POSTED BY VENUS A. CARUSO ON JULY 28, 2011

In Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (February 14, 2011), the National Labor of Relations Board held that an employee’s secret tape recording of a meeting with his supervisor was protected activity; and, as a result, the employee’s termination was a violation of the National Labors Relation Act.

The basis of the Board’s decision was based, in part, on the fact that the supervisor had refused the employee’s request to bring a union representative to the meeting, a right the employee was entitled to under NLRB v. J. Weingarten, 420 U.S. 251 (1975). Under Weingarten, an employee who is represented by a union has the right to a union representative at an investigatory interview that may lead to disciplinary action. As a result, the Board viewed the employee’s recording of the meeting to be a method of documenting what the employee perceived to be a potential violation of his Weingarten rights and, as such, was protective activity.

The Board also considered whether the employee had violated any state or local law that prohibited secret tape recordings, and there was none.

While the employer had implemented a rule that generally prohibited employees from making secret recordings in the workplace, the employer had implemented that rule only after it learned that the employee had secretly tape recorded the meeting. Based on these facts, the Board found that the rule was, among other things, overly broad and ordered the employer to rescind the rule and notify all employees in writing that the rule was no longer in effect.

Employers should be mindful of this decision as it exemplifies the type of adverse consequences an employer may suffer as a result of refusing an employee’s Weingarten rights.

POSTED BY SCOTT W. ATHERTON ON APRIL 29, 2011

Although the workforce’s heavy reliance on email and other electronic resources is not new, many employers are still grappling with how to address the ever changing ways in which employees utilize the company’s computer systems for personal purposes. One of the primary challenges created by employees’ personal use of company systems is exposure to invasion of privacy claims. These claims can arise in the event the company intercepts, monitors, or attempts to use personal information or communications that employees have transmitted using the company system.

A Florida federal court recently addressed this increasingly complicated area and provided a road map for employers to follow in protecting themselves from employee privacy claims. In Leor Exploration & Production, LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009), the Court addressed whether a company’s CEO had a reasonable expectation of privacy in email communications that were sent to his personal attorney through the company’s email system. The company had an employee handbook which included a general warning that, “[e]mployees should have no expectation of privacy in communications made over [the company's] systems.” Although the CEO did not dispute the existence of that provision, he argued that it did not apply to him because, among other reasons, a company representative had authorized an exception to this policy for the CEO.

In confronting these issues, the Court noted that the mere existence of a no-privacy provision in an employee handbook is generally not determinative of an employee privacy claim. Instead, the Court adopted the following four factor test to determine whether an employee has a reasonable expectation of privacy in computer files or email:

1. Does the corporation maintain a policy banning personal or other objectionable use?
2. Does the company monitor the use of the employee’s computer or email?
3. Do third parties have a right of access to the computer or emails?
4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Id. at *4 (quotation omitted).

Applying those factors, the Court in Leor concluded that the CEO had no expectation of privacy. In addition to the general privacy disclaimer language above, the company’s policy further stated that the company “may access and monitor the use of its systems and equipment from time to time” and that “employees should not use [the company's] communications systems to communicate, receive, or store information that they wish to keep personal or private.” The Court found this sufficient to satisfy the factors above, and held that the CEO had no expectation of privacy. As a result, the Court held that even emails sent to the CEO’s attorney using the company system were fair game for the company to access, review, and use.

The Court also rejected the CEO’s argument that the company had agreed to exempt the CEO from this policy. The Court found that there was no evidence that the company made any “assurances” that the CEO could disregard the company’s policy. Although the CEO’s exception argument was rejected in this case, the Court’s analysis suggests that it may be possible for executives or employees to oppose “no privacy” policies by establishing that they were assured the policy would not apply to them.

