Prying Eyes: Reading a Former Employee’s Personal Email Gets Verizon Sued

By Stearns Weaver Miller on October 30, 2013 Posted in Employee Handbooks & Policies, Employment Litigation

An Ohio Federal District Court recently ruled that Verizon Wireless could be sued for reading a former employee’s personal emails on a company-issued device.

During her employment, Verizon issued Sandi Lazetle a Blackberry which she used for company email. According to Sandi, she was told that she also could use the Blackberry for personal email, which she did through a Gmail account. When she left Verizon, Sandi turned in the Blackberry believing she had deleted her personal email account. She hadn’t, and apparently her former supervisor figured that out. Sandi alleged that over the next 18 months her former supervisor used the Blackberry to read 48,000 of her personal emails, including opening some emails before she had read them. Once Sandi discovered this, she changed her personal email password, and then sued Verizon and the supervisor, alleging violation of the federal Stored Communications Act (“SCA”) and Ohio state laws. Verizon moved to dismiss her entire lawsuit, but the Court disagreed.

Under the SCA, an individual may pursue a civil action for damages and other relief against whomever “intentionally accesses without authorization a facility through which an electronic communication is provided; or . . . intentionally exceeds an authorization to access that facility; and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1)-(2).

In this case, the Court held that the SCA prohibited the reading of Sandi’s unopened emails (i.e., the emails she had not opened or read) because the reading was done without authorization from Sandi. The Court also held that Sandi could pursue her SCA claim against the supervisor who read the unopened emails as well as against Verizon because the supervisor was acting within the scope of his employment.

As to her state law claims, the Court held that Sandi could move forward with her claim for invasion of privacy for the reading of all her emails (opened or not) as they “were highly personal and private” because they contained communications about her family, career, financial status, health, and other matters. The Court reasoned that a jury could find the supervisor’s behavior (and that of Verizon by extension) as “highly offensive.”

Shortly after the Court issued its order, the parties settled on undisclosed terms.

The lesson for employers: Reading emails in an employee’s personal email account is a potential legal landmine, even if the account is maintained on a company-issued device. Employers should prohibit employees from maintaining a personal email account on a company-issued device and advise employees that maintaining a personal email account on a company-issued device (in violation of the policy) provides authorization for the company to review those emails.

For more information on workplace monitoring issues, please attend our breakfast seminar: Snoops – Cybervetting and Monitoring Employees’ Activities Electronically From Hiring Through Termination on November 12, 2013 (Miami), November 13, 2013 (Boca Raton), or November 14, 2013 (Fort Lauderdale).

Florida’s Minimum Wage Set to Increase to $7.93 per Hour on January 1, 2014

By Glenn Rissman on October 24, 2013 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

Effective January 1, 2014, Florida’s minimum wage will increase from the current rate of $7.79 to $7.93 per hour. Each year, the Florida Department of Economic Opportunity must recalculate Florida’s minimum wage based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. Based upon the calculation, the minimum wage will increase to $7.93 an hour.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the federal Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage law. However, the employer must pay tipped employees a direct wage. The direct wage is calculated as equal to the minimum wage ($7.93) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.91, effective January 1, 2014.

Florida’s minimum wage statute requires employers to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees work. The minimum wage posting is in addition to wage and hour postings under federal law. Florida minimum wage posters in English and Spanish are available by clicking on the highlighted links.

For companies with employees outside the State of Florida, the federal minimum wage remains $7.25 per hour. You should verify that no state or local wage law requires payment of a minimum wage greater than the federal minimum wage.

E-Verify Up and Running

By Glenn Rissman on October 17, 2013 Posted in Immigration

The U.S. Department of Labor has issued the following notice regarding E-Verify and the impact of the government shutdown:

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available.

The following information addresses questions on how the federal government’s shutdown affected E-Verify and Form I-9.

Information For Employers

Form I-9
The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify
Employees who received a Tentative Nonconfirmation (TNC)
If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result
If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees
If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

• Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer provided you after you contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.
• Contact SSA or DHS by the new date to resolve your TNC.

If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

FMLA Update: Revised FMLA Poster Available in Spanish

By Stearns Weaver Miller on October 1, 2013 Posted in Employee & Management Counseling, Employee Handbooks & Policies, Legislation & Regulations

In February 2013, we advised you that the Department of Labor (“DOL”) revised its Family and Medical Leave Act (“FMLA”) poster, also referred to as the “General Notice.” (Click here for February 2013 post) At the time, the revised FMLA poster was only available in English. After months of waiting, the revised FMLA poster is now available in Spanish. (Click here for the Spanish poster) The Spanish FMLA poster must be used in workplaces that have a significant number of Spanish-speaking employees who are not literate in English.

As a reminder, employers should post the FMLA poster in the workplace so it is visible to employees and applicants. If the employer has an on-line application site, the FMLA poster must be posted on the site so it is visible to applicants. The poster also should be included in an employee handbook, either as standalone document or as an attachment to the employer’s FMLA policy.

