Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The Computer Fraud and Abuse Act (“CFAA”) is a federal law that, in part, makes it a crime to access a computer in an unauthorized manner. In the employment context, the statute has proven valuable in protecting confidential and proprietary information that employees can access on their employers’ electronic systems.

Recent decisions by the United States Courts of Appeals for the Ninth and Third Circuits emphasize the breadth of the CFAA’s application to the workplace. In U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011), reh’g en banc granted 2011 U.S. App. LEXIS 21777 (Oct. 27, 2011), the court held that employees violated the CFAA where their use of an employer’s systems exceeded their authority under the employer’s policies, which warned of criminal liability for misuse. The court went one step further in U.S. v. Tolliver, No. 10-3439, 2011 U.S. App. LEXIS 19090 (3d Cir. Sept. 15, 2011), finding that an employee who accessed her employer’s systems as part of bank fraud exceeded authorized access even though the employer only generally prohibited use of its electronic systems for non-business reasons.

Nosal

In Nosal, the defendant worked for an executive search firm. When his employment with the firm ended, he entered into a non-competition agreement with the firm. Despite the agreement, the defendant purportedly asked three current employees of the firm to help him compete against his former employer. These employees allegedly transferred confidential information from the firm’s computer database to this individual – information that the employees were authorized to access as employees of the firm.

Notably, pursuant to firm policy, employees only could access the information using individualized usernames and passwords. Additionally, the employees agreed only to use and disclose such information for legitimate business reasons. The firm also marked the information as “proprietary and confidential” and warned that employees needed “specific authority to access” the information and that access “without the relevant authority can lead to disciplinary action or criminal protection.

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Flu season is here. While pandemic levels of the influenza virus are not predicted for the 2011-2012 flu season, the virus nevertheless impacts businesses whose employees become ill and/or need to take time off for flu-related reasons. With limited restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

• Offering and encouraging vaccines;
• Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
• Posting and distributing guidelines and suggestions for infection control;
• Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
• Requiring sick employees or employees who were exposed to the influenza virus to stay home;
• Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
• Requiring a doctor’s note from sick employees returning from work after influenza; and
• Inquiring why an employee is absent.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

• Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
• Asking employees about underlying medical conditions that may disclose disability information; and
• Conducting medical examinations of employees.

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The New Jersey Department of Labor and Workforce Development (“DOL”) recently issued a new notice regarding the maintenance and reporting of employment records. All New Jersey employers must immediately begin providing a copy of the notice upon hire to any employee hired after November 7, 2011. For all pre-existing employees, the notice must be provided by December 7, 2011. Provision of the notice may be provided by hard copy or electronic mail. In addition to these distribution requirements, the notice must immediately be conspicuously posted at each worksite either by displaying it alongside other required workplace postings in a readily visible and accessible location or on an employer-run Internet or intranet site that is used exlusively by employees and to which all employees have access. Failure to comply with the distribution and and posting requirements carries a fine of up to $1,000, in addition to possible criminal penalties.

The six-page notice lists the recordkeeping requirements of the following New Jersey statutes: the Wage Payment Law, the Wage and Hour Law, the Prevailing Wage Act, the Unemployment Compensation Law, the Temporary Disability Benefits Law, the Family Leave Insurance Benefits Law, the Workers’ Compensation Law, and the Gross Income Tax Act. In addition, the notice provides a list of various contact numbers for questions and complaints regarding an employer’s failure to meet the requirements of these statutes.

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The National Labor Relations Board’s Acting General Counsel recently issued a report and press release summarizing the outcomes of recent NLRB cases involving employees’ use of social media and the legality of employers’ social media policies. Among the cases discussed in the report are several in which the Board found that provisions of employers’ social media policies violated Section 8(a)(1) of the National Labor Relations Act, which prohibits work rules that would “reasonably tend to chill employees in the exercise of their Section 7 rights” to engage in “concerted activities” for the purpose of “mutual aid or protection.”

Although the NLRB report does not pronounce any new or specific rules for employers to follow in drafting social media policies, it suggests that to avoid running afoul of Section 8(a)(1), social media policies should be narrowly tailored so as not to prohibit “concerted activity” via social media, such as online discussion among coworkers regarding terms and conditions of employment. Employers should be mindful that union and non-union employees alike are covered by the NLRA, and thus the Board’s recent rulings on social media policies are applicable to virtually all employers.

