WORKPLACE BEHAVIOR

AND PRIVACY ISSUESNBI ─ Philadelphia

Presented by:Thomas Benjamin “Ben” Huggett

Littler Mendelson, P.C.

February 18, 2015

Thomas Benjamin HuggettLittler Mendelson, P.C.

1601 Cherry Street, Suite 1400

Philadelphia, PA 19102

276.402.3035

tbhuggett@littler.com

Presented by:

Workplace Behavior and

Privacy Issues: Overview

• Employee surveillance

• Searches, monitoring

• Dress code, personal

appearance

• Employee testing

• Workplace violence

• Off-duty behavior

and activities

“Reasonable Expectation of Privacy...”

• Pennsylvania Courts give broad latitude to private employers, following the principle that “the right of an employer to run his business according to his own beliefs and judgment may not be restricted unless compelling reasons to the contrary exist.” Hayes v. Unemployment Compensation Board of Review (PA Supreme Court 1978).

• The Declaration of Rights in the Pennsylvania Constitution protects citizens against the government’s power. They do not protect one private citizen from another, and do not protect an employee from an employer.

Pennsylvania Law

• In the case of Borse v. Piece Goods Shop, Inc., 963 F.2d 611, (3d Cir. 1992), the Court found that under Pennsylvania law a claim may exist against an employer asserting a tortious invasion of privacy.

• According to the Restatement (Second) of Torts § 652B, the tort of intrusion upon seclusion is:– One who intentionally intrudes, physically or otherwise, upon the

solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

• The Court added to the Restatement's standard, stating that a party would only be held liable when the "intrusion is substantial" and "highly offensive to the ordinary reasonable person.”

• The court set forth a simple balancing test in order to determine whether the invasion of privacy was substantial and highly offensive, weighing the employer's interest in keeping the workplace drug-free against the employee's privacy interest.

Employee Surveillance in

the Workplace

• Question: May an employer

install a secret video

camera in a semi-private

office to try to find out who

is engaging in improper

Internet use?

• Answer: Probably, yes.

Practical Pointers re Surveillance

• Spell out employer rights and

define employee expectations

in written policy

• Have employees read

and acknowledge

the policy

• Consider time, place,

scope, nature of

employment

• No audio

• Think twice

Surveillance of Union Activity

• Whenever employees, unionized or not, meet or discuss union organizing or union activities, wages, benefits, or conditions of employment, their activities are protected under the National Labor Relations Act (NLRA)

• The NLRA prohibits employers from:– Visually monitoring employees’ union activity

– Giving the impression of surveillance if it improperly interferes with union activities

– Photographing or videotaping employees as they engage in protected concerted activity absent proper justification

Workplace Searches: Reduce

Employee Expectations of Privacy

• Everything is “Subject to Search”

– Inform employees that backpacks, briefcases, purses,

furniture, lockers, etc. are subject to search

• Keep the keys!

• Identify the purpose of the search

– An employer that has a legitimate

business reason for a search

typically may prevail if sued

for invasion of privacy

Social Media Use –

Types of Misconduct

• Employee Morale/

Gripe Sessions

• Harassment/Title VII

• Defamation

• Disclosure of Trade

Secrets

• Misuse of Intellectual

Property

• FTC Violations

• Excessive Use

(Slacking)

• Violations of Other

Policies

• Pornography

• Violence

• Security Breach

• Union Organizing

The Legal Limits

1. Privacy

2. 1st and 4th Amendments

3. Stored Communications Act (“SCA”)

4. Protected Concerted Activity - NLRB

5. Lawful Off-Duty

Conduct

6. Unfair Business

Practices

E-Terminations

• 30% of employers have terminated employees for improper Internet use:

– Sexual, romantic, or pornographic content (96%)

– Game sites (61%)

– Social networking sites (50%)

– Entertainment sites (40%)

– Shopping/auction sites (27%)

– Sports sites (21%)

Text Message Monitoring?

• U.S. Supreme Court

held unanimously that

employers, under

certain circumstances,

could review employees’

text messages

City of Ontario v. Quon (U.S.

Supreme Ct. 2010)

Reasonableness of Search

1. City had a legitimate business justification for the search

– Was the 25,000 character text message limit too low?