OFCCP Requires Benchmarks for Hiring Veterans and Individuals With Disabilities

By Stearns Weaver Miller on September 30, 2013 Posted in Disability & Leave, Discrimination & Harassment

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently issued regulations revising existing regulations under the Vietnam Era Veterans’ Readjustment Assistant Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973. These laws prohibit covered federal contractors and subcontractors from discriminating in employment against protected veterans and individuals with disabilities, respectively, and require these employers to take affirmative action to recruit, hire, promote, and retain these veterans and individual with disabilities. The revised regulations require federal contractors and subcontractors to adopt benchmarks each year for hiring veterans and individuals with disabilities.

The benchmark for veterans is either: (1) the national percentage of veterans in the workforce (currently 8%); or (2) the contractor’s own benchmark based on the best available data, utilizing five factors set forth in the regulations. Those factors are: (a) the average percentage of veterans in workforce over the past three years in the state where the employer is located; (b) the number of veterans who participated in the employment service delivery system (i.e., One-Stop Career Centers) over the past four quarters in the state where the employer is located; (c) the applicant and hiring ratios for veterans in the previous year; (d) the employer’s recent assessments of the effectiveness of its outreach and recruitment efforts; and (e) any other factors, such as the nature of the job or its location, that would affect the availability of qualified protected veterans

The benchmark for individuals with disabilities is 7% for each “job group” which consists of a group of jobs with similar duties, pay rates and opportunities. For federal contractors and subcontractors with 100 or fewer employees, the 7% benchmark for individuals with disabilities is applied across the entire workforce. Other revisions include data analysis and retention for veteran/disabled applicants and employees, and the invitation for applicants to self-identify as veterans or an individual with a disability. Click here and here for the regulations. The regulations go into effect on March 24, 2014.

Hand Scanning and Religious Discrimination

By Glenn Rissman on September 30, 2013 Posted in Disability & Leave, Discrimination & Harassment

While we would never disparage anyone’s sincerely held religious beliefs, we did not see this one coming. The Equal Employment Opportunity Commission (EEOC) recently filed suit in federal court in West Virginia claiming that the use of a hand scanning time clock violated an employee’s rights under Title VII of the Civil Rights Act of 1964 (Title VII).

The defendants in the case operate a mine in West Virginia and required employees to electronically sign into work using a biometric hand scanner used to track time and attendance. An employee, Beverly Butcher, objected to the new hand scanning device on the grounds that it violated the requirements of his religion. Butcher, an Evangelical Christian, believed that the hand scanning technology was related to the Mark of the Beast and antichrist. He raised his concerns with the defendants on multiple occasions and asked for an accommodation – to submit his time manually as he had done before or to check in and out with his supervisor. The defendants told Butcher that he could use his left hand turned palm up rather than his right hand because the Bible’s Mark of the Beast dealt with the right hand and forehead. Because the defendants would not accommodate his request, Butcher involuntarily retired after thirty five years of
service. According to the EEOC’s lawsuit, the defendants allowed two other employees to continue to submit manual time cards because they had missing fingers.

It is difficult to say how the case will turn out. Title VII requires employers to accommodate the sincerely held religious beliefs of employees, unless doing so creates an undue hardship. The undue hardship requirement is set low; employers must show that the accommodation will cause more than a minimal cost. The defendants may be stuck between a rock and a hard place on the undue hardship issue. The EEOC will likely argue that allowing Butcher to use a manual time clock did not create an undue hardship, especially because the defendants allowed the employees with the missing fingers to continue to clock in and out. However, the defendants may have been legally required to accommodate the other employees under the American with Disabilities Act, which has a much tougher undue burden requirement for employers than the minimal undue hardship defense in Title VII.

DOJ Advises Against Employer Pre-Populating Section 1 of Form I-9

By Glenn Rissman on September 17, 2013 Posted in Immigration

The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (say that 3 times!) has provided guidance on Form I-9 software programs that pre-populate Section 1 of the Form I-9 with data already entered into the software program. In our June 12 posting, we blogged that Immigration and Customs Enforcement (ICE) said that pre-populating Section 1 of the I-9 Form was prohibited. Now, the Department of Justice has weighed in and suggested that pre-populating Section 1 of the form could violate the anti-discrimination provisions of the Immigration and Nationality Act.

The DOJ discourages the use of pre-populating software because it increases the chance of including inaccurate or outdated information in Section 1 of the Form I-9, such as changes in legal names, addresses, or citizenship or immigration status. The outdated information, the DOJ theorized, could lead the employer to reject documents the employee presents to establish identity and work authorization, as required in Section 2 of the Form I-9. The outdated information could also lead to mismatches with government databases, for those employers who use E-Verify. Lastly, the DOJ theorized that employers who rely on pre-populated data in Section 1 of the Form I-9 may be more likely to overlook that an employee has limited English proficiency. As a result, the employer may fail to provide the employee with translation or interpreting assistance to ensure the accuracy of Section 1 and to assist the employee in understanding the documentary requirements in Section 2 of the form.

Employers who use software programs to complete the Form I-9 should deactivate any feature that pre-populates information into Section 1 of the form. Continuing to use the pre-population feature runs afoul of guidance from both ICE and the DOJ.