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The second program in our Gibbons Employment Academy Webinar Series, focusing on Disability and Reasonable Accommodations, is scheduled for next Wednesday, June 29, from 8:30 to 10:30 am.

The ADA Amendments Act of 2008 and the EEOC’s recently issued regulations explaining and implementing that Act have been widely touted as significantly expanding the definition of disability. It is anticipated that as a result of the Act, more employees than ever before will be considered disabled and will be seeking accommodations. Employers must understand what is deemed a disability under the law and what steps are necessary when employees request accommodations for their disabilities. The webinar will explore these topics as well as provide a survey of accommodations that have been deemed reasonable and those that have not.

The Gibbons Employment Academy Webinar Series is appropriate for in-house attorneys, human resources professionals and supervisory employees, and CLE credit is available. Two additional webinars are scheduled for the Fall: Employee Leaves on September 21 and Performance Management and Termination on November 9. The webinars can be purchased individually or as a series and are a cost-effective way to train decision makers on critical management and employment law issues.

To enroll for the Disability and Reasonable Accommodations webinar, please email rsvp@gibbonslaw.com or call 973-596-4452. For more information regarding Gibbons’ training programs or to discuss your company’s training needs, contact any attorney in the Gibbons Employment Law Department and see our “Focus on Training in 2011” post.

Kelly Ann Bird is a Director in the Gibbons Employment Law Department.

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As highlighted in our January "Focus on Training in 2011" post, training programs directed to human resources and supervisory employees are a win-win for employers. Whether as a primer or refresher, a legal overview and update on current developments will enable decision-makers to work within the boundaries of the law and reduce costs associated with employee complaints and litigation. Although employees are entitled to various protections under the law, employers must feel that they are empowered to make decisions and manage their employees, from the hiring process through separation.

Gibbons is pleased to announce the Gibbons Employment Academy webinar series, a series of training programs to assist your decision-makers. Our first webinar in the series, focusing on Hiring Practices, is scheduled for Wednesday, June 1, from 8:30 to 10:30 a.m. During this program, we will provide an overview of sound hiring practices, including permissible interview questions, avoiding the creation of oral and written employment contracts, and acceptable pre-employment processes, such as medical and drug testing and credit checks. The webinar series is appropriate for in-house attorneys, human resources professionals and supervisory employees, and CLE credit is available. The webinars can be purchased individually or as a series and are a cost-effective way to train decisionmakers on critical management and employment law issues.

To enroll for the Hiring Practices webinar, please email rsvp@gibbonslaw.com or call 973-596-4452.

Kelly Ann Bird is a Director in the Gibbons Employment Law Department.

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The adoption and enforcement of a policy regarding consensual workplace relationships is essential for all employers. With the American workforce spending at least one-third of their lives at work, it is inevitable that some employees will engage in romantic and sexual relationships with one another. A recent case in the Eastern District of Pennsylvania, Lucchesi v. Day & Zimmerman Group, reinforces that such relationships may have business and legal costs. While employers cannot prevent these relationships from forming or ending, they can take steps to manage their effect on the workplace and to reduce the potential liability stemming from them. A well-drafted policy is a critical first step.

Office Romances At-a-Glance

According to a recent survey 59% of employees admitted that they have been involved in an office romance, while an additional 64% answered that they would be willing to do so if the opportunity arose. This same survey reported that 75% of employers do not have a policy regarding workplace relationships.

While often harmless, consensual co-worker relationships can create a myriad of problems for the employees involved, their co-workers, and their employer. In addition to the obvious distractions of the romance, when the relationship sours, ends or is no longer consensual, the potential for sexual harassment, discrimination, or retaliation claims increases. Claims arising out of workplace romances, however, are not only brought by the parties to the relationship - as in the Lucchesi case - but also by third-parties. Indeed, a growing number of “paramour favoritism” claims have been brought by employees who claim to be undervalued or “passed over” as a result of a favoritism shown toward a co-worker who is engaged in a romantic relationship with the supervisor. In addition to the obvious impact on employee morale, these situations have led to claims of discrimination and retaliation. While at least one California Supreme Court case held that widespread paramour favoritism may be actionable, most courts, including the New Jersey Appellate Division and the Southern District of New York have found that claims of isolated favoritism are not viable under Title VII and similar state anti-discrimination statutes. This is consistent with the EEOC’s published guidance on employer liability for sexual favoritism. Nevertheless, plaintiffs continue to bring the claims.