2. Search was not excessive

– Limited to relevant sampling of two months

– Redacted texts sent during non-working hours

• Holding: Because the search was reasonable, the City did not violate Quon’s Fourth Amendment rights

Quon Court: E-Policies Really Matter

• “[E]mployer policies concerning

communications will of course shape the

reasonable expectations of employees,

especially to the extent that such policies

are clearly communicated”

Personal E-mail Accounts

• A report published in July 2012 found that

workers spend almost 1/3 of all of their

work time (28%) checking or responding

to e-mail

“Password Protection Laws”

• Generally prohibit employers from asking applicants or employees for personal social media log-in credentials

– 18 states: AR, CA, CO, IL, LA, MD, MI, NH, NJ, NM, NV, OK, OR, RI, TN, UT, WA, WI

– Bills pending in 22 states, including: AZ, CT, GA, HI, IA, KS, LA, MA, ME, MN, NC, NE, NH, NJ, NY, OH, OR, PA, RI, TX, WI, WV

Substantial Variations

• All but two states more broadly define prohibited

conduct: NM and UT

– Prohibited conduct = shoulder surfing, mandatory change in

privacy settings, friending

• All but five states define protected accounts to include

any online account: IL, NJ, NM, OR, NH

• Exception For Workplace investigations:

– Personal social media relevant to the investigation: AK, CA, LA,

MI, NJ, OK, TN, UT, WI

– Investigations into misappropriation or securities fraud: CO, MD,

WA, OR

– No express exception: IL, NV, NM

NLRB’s Increased Focus on

Social Media

• Section 7 of the NLRA has always protected employees’ right to engage in “concerted activities” for mutual aid and protection

• In recent years, the NLRB has increasingly focused on employment actions allegedly made in response to employee activity in social media

• Has also released several memoranda on social media policies

• Chairman Mark Gaston Pearce: the NLRB is not looking to create new standards, but to keep its jurisprudence up to date with the evolution of the workplace

What is Protected?

• Section 7 applies equally to traditional offline communications and communications over social media – a Facebook post is can be afforded the same protection as water-cooler talk

• Section 7 applies even if the workplace does not have any union employees

– Conduct that speaks to terms and conditions of employment

• Construed very broadly

– Speech that incites or induces co-worker participation / comment

WHEN CAN AN EMPLOYEE BE DISCIPLINED?

Don’t Overreact to “Harassment”

• Hispanics United of Buffalo, Inc. v. Carlos Ortiz (2012)

• Employee posted on Facebook about co-worker not doing enough for client relations and invited co-workers to support and “like” her status

• 4 co-workers responded with comments – management fired all 5 for “bullying and harassing” the colleague criticized

• NLRB found the Facebook comments to be concerted activity for “mutual aid and protection”

Expletive-Laden Posts?

• Pier Sixty LLC (2013)

• In reaction to a labor dispute, a food

server took to his Facebook page

and posted “[Boss] is such a

NASTY MOTHER F*****R . . . F**k

his mother and his entire f*****g

family!!! . . . Vote YES for the

UNION!!!!!”

• NLRB found this to be protected,

concerted activity, and ordered the

employee reinstated

Is there ANY limit?

Electronic Media Usage Policies

1. Allow non-business e-mail but warn employee that such e-mail will be monitored in the same way as business e-mail

2. Specifically warn employees that copies of e-mail sent through a personal e-mail account could be stored on company equipment and will be monitored

3. Inform employees that corporate electronic resources cannot be used to consult an attorney except in furtherance of the company’s interests

Electronic Media Usage Policies

4. Obtain executed acknowledgement from each employee

5. In-house and/or outside counsel should consult local ethical rules and relevant jurisprudence on waiver of attorney-client privilege before reviewing any potentially privileged communications between an employee and her attorney discovered on any of the employer’s electronic resources

6. Be careful with any adverse employment action based on such communications.

Employer Access to Employee Sites

• Unrestricted profiles are usually fair game

• Do not use false pretenses to access a restricted social networking profile

• If a “friend” provides access to the profile, confirm that the “friend” is a user

• Document that the “friend’s” assistance is voluntary

• Supervisors: choose your “friends” carefully!

