PRIVACY RIGHTS IN PERSONAL E-MAIL

In Stengart v. Loving Care, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in e-mails she sent to her attorney via a personal, password protected e-mail account on a company computer. As part of her employment, Loving Care issued Ms. Stengart a laptop computer. Loving Care’s electronic communications policy stated that the company had a right to review and access all material kept on its electronic media systems at any time, with or without warning. The policy also allowed employees to use its servers and computers for occasional personal email or other use.

Ms. Stengart used her company-issued laptop computer to access her personal Yahoo! E-mail account and to correspond with an attorney regarding her allegations of harassment and discrimination by Loving Care. She eventually resigned her position and sued Loving Care. The company hired a computer specialist to retrieve files from Ms. Stengart’s laptop. The specialist found her correspondence with her attorney, which the laptop had automatically saved in a “cache” folder of temporary Internet files. Loving Care argued that Ms. Stengart’s e-mails were not privileged or confidential because she had no expectation of privacy in communications on its media systems.

The New Jersey Supreme Court disagreed, holding that Loving Care’s communications policy was too broad to encompass private, password protected e-mail communications, especially where the content was attorney-client communication. Loving Care’s failure to include personal, password protected e-mail in its electronic communications policy specifically, as well as its allowance of occasional personal use created a reasonable expectation of privacy. Although recognizing a company’s ability to enact policies that protect its assets, reputation, and productivity, and to ensure compliance with company policy, the court held that Loving Care had no legitimate purpose in reviewing the content of attorney-client communication.

Employer Tip: Although this is a “narrow” decision that applies only in New Jersey to communication with counsel, it sends a clear warning to all employers about diving too deeply into employee e-mails, etc. Employers should also heed a warning that they “specifically include personal, password protected e-mail in its electronic communications policy,” and beware of any “allowance of occasional personal use creating a reasonable expectation of privacy.”

Article courtesy of Pettit Kohn Ingrassia & Lutz.

FAILURE TO PERFORM ELIMINATES RIGHT TO FMLA LEAVE

The U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) has held that an employee does not have the absolute right to commence FMLA leave. In Krutzig v. Pulte Home Corp., the plaintiff, who at the time was on a performance improvement plan, requested FMLA so that she could have surgery on her foot. On the same day that the plaintiff requested leave, a customer filed a complaint with a company vice-president against the plaintiff. The next day, Pulte Home Corp. terminated the plaintiff, based on her failure to address the issues raised in her performance improvement plan and the complaint made by the customer. The plaintiff sued, claiming that her termination was in retaliation for taking FMLA leave and that her employer interfered with her right to take leave under the FMLA. However, the company vice-president who terminated the plaintiff testified that he was not aware that the plaintiff had requested leave at the time he made his decision. Based on these facts, the trial court granted summary judgment in favor of the employer and dismissed the plaintiff’s lawsuit.

The Court of Appeals affirmed the trial court’s decision, holding that “[a]s with the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute, and if dismissal would have occurred regardless of the request for FMLA, an employee may be dismissed, preventing her from exercising her right to leave or reinstatement.” The Eleventh Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that “an employee who requests FMLA leave has no greater protection against her employment being terminated for reasons unrelated to an FMLA request than she did before submitting her request.”

THE NLRA AND FEDERAL CONTRACTORS

The U.S. Department of Labor (DOL) has issued a final rule that requires federal contractors and subcontractors to post a notice advising employees of their rights under the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. This notice advises employees of their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. It also lists examples of illegal conduct by employers and unions, and provides contact information to the National Labor Relations Board. Federal contractors and subcontractors must post the prescribed notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted, both physically and electronically. Employers that fail to comply with these notice requirements may be subject to sanctions, including suspension or cancellation of the contract and debarring them from future federal contracts. For more information and to obtain copies of the prescribed notice, visit the DOL Web site.

FAILURE TO INVESTIGATE DOES NOT GIVE RISE TO STAND-ALONE RETALIATION CLAIM

The U.S. Court of Appeals for the Second Circuit (covering Connecticut, New York, and Vermont) has ruled that an employer’s deliberate failure to investigate a complaint of discrimination does not constitute a stand-alone act of retaliation. In Fincher v. Depository Trust and Cleaning Corp., the plaintiff alleged that she complained to a human resources manager about what she believed was racially biased treatment toward black employees in her department. The plaintiff claimed that the human resources manager told her that he was not going to open up an investigation of her claim of race discrimination. The plaintiff resigned and filed claims under federal, state, and local laws for retaliation.

The Court of Appeals affirmed summary judgment in favor of the employer, finding that the employer’s alleged failure to investigate discrimination was not in itself a “materially adverse action” which could subject the employer to retaliation liability. The court noted that under the seminal case Burlington N. & Santa Fe Ry. Co. v. White, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The court held that an employee’s knowledge that her employer has declined to investigate her complaint does not ordinarily constitute a threat of further harm.

Above articles courtesy of Worklaw® Network firm Shawe Rosenthal.

CLAMPING DOWN ON CREDIT HISTORIES

For many years, we’ve recommended that employers conduct credit histories on all job applicants and post-hire in specific categories. The fact is, someone with a poor credit history is a greater risk than someone who has a good record. However, to protect workers impacted by the recession, Oregon, Washington, and other states have begun passing laws that narrow the scope of these inquiries. The EEOC is also raising numerous concerns in this area. The Oregon statute limits the inquiry to cases in which a person’s credit is “substantially job-related,” which is defined as:

• An essential function of the position at issue requires access to financial information
  not customarily provided in a retail transaction that is not a loan or extension of credit. Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks, and credit or debit card numbers.
• The position at issue is one for which an employer is required to obtain credit history
  as a condition of obtaining insurance or a surety or fidelity bond.

Click here to see the Oregon statute.

Here’s what the EEOC says:

“Pre-Employment Inquiries and Credit Rating or Economic Status

“Inquiry into an applicant’s current or past assets, liabilities, or credit rating, including bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question.”

Here’s some data gathered in an effort to encourage these regulations.

Here’s a suit filed by the EEOC. Since at least 2001, the EEOC said, Freeman has rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions. The EEOC lawsuit charged that this practice has an unlawful discriminatory impact because of race, national origin, and sex, and is neither job-related nor justified by business necessity.

Click here to see the FTC site on credit rating.

The Bottom Line: Asking for credit backgrounds poses risks for employee and employer alike. Make sure that you work with a company such as www.globalhrresearch.com that helps keep you abreast of the rapidly changing legal requirements in this area.

FMLA CLARIFICATION ENSURES ALL CAREGIVERS
THE RIGHT TO FAMILY LEAVE

All families, no matter what they look like, are protected by the Family and Medical Leave Act (FMLA). “Workplaces have changed over the last ten years and how we view families has evolved as well,” said DOL Secretary Solis. That message was solidified when the department announced this week that an employee who assumes the role of caregiving for a child is entitled family leave regardless of their legal or biological relationship to the child. This clarification of the law is a victory for many non-traditional families, including families in the lesbian, gay, bisexual, and transgender community, who have often been denied family leave. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves.

Read the News Release here.

Read the Administrator's Interpretation here.