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Introduction

With the NCAA Men’s Basketball Tournament set to begin next week, employees everywhere will be filling out their tournament brackets. As “March Madness” sweeps the nation, employers face special challenges — particularly in maintaining a productive and efficient workforce at a time when distractions are abundant. In addition, employers should ensure that any tournament pools organized at the workplace are operated in accordance with the law.

Impact on Productivity

There can be little debate that March Madness itself as well as office tournament pools impact the productivity of employees and the company as a whole. Even before the tournament begins, employees will spend time strategizing with co-workers about which one of the 68 teams has what it takes to win it all, which number one seed will be the first to be eliminated, and who will be this year’s “Cinderella team.” Then, with streaming webcasts of every game in every round of the tournament now available on various websites, employees have the ability to watch the tournament during working hours. According to a report by Challenger, Gray & Christmas, Inc. an outplacement company, time spent viewing tournament games online during the work day may reach 8.4 million hours this year which, when multiplied by “the average hourly earnings … among private-sector workers [makes] the financial impact exceed[] $192 million.” Add in the time spent around the water cooler discussing first-round upsets and buzzer-beater victories, the time spent calculating points earned in the pool, and the time spent circulating or posting updates of standings in the office pool, and it is clear that employers face a significant challenge courtesy of the NCAA.

Legality of Office Pools

While the law of individual states vary, unlicensed gambling, such as “Super Bowl Squares” or “March Madness” pools, may be illegal even when the monetary wager is nominal. For example, New Jersey’s state gambling statute, provides that “[a]ll wagers, bets or stakes made to depend upon any race or game, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknown or contingent event, shall be unlawful.” Despite this broad prohibition, however, New Jersey gambling laws provide an exception that can be interpreted to allow forms of gambling in which no profit is taken beyond personal winnings. Accordingly, when no player or other person, like the organizer or host of the pool (the “house”), takes a profit or earns anything more than any other participant in the pool, and everyone has the same chance at winning, office pools are generally lawful.

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The highly publicized “Facebook firing” case, brought by the National Labor Relations Board (NLRB) and discussed in a November 12, 2010 post in the Employment Law Alert, ended with a settlement announced on February 7, 2011. According to the Complaint, American Medical Response of Connecticut Inc. (“AMR”) terminated an employee for criticizing her boss on her Facebook account.

As announced by the NLRB in a news release, AMR will “revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work,” and that they “would not discipline or discharge employees for engaging in such discussions.” AMR’s internet policy had prohibited online comments that “berate” and “slander” supervisors.

In addition, the company also promised that “employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation.” The allegations involving the former employee’s termination were resolved through a separate, private agreement between her and AMR.

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2011 should be the year in which all companies renew their commitment to training employees. Specifically, all employees should be trained on important company policies, such as the anti-harassment and discrimination policies, and human resources employees and supervisors should be trained on consistently problematic topics such as performance management, accommodating disabilities under the Americans with Disabilities Act and leaves under the Family and Medical Leave Act and similar state laws.

Although the new year’s budgets might not be what they were pre-recession, training is a cost-effective way to reduce costs associated with employee complaints and litigation. Training can also help companies increase productivity and employee retention, both of which have a positive impact on revenues. For example, anti-harassment and discrimination training, when conducted company-wide, can improve morale, reduce distracting and unlawful conduct in the workplace, and provide an affirmative defense to claims. Similarly, training directed to human resources and supervisory employees on topics like performance management, leaves, and accommodation of disabilities can have a positive impact on performance, attendance, and the potential for claims.

This week the United States Equal Employment Opportunity Commission reported a 7% increase in claims in 2010 over 2009. The highest number of claims alleged retaliation, with race, gender, disability and age discrimination claims following in order. The statistical information further reveals that both retaliation and disability claims are on the rise. Although commentators can speculate as to the reasons for the overall and specific claims increases, the fact remains that these are claims employers must continue to work to prevent.

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The importance of making reasonable accommodations to workplace dress codes based on an employee’s religious practices was the focus of a recent settlement between the U.S. Department of Justice (DOJ) and Essex County, New Jersey. According to the Complaint filed by the DOJ in United States of America v. Essex County, New Jersey, Yvette Beshier, a Muslim corrections officer, was suspended and then terminated because the religious head scarf she wore violated the Essex County Department of Correction’s uniform policy. The DOJ alleged that Essex County’s treatment of Beshier constituted religious discrimination in violation of Tile VII of the 1964 Civil Rights Act because it failed to accommodate her religious beliefs.

