Facebook Access Demands?

Employers demanding access to employee’s Facebook accounts? Whether or not you have noticed, there is a growing trend where potential employers are demanding that job applicants provide passwords to their private Facebook accounts. The reason? According to employers they want to check for “embarrassing or damaging information.” As an employer, do you really want access to potentially sensitive information? Can it potentially expose the employer who seeks this access to unanticipated legal liability? Doesn’t this practice undermine the privacy expectations and the security of both the user and the user's friends?

Democratic Sens. Charles Schumer (N.Y.) and Richard Blumenthal (Conn.) on Sunday urged federal authorities to investigate whether employers who ask for their workers' Facebook passwords are breaking the law. In a statement, Schumer and Blumenthal called the practice "disturbing" and said it "represents a grave intrusion into personal privacy."

Schumer and Blumenthal asked the Justice Department to investigate whether the practice violates the Stored Communication Act or the Computer Fraud and Abuse Act, which ban unauthorized access to electronic information. "Requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites may be unduly coercive and therefore constitute unauthorized access under both [laws]," the lawmakers wrote.

And, they didn’t stop there. They also sent a letter to the EEOC asking the agency to review the situation. The concern is that access by the potential employer would give an employer access to "private, protected information that may be impermissible to consider when making hiring decisions." Is there a potential for the private information in a Facebook account to be used to discriminate against otherwise qualified applicants?

Sen. Blumenthal announced last week that he's going to propose legislation to ban employers from requesting access to Facebook accounts as a term of employment. "With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information,” Blumenthal said. “Employers have no right to ask job applicants for their house keys or to read their diaries — why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” Schumer asked.

Facebook condemned the practice in a blog post on Friday. The company's Chief Privacy Officer, Erin Egan, issued the statement: "In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.”

Would any rational person want to turn over his or her passwords? I believe this is a violation of Facebook’s terms of service. If an individual releases their password, it opens up their personal communications to a variety of individuals that are unknown to them.

Currently this activity is legal in most states. Let’s hope we see some change coming.

Maternity Leave and Employer Requirements

There are no federal laws requiring a company to provide paid maternity leave. However, most employers are required to comply with FMLA as well as the Pregnancy Discrimination Act (PDA). If complications rise in the pregnancy that substantially “limit a major life activity,” the employer may need to review the Americans with Disabilities Act" as well.

Under the PDA, employers subject to Title VII of the Civil Rights Act of 1965 are prohibited from discriminating against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” (Employers who have 15 or more employees are subject to Title VII of the Civil Rights Act.) Under the law, an employer must treat a pregnant employee like any other employee on the basis of their ability, or inability, to do their job.

As an employer, you must provide the same accommodations for an expectant employee that you would for any employee unable to perform their regular duty. Under the PDA, you are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave. Remember, consistency in your practices is the key.

Let’s talk FMLA. When an employee becomes pregnant, and if the employee is eligible for FMLA leave, the employer must also consider the employees right to take leave under FMLA.

How about ADA and reasonable accommodation? A normal pregnancy is not considered a disability under the ADA. But if the woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under ADA. If so, the employee is entitled to reasonable accommodation to perform her job.

As always, check your respective state laws.

Keep communicating people.

Coleman v. Maryland Court of Appeals

Nineteen years ago President Bill Clinton signed into law the Family and Medical Leave Act (2/05/1993). This bill has continued to be a source of confusion and discussion since that time. As an employer, are you confused yet? Well, you’re about to become a bit more confused. Yes, FMLA is under attack once again.

Under FMLA, employers have to provide employees up to 12 weeks to recover from a serious medical condition. Well now the feds are saying that state agencies/colleges are exempt. What?

Daniel Coleman was an employee of the Maryland Court of Appeals. He requested leave under FMLA to care for his own serious medical condition and was fired. Of course he sued. The Supreme Court (in a ruling of 5 to 4), ruled that state agencies and state colleges can’t be sued by employees for violating the self-care provision of FMLA. A constitutional rule says “states, as sovereigns, are immune from suits for damages.” (I believe the term is sovereign immunity.) The only exception is in cases that involve unconstitutional treatment, including discrimination.

