WORKPLACE PRIVACY ISSUES TO WATCH IN 2014

I am paying careful attention to how the courts and legislative bodies will deal with social media and other employment-related privacy issues in 2014. What we have, to date, is a hodge-podge riddled with inconsistencies and conflicting case law.

THE LAW WILL BEGIN TO CATCH UP TO THE TECHNOLOGY: Let’s face it, most judges, myself included, aren’t tech geeks. Whenever the courts have to confront matters beyond judges’ comfort zones, trouble (and inconsistency) will be rampant. However, they will catch up. We know that employers have attempted to obtain employees’ Facebook user id’s and passwords to monitor their activities, claiming that this is to ensure that the current or prospective employee is not engaging in any wrongdoing that might harm the company’s legitimate business interests. Certainly, this conflicts with the employees’ privacy, although there is no inchoate right of privacy contained in the Constitution. Any constitutional law allusions to a right of privacy are actually “bootstrapped” based on 14th Amendment due process. (My doctoral dissertation addressed this issue in the context of the doctor-patient relationship but I will spare you the details!) Many states have passed laws recently restrictly employer access to employee social media and other accounts containing personal information. Currently, ten states, including New York, have adopted such legislation and bills have been introduced or are pending in 36 additional states.

SO NOW THAT WE HAVE A LAW, WHAT DOES IT MEAN? Where we have new laws, we have confusion. Legislatures tend to pass bills without really understanding what they actually mean, with poor or no definitions and inconsistent phraseology. Hence, interested parties will turn to the courts for interpretation; watch for more case law to develop in 2014. Additionally, the courts have begun to address whether unauthorized employer access to social media violates the Federal Stored Communications Act. Additionally, in wrongful termination suits, parties will seek access to each other’s email, Facebook, twitter and other accounts to determine whether the content supports their contentions. Hopefully, this year, we will see the development of a body of procedural law to clarify the rights of the parties in pre-trial discovery.

DON’T THINK THE GOVERNMENT DOESN’T DO EXACTLY WHAT IT SAYS YOU CAN’T! The Equal Employment Opportunity Commission accessed an employer’s email servers and sent a blast to the accounts of over 1300 employees without any prior notice or consent of the employer in an attempt to collect evidence and enlist potential claimants to file a class action age discrimination suit against the employer. Of course, the employer has sued the EEOC in federal court. Truthfully, government should play by the same set of rules as the rest of us. The ability of this kind of action to disrupt an employer’s operations, interfere with its relationship with workers and go on fishing expeditions is patently troublesome. In the case in question, the EEOC did not even tell workers that it was seeking information on age discrimination alone! The US Department of Labor is at it, too. It is working on smartphone and social media applications to “internet shame” employers who fail to comply with wage and hour and other employment laws. Yes, this is where your taxpayer dollars are going! And, there is more—the National Labor Relations Board is taking aim at non-unionized workplaces, seeking to strike down employer social media policies that penalize workers for speaking out over social media concerning the terms and conditions of their employment. Additionally, the NLRB seems to take exception with policies that prohibit workers from discussing the details of an ongoing investigation on the ground that they restrict collective action. This is, effectively, confusing apples and broccoli-but try telling that to the NLRB
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WATCH FOR GINA ENFORCEMENT IN 2014: I have written about GINA (Genetic Information Nondiscrimination Act of 2008) previously. Employers often need to request private health care information in order to appropriately deal with requests for medical leave or reasonable accommodations. The extent to which employers may ask for information and the manner in which they safeguard it has only recently become the focus of EEOC scrutiny and I expect to see the EEOC bringing more enforcement actions in 2014.

THE TAKE-AWAY: Start the year right. Review your existing policies that address confidential information and social media to ensure compliance with existing statutes and to protect your business interests. This isn’t something that you can successfully undertake on your own. The issues are too complex and regulators are changing the rules of the road faster than I can blog about them.