The Settlement between the DOJ and Essex County provides that Beshier will receive $25,000 in back pay and interest as well as the removal of any disciplinary history from her personnel file. The Settlement also requires Essex County to distribute a new religious accommodations policy and procedure and provide training to all current correction department supervisors, human resource officials, and employees on religious discrimination and accommodations.

While an employer generally may impose a dress code or uniform policy for its employees, this Settlement is a valuable reminder that accommodations may be required when an employee’s sincerely held religious beliefs mandate deviation from the requirements. When an employee requests an accommodation because of a religious practice or observance, an employer must reasonably accommodate the employee’s religious belief by relaxing or modifying its dress code unless the accommodation would cause an undue hardship for the employer. Importantly, safety and hygiene issues need not be overlooked for the sake of accommodations. As with all requests for accommodations, employers should engage in a good-faith dialogue with the employee requesting the accommodation. Additionally, any employment handbooks and policies addressing workplace dress code should be reviewed to ensure compliance with the law, and supervisors and human resources personnel should be trained to properly handle requests for religious accommodations.

Suzanne Herrmann Brock is an Associate in the Gibbons Employment Law Department.

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Employers wanting to prohibit damaging communications from being made about them by employees through blogging and rapidly evolving social media such as Facebook, Twitter, and LinkedIn should be aware of a recent National Labor Relations Board (NLRB) Complaint against American Medical Response of Connecticut, Inc. asserting that two of the more common employer restrictions on employee blogging and social media communications constitute unfair labor practices and are, therefore, unlawful. In its News Release, the NLRB pointed to two of the provisions in the company’s blogging and internet posting policies as being unlawful under Section 7 of the National Labor Relations Act (NLRA):

• “one that prohibited employees from making disparaging remarks when discussing the company or supervisors;”
• “and another that prohibited employees from depicting the company in any way over the internet without company permission.”

This position, which emanates from the NLRB’s Office of the General Counsel, seems to differ from a December 2009 Advisory Memorandum from the NLRB General Counsel’s Division of Advice that found lawful the social media policy of Sears, Roebuck and Co. prohibiting, among other things, “[d]isparagement of company’s . . . products, services, executive leadership, employees, strategy, and business products.”

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Flu season is here. While the Centers for Disease Control and Prevention (CDC) currently is not reporting high levels of influenza outbreak or predicting pandemic levels of the virus this year, the flu will nevertheless impact businesses whose employees become ill and/or need to take time off for flu-related reasons. With a handful of restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

• Offering and encouraging vaccines;
• Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
• Posting and distributing guidelines and suggestions for infection control;
• Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
• Requiring sick employees or employees who were exposed to the influenza virus to stay home;
• Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
• Requiring a doctor’s note from sick employees returning from work after influenza; and
• Inquiring why an employee is absent.

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In this technology age, employees increasingly make personal use of workplace electronic communications applications. The legal ramifications of such personal use – and how employers can create policies that balance the right to monitor the workplace with employees’ expectations of privacy – were examined in an informative panel discussion, “Electronic Communications Policies in the Wake of Stengart and Quon” during Gibbons P.C.’s Fourth Annual E-Discovery Conference on October 28, 2010.

Discussion regarding Stengart

The panel kicked off with a discussion of the New Jersey Supreme Court’s March 30, 2010, ruling in Stengart v. Loving Care, which presented novel questions about the extent to which an employee could expect privacy and confidentiality in personal e-mails with her attorney that she accessed on a computer belonging to her employer. The Court held that an employee did not waive the attorney-client privilege when using a company computer to communicate with her attorney via a personal password-protected e-mail account, and that attorneys for the employer who failed to turn over the attorney-client communications found on the computer were subject to sanctions.

A panel member explained that Stengart does not prevent employers from implementing and enforcing unambiguous electronic communications policies or from monitoring employee communications pursuant to such policies. Nor does it prevent employers from imaging and reviewing the contents of an employee’s computer in conjunction with a lawsuit. Employers, however should refrain from reading any communications between an employee and her attorney uncovered as part of such reviews. For further discussion of the Stengart case, see the article co-authored by Richard Zackin and Kristin Sostowski.

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