E-Rules of Thumb

1. If it’s out in public, it’s probably fair game

2. Adopt/enforce broad electronics policy that includes social media activity

3. Do not use pretext to access password-protected content

4. Avoid surveillance of protected concerted activity

5. Check lawful off-duty conduct laws before taking adverse action

E-Rules of Thumb

6. Consider requesting consent before

conducting e-review

7. Focus on legitimate business needs

8. Treat similarly situated employees

consistently

9. Be mindful of privilege issues

10.Inform and train

11.Dignity, dignity, dignity

Dress Code and Personal Appearance

• Dress and grooming policies are generally

lawful unless they:

(1) discriminate on a basis

that is protected, or

(2) do not allow religious

accommodation

Dress codes may not:

• Infringe on religious beliefs

• Discriminate based on disability

• Encourage sexual harassment

• Infringe on rights protected under FEHA or Title VII

Challenges to Employer Dress Codes

• Common challenges include charges that the dress code discriminates on the basis of:

– sex or gender

– race

– ethnicity and national origin

– disability

– religion

Business Need?

• Pennsylvania law has long permitted employers to adopt dress, appearance, and grooming standards based on business need

• Differences in business attire between men and women based on widely accepted social norms or customs, and the need to present a professional image, are permissible where there is a clear, non-discriminatory rationale

Cross-Dressing

• In 2004, FEHA added as a protected class an employee whose actual sex or the perception of the employee’s sex, identity, appearance, or behavior, whether or not it is the same as that traditionally associated with the person’s birth sex

• This amendment was intended to protect transgender employees and their right to appear or dress consistent with their identity

Dress Code Policies

• Never require individuals to dress or groom

themselves in a manner inconsistent

with their gender identity or expression

• Always ensure that standards of dress serve

a reasonable business purpose and do

not discriminate or have a discriminatory

impact on the basis of an individual's sex or

an individual's gender identity or expression

Tattoos and Body Piercing

• Customarily female employees may wear pierced-ear jewelry as part of their work attire

• Increasingly common to see ear jewelry for men as well as multiple earrings, body piercing, rings, and tattoos

• Currently, tattoos and body piercing, absent implication of a protected class, are not recognized as indications of religious or racial expression nor are they generally protected under discrimination laws; thus, employers may regulate and, within reason, standards may differ between men and women

Practical Tips

• Make sure your dress code is reasonable,

nondiscriminatory, and tied to business needs and

purposes, e.g., maintaining employer’s image,

promoting productive environment, fostering

respect, compliance with health/safety standards

• Include procedures for requesting accommodation

or exception for appropriate reasons

• Publish dress code to employees and applicants

• Apply the dress code consistently and equally

• Discipline, where unavoidable, per dress code

should also be applied consistently and uniformly

Employment Tests: Guiding Principles

• Test must meet legitimate business necessity

• Must measure what they are supposed to measure

• No disparate impact

• Be aware of Title VII, ADA, ADEA

• Affirmative action requirements for federal contractors

• Other nondiscrimination laws (e.g., regulating

background checks)

36

Americans with Disabilities Act

37

• Tests/selection procedures cannot be used on the basis of disability unless they are job-related and consistent with business necessity

• Example: Not all cognitive, skills, physical agility or job knowledge tests pass muster

Integrity Tests

• Use with caution

• Should not feature questions regarding

– Religious beliefs or affiliations

– Beliefs or opinions on racial matters

– Political beliefs or affiliations

– Sexual behavior

– Various lawful activities

• Check with legal counsel for compliance

38

Physical Capability Tests

• Requirements:

– Job-related

– Job necessity

– Must not measure

extraneous characteristics

39

To Drug Test or Not to Drug Test?

Considerations:

• Type of job

(e.g., safety sensitive?)

• Type of individual

(applicant v. existing

employee)

• Routine or random?

• Testing procedure

• “Reasonable expectation of privacy”?