The Leor case provides several important lessons for employers. First, for those employers who do not have a “no privacy” policy, this case makes it clear that it will be difficult for employers to defend against certain invasion of privacy claims. Second, for those employees who only have a general “no privacy” policy, the Court’s reasoning strongly suggests their policies should be updated to clearly state that the company has the right to monitor and access all employee files and communications, similar to the language employed by Leor. Third, the CEO’s claim of purported “assurances” that the policy did not apply to him, even though unsuccessful in the Leor case, suggests that employers should further state that there shall be no exceptions to said policies unless they are written, clearly define the scope of the exception, and are signed by an appropriate company representative (such as the head of Human Resources) with corporate authority to grant such exceptions.

Although these measures may not completely avoid employee privacy claims, they should substantially limit employer’s exposure in this regard.

POSTED BY SCOTT W. ATHERTON ON JANUARY 31, 2011

Unfortunately, many employers have learned the hard way that failing to properly preserve emails and other files after receiving notice of a potential employee claim can result in severe sanctions against the company. One well known example is Zubulake v. USB Warburg. Although Zubulake started out as a fairly “vanilla” gender discrimination case, the employer made a series of mistakes which ultimately cost the company in excess of twenty million dollars in damages and sanctions. Among those mistakes was failing to properly instruct the people involved not to delete emails relating to the case—an obligation which federal law now imposes on both individuals and companies who are involved in federal lawsuits.

To reduce these exposures, proactive employers have begun implementing written policies and training programs to educate employees about their obligation to preserve evidence. This new trend follows recommendations by The Sedona Conference, which is generally regarded as a leading authority on e-discovery preservation issues. Among other things, Sedona has announced its official position that “adoption and consistent implementation of a policy defining a document retention decision-making process” and “[t]he use of established procedures for the reporting of information relating to a potential threat of litigation to a responsible decision maker” are among the factors Courts should consider in determining whether to impose sanctions when information is lost. See The Sedona Conference Commentary on Litigation Holds, The Trigger & the Process (Aug. 2007)

With those factors in mind, many companies are now implementing written legal hold policies as part of their Employee Handbooks. Those policies often have the following features:

• A statement concerning the company’s policy of complying with all laws requiring the preservation of evidence
• An explanation of what employees should do if they receive notice of a claim, such as (1) promptly reporting the claim to HR/the Legal Department; and (2) preserving all potentially relevant files as soon as reasonably possible
• An outline of potential disciplinary measures that may result from noncompliance with the policy (and an organized method for reporting non-compliance)
• A method of confirming all employees’ acknowledgement of the policy

While a company-wide legal hold policy is not a substitute for a case-specific legal hold notice (which is now mandatory under federal law), many employers have implemented such policies to help raise employee awareness, avoid data loss issues before they become a problem, and ensure that legal issues are promptly reported up the chain of command. Moreover, if mistakes do occur, the existence of an organized legal hold policy should help establish that the company acted in good faith—a factor Courts should consider prior to imposing sanctions pursuant to Sedona.

As is the case with the company’s anti-discrimination and other policies, this is yet another area of exposure where an ounce of prevention is worth a pound of cure.

POSTED BY KAREN M. BUESING AND SCOTT T. SILVERMAN ON DECEMBER 14, 2010

Yet another law for employers to worry about!

The U.S. Equal Employment Opportunity Commission (EEOC) has issued final regulations implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). GINA applies to all employers covered by Title VII and generally prohibits discrimination and harassment in the terms and conditions of employment, including health benefits, on the basis of genetic information, as well as retaliation for opposing, or making a charge of, such discrimination or harassment. It also restricts employers from acquiring, requesting, requiring or purchasing genetic information, with six limited exceptions. It also limits disclosure of genetic information, also with six limited exceptions, and allows employers to keep genetic information in the same confidential file as medical information under the ADA.

Genetic information includes information about individuals' genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology. However, GINA would not come into play where the employee has a current condition that has a genetic basis, such as cancer, because GINA is concerned about discrimination occurring due to a perceived disposition to becoming ill in the future. Of course, the ADA may still be applicable in such a situation.

The final regulations provide examples of what are and are not genetic tests; more fully explain GINA's prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.

Employers are strongly advised to review these new regulations and work with counsel to update their policies to incorporate these new regulations.