Back Door Into Employee’s Facebook Wall is a No-No

By Stearns Weaver Miller on August 30, 2013 Posted in Employee Handbooks & Policies, Employment Litigation

A New Jersey federal court ruled this week that “private” Facebook wall posts are covered by the Stored Communications Act (“SCA”). The SCA is a federal law that, among other things, prohibits unauthorized access of communications stored on the internet.

Deborah Ehling, a former Monmouth-Ocean Hospital Service Corp. nurse, posted comments on her Facebook wall about the paramedics’ handling of a shooting at the Holocaust museum in D.C. After the shooting, which killed a security guard, Ehling posted to her Facebook account: “An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference!” Ehling’s Facebook page had a privacy setting limiting access to only her Facebook friends, but one of her coworkers, a Facebook friend, took a screenshot of the post and sent it to the hospital. The hospital placed Ehling on paid suspension. She was later reinstated, took twelve weeks of leave and was terminated shortly after for not returning to work from her leave. Ehling sued the hospital claiming, among other things, that it violated the SCA by accessing her “private” Facebook page.

The court concluded that the SCA applied to Facebook wall posts when a user has activated his or her privacy settings. However, the court granted summary judgment for the hospital on the SCA claim based on the authorized user exception. Click here for Order. The hospital had received Ehling’s Facebook post in an unsolicited manner – from a coworker who was Facebook friends with Ehling. The employer thus did not violate Ehling’s privacy and did not violate the SCA.

Employers should be careful when mining for information about employees via social media. Asking an employee to find out information about a coworker on the coworker’s nonpublic, social media account can violate the SCA, exposing the company to potential criminal and civil penalties including attorney’s fees for plaintiffs.

NLRB Fashion Police – First Prison Stripes, Now Slave Shirts

By Glenn Rissman on August 22, 2013 Posted in Employee Handbooks & Policies, Labor Law

An Administrative Law Judge of the National Labor Relations Board has once again weighed in on acceptable attire in the workplace. The Judge decided that an employer improperly disciplined a union employee for wearing a t-shirt that had the word “slave” along with a picture of a ball and chain. The decision follows on the heels of an earlier NLRB order allowing AT&T workers to wear prison striped t-shirts while visiting customers’ homes.

The recent case, Alma Products Co., concerned an employee named Gluch, who was active in the union at Alma Products. The union and Alma Products were involved in difficult negotiations in 2012. Gluch was part of an unofficial union reaction committee that tried to “pump up” union members. In addition to displaying signs and wearing pro-union buttons, Gluch wore a shirt to work on which was printed the word “slave” and a ball and chain. The shirts had been created years before as part of union activities and been worn on multiple occasions over the years. When Gluch wore the shirt to work in May 2012, his supervisor asked him to take the shirt off or turn it inside out because the company did not like the shirt. Gluch declined but said that he would not wear the shirt again. Because Gluch would not remove the shirt or turn it inside out, the employer sent Gluch home without pay. The union filed a charge with the NLRB, saying that the employer’s actions and its policy interfered with employees’ rights under Section 7 of the National Labor Relations Act.

Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In this case, Alma Products had a dress code policy that prohibited clothing displaying vulgar/obscene phrases, remarks or images which may be racially, sexually or otherwise offensive and clothing displaying words or images derogatory to the company. The judge found that the dress code did not explicitly restrict Section 7 rights but that it was overly broad and could be reasonably construed to restrict Section 7 rights. The judge rejected the arguments from Alma Products that the shirt was racially offensive, in part because the shirt had been worn on many occasions by numerous employees over the years, without any concern from the company that its message or image was racially offensive. The judge ordered the employer to pay Gluch his lost wages and to stop maintaining and enforcing the overly broad dress code.

As we have been blogging, the NLRB has been much more active inserting itself into the workplace, whether the issue is social media policies, dress codes, employment at will statements, or mandatory arbitration agreements. Even union free employers should be mindful of the NLRB’s tentacles when disciplining employees.

Reminder: The Deadline to File Your EEO-1 Report is Just Around the Corner

By Stearns Weaver Miller on August 19, 2013 Posted in Legislation & Regulations

The next filing deadline for EEO-1 Reports is Monday, September 20, 2013. The “EEO-1 Report” is the Employer Information Report that certain employers are required to annually file with the U.S. Equal Employment Opportunity Commission (EEOC). The form asks the employer to provide a count of its current employees by job category and then by ethnicity, race and gender. To complete the form, employers may use employment numbers from any pay period in the third quarter of the year (i.e. July, August or September 2013). The reports are confidential but are used by the EEOC, the Office of Federal Contract Compliance Programs (OFCCP) and the Department of Labor for statistical analysis and to decide which employers to audit for compliance with applicable federal civil rights laws. The form is currently available and can be submitted online at http://www.eeoc.gov/employers/eeo1survey/index.cfm. Generally, employers with 100 or more employees and employers with federal government contracts of $50,000 or more and 50 or more employees must file EEO-1 reports. If you are not sure whether or not you are required to file a EEO-1 Report, visit the EEOC’s web site or ask your attorney.