Summary

• Test permissible if measuring skills and

knowledge needed to perform essential

job functions, consistent with business

necessity

• Physical and Personality Tests – ADA

• Ensure Test Validity

41

Violence in the American Workplace

• U.S. has the highest number of incidents of interpersonal violence per capita of any nation not engaged in civil war

• U.S. has a rate of violence greater than four times that of any other nation

• In 2003, gunshots became the number one killer in the U.S. workplace

• One in five high school students carry weapons (an estimated 270,000 guns are carried to school daily)

Perpetrators of Workplace Violence

• Violence by strangers

• Violence by customers/clients

• Violence by co-employees/

former employees

• Violence by family

members or

personal relations

Workplace Violence: Legal Issues

• Abusive, potentially violent

employees may have diagnosed

mental illness

• Strict EEOC Guidelines

concerning psychiatric disabilities

• Legal prohibitions on disclosure of

medical information

• OSHA expectation of protection of employees

• Focus on the conduct, not the mental condition

• Apply policies concerning workplace violence consistently

• Include the ability to perform work safely in job descriptions

Conceal and Carry Laws

• Laws providing for the legal carrying of concealed weapons is highly localized

• 48 States currently have laws permitting concealed weapons

• Some municipalities have particular laws and regulations concerning weapons

• Automobile storage laws

Proactive Measures:

A Well-Drafted Policy

• Makes a clear “no tolerance” statement

• States the problem and concern for its human and operational costs

• Demonstrates your company’s commitment

• Defines exact behavior prohibited

• States your company’s goal without creating unnecessary legal/contractual obligations

• Don’t say “The Company will take ALL measures to prevent workplace violence”

Proactive Measures:

A Well-Drafted Policy

• Contemplates threats from third parties

• Plainly describes reporting requirements and procedures

• Defines the consequences for violations

• Provides actual deterrent

• Sets the foundation for eliminating hesitation in reporting concerns

• Creates diminished right of privacy re searching personal belongings, vehicles

Proactive Measures:

Effective Training

• Reinforces “zero tolerance”

• Emphasizes that “little signs” and “gut feelings” are vital

• Teaches employees steps to report violence ― actual, perceived, or threatened

• Reduces the tolerance for threats or violence in any form

• Includes psychological, legal, and security issues

• Potentially offered at new hire stage and at regular intervals

Proactive Measures

• Use of Employee Assistance Programs effectively

• Discipline employees for making threats or engaging in intimidating behavior

• Distribution of a zero-tolerance violence in the workplace policy

• Provide employees with conflict resolution training

Off-Duty Conduct

Employee conduct outside the walls of your

business can:

• Impact company’s reputation with

customers/competitors

• Create workplace tension

• Lead to legal liability for the company

Lifestyle Discrimination

• Most states have statutes that prohibit employers from prohibiting off-duty conduct, aka “lifestyle discrimination” (e.g., smoking, drinking, diet, “risky” hobbies like hang-gliding)– The majority of states that have enacted lifestyle

discrimination laws allow some regulation regarding use of tobacco products

– A few states have statutes to protect employees’ “use of lawful products” or “lawful consumable products” that would include not only tobacco but also alcohol and unhealthy foods

– The broadest statutes, enacted by California, Colorado, New York, and North Dakota, appear to protect virtually any lawful conduct occurring during nonworking hours, away from work

Generally, Employers CAN ...

• Regulate non-protected off-duty conduct that:

– Interferes with workplace relationships

– Advocates a competitor’s products over your own

– Disparages customers

– Constitutes a misrepresentation

– Causes undue embarrassment to the employer

– Discloses confidential/proprietary information

Off-Duty Romance?

• Sexual harassment suits often arise from what started as consensual relationships

• The goal is to keep off-duty conduct from impacting the workplace

• Advise employees that the company reserves the right to transfer or terminate individuals in relationships to prevent issues

• Should you consider a “Love Contract”?

Texting After Hours

• Regulate use of business computers and PDAs after hours?

• Wage and hour concerns ... “checking in” after work can be compensable time

• Blurs the lines between on duty/off duty

Biggest Concern:

Employee Bad Judgment

• This is the problem you most expected

• Harassment, political insensitivity, and just plain stupidity

• Legally, this may not be anything new, but your HR team has to be ready to deal with the issues

• A few examples ...

Questions?

WORKPLACE

BEHAVIOR

AND PRIVACY

ISSUESNBI ─ Philadelphia

February 18, 2015

Thomas Benjamin Huggett

Littler Mendelson, P.C.

1601 Cherry Street, Suite 1400

Philadelphia, PA 19102

267.402.3035

tbhuggett@littler.com