To bypass the sovereign immunity rule, and open states up to FMLA “self-care” lawsuits, Congress “would have to show that it passed the provision to protect individuals from a pattern of discrimination that was created as a result of state policies.”

Eight years ago, the state of Nevada made a similar argument. William Hibbs was fired after taking FMLA to care for his ailing wife. At that time the Supreme Court ruled that FMLA was enacted by Congress under its Fourteenth Amendment to address unconstitutional discrimination. And, it did not cover states in the area of family care.

ADA and Mini-Horses NEWS FLASH

Back in July, 2011 I blogged about mini-horses as service animals. Some of you questioned my sanity - just a bit.

This evening a story hit MSNBC. A California man is suing GameStop and Marshalls for refusing to allow him into their stores with his service animal. Jose Estrada, who is a paraplegic, has a 29-inch tall miniature horse named Princess who pulls him in his wheelchair. Estrada says that employees at the stores should have known that mini horses can indeed be service animals.

"Princess has been individually trained and certified by a professional trainer to assist him by pulling him in his wheelchair," the complaint against GameStop states. "The training further consists of behavior modification, leading and heeling, turning on forehand and haunches, sidepassing, laying down on command, standing still, entering a handicapped-accessible van and confined spaces and desensitization."

Jose Estrada has been professionally trained to control Princess and can do so without difficulty. And, Princess is housebroken. "Her presence in defendants' facility does not compromise the legitimate safety requirements that are necessary for its safe operations."

He is asking for $4,000 in damages from each business.

Are You A Bad Boss?

The New York Times ran a short article back in 2008 which referenced the findings of The National Federation of Independent Business, a small business advocacy group. The NFIB asked the question, "Are you a good boss or bad boss?" The group suggested you ask yourself the following questions if you truly want an answer.

1. Have you ever publicly criticized an employee?
2. Do you take credit for your employees' work?
3. Do your employees fear you?
4. Do you expect employees to do what you tell them without question?
5. Do you believe employees should know what to do without you telling them or providing guidelines?
6. Are you a yeller?
7. Do you demean employees as a form of punishment?
8. Do you play favorites?
9. Do you hate delegating?
10. Do you check everyone's work?

According to the answer key, the more "yes" answers, the greater the likelihood that you are a bad boss.

Can A Supervisor Or Manager Be Held Liable?

I'm sure you're asking "liable for what?" We'll get to that in just a moment.

Let's discuss personal liability for a moment. Personal liability refers to civil actions brought by an employee claimant (for the purposes of this discussion) in a court against a person (defendant/respondent) in his/her individual capacity. Where a monetary award is provided for the claimant, this monetary award may be satisfied from the personal assets of an individual defendant. Your stuff is now fair game!

While individuals are normally shielded from liability when acting on behalf of a corporation, there are those situations during which the organization cannot protect them. Employment related actions carry with them a "risk" of liability. And yes, this can result in legal action against the employer AND against the individual supervisor or manager. FMLA carries the prospect of personal liability.

In the private sector, courts have consistently found that individual managers/supervisors acting on behalf of the employer may be individually liable for violating an employee's FMLA rights. Bear in mind it may not have been your intent to violate their rights, but you did.

FMLA is a challenging, complex law. Annually it continues to be amended. It's currently under review for amendment yet again.

Documenting Employee Performance

As we reach the end of Q1 2012, many companies are beginning to address those hated performance appraisals. To ensure you are able to provide the employee with an effective performance appraisal, remember to never rely on your memory to evaluate employee performance! Develop a system that will allow you to track the employees performance over the course of the entire performance period. It can be computer based or simply a file in your desk.

1. Track both the positive and negative behaviors of the employee so that you have a "balanced" review of the employees performance. Don't let the file become a little black book of mistakes and errors.
2. Provide detail, detail, detail. Be very specific with your