that the employee has the required experience for the job; and to determine if additional steps are going to have to be taken to get the experience letter that is needed due to some of the scenarios discussed herein. The experience letter relates to the entire PERM Process; and experience counts.

Jeannette S. Tysinger, Esq.

Senate To Consider Employment Non-Discrimination Act

On Monday, Senate Majority Leader Harry Reid (D Nev.) said that the Senate will consider the Employment Non-Discrimination Act (ENDA) before Thanksgiving.  The ENDA has been introduced in Congress numerous times over the years, but to date, has failed to pass.  If made law, the ENDA would prohibit employers from discriminating against employees based on sexual orientation and gender identity -- in much the same way that Title VII of the Civil Rights Act now prohibits discrimination based on race, color, religion, gender, and national origin.

But employers shouldn't assume that just because federal law does not currently include protections for lesbian, gay, bisexual and transgender (LGBT) employees, those employees do not already have some protection under Title VII. 

 

Several court decisions have extended Title VII's reach to LGBT employees where discrimination can said to be "because of the employee's gender."  Mainly, those court decisions have found that a company that discriminates against someone because his or her behavior does conform to gender stereotypes, violates the prohibition on gender discrimination under Title VII.  For example, a female employee who is discriminated against because she acts masculine, or a male employee because he is effeminate, could potentially have a claim for gender discrimination.  Similarly, taking an employment action against a male employee because he wears make up, or against a female employee because she does not, could now give rise to a gender discrimination claim.

In addition to federal law, many state and local governments have passed laws prohibiting discrimination against employees based on sexual orientation and/or gender identity.  Therefore, even in the absence of ENDA, employers must consider any applicable state or local law.

Employers most often encounter issues in this area of employment law when it comes to dress codes and grooming or appearance standards.  Rules or policies that are gender-specific or that rely on gender stereotypes should raise red flags with employers.  Even if the ENDA does not become law during this Congressional session, an employer's compliance efforts should include a review of policies and rules to confirm that they do not run afoul of courts' recent interpretations of Title VII.

Tennessee "Bring Your Gun to Work" Bill Fails to Pass

The Tennessee Legislature adjourned on Tuesday without taking any action on a bill that would have allowed employees with a valid handgun carry permit to store a firearm in their employer's public access parking lot, provided it is in a locked vehicle and in a glove box or compartment not visible from outside the vehicle.  At least for now, private employers may lawfully prohibit their employees from bringing firearms onto company premises.  It is likely, however, that a similar bill will be introduced again in the next legislative session.

D.C. Court of Appeals Issues Injunction Against NLRB Notice Posting Rule

Today, a three-judge panel of the United States Court of Appeals for D.C. issued an injunction against implementation of the NLRB's new rule requiring employers to post a notice regarding employee rights under the National Labor Relations Act.  The NLRB's Notice Posting Rule was scheduled to go into effect on April 30, 2012.  The effective date of the Rule is suspended at least until the Court of Appeals issues its decision as to whether the NLRB lacked the authority to implement the rule.  The injunction comes on the heels of an opinion from the United States District Court in South Carolina that the NLRB did not have the authority to promulgate the notice posting requirement.

The Court of Appeals has established an expedited briefing schedule for the case.  Oral argument is scheduled for September 2012.

A copy of the Court of Appeals order is available here.

DOL To Issue New FMLA Regulations for Military Cargiver Leave and Airline Flight Crews

The U.S. Department of Labor announced that it is issuing a notice of proposed rulemaking to implement new amendments to the Family and Medical Leave Act that would expand leave provisions for military caregivers and create eligibility provisions unique to airline flight crews.  The DOL's news release is available here.

With respect to military caregiver leave, the current law covers only family members of service members who are "currently serving."  The DOL's proposed new rules would extend military caregiver leave to family members of veterans for up to five years after the veteran leaves the military.    Additionally, the DOL's proposed new rules expand an employer's obligation to grant FMLA leave to military caregiver by requiring employers to provide "qualifying exigency" leave to employees whose family members serve in the armed forces on a full time basis. Currently, the law applies only to families of National Guard members and reservists.

For airline flight crew employees, the DOL's proposed rules expand the situations in which an employer must grant leave.  The rules would create a special hours of service eligibility requirement for flight crews and specific provisions for calculating the amount of FMLA leave used by flight crew members.

NLRB's General Counsel Issues Another Memo on Social Media Cases

The Acting General Counsel of the NLRB announced today that he has issued a second memo regarding the interaction of social media policies and the National Labor Relations Act.  According to the Board, the General Counsel's memo is intended "[t]o help provide further guidance to practitioners and human resource professionals" regarding the lawful limits of social media policies.

According to the Board's press release (available here), "The report underscores two main points made in an earlier compilation of cases: 

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."

The Memo discusses 14 cases, seven of which involve questions about employer social media policies. The Board found that five of the seven policies were unlawfully broad, and only one was found to be lawful after it was revised.  It is clear that the Board is taking a narrow view of what social media policies may prohibit. 

For example, in one case, an employer maintained a policy prohibiting employees from "disparaging" the employer in any media. After an employee was notified that she was being transferred to a less desirable position, she "posted a status update on her Facebook page . . . [u]sing expletives, she stated the Employer had messed up and that she was done with being a good employee." The employer discovered the comments and terminated the employee pursuant to its social media Policy. The Board found that the policy and the employee's termination were unlawful.

The General Counsel's Memo suggests that the Board will apply its traditional standards for employee protected activity to employee activity on social media sites.  However, the traditional standards for employee's "water cooler talk" ignores the difference between private, oral communications in the workplace, from written statements available to the general public on the Internet, which can be significantly different from the employer's point of view.  It remains to be seen whether the Board will modify its standards to take into account the differences between social media and in-person conversations.  Until it does, employers should review their social media policies to ensure the policy does not run afoul of the Board's current interpretation of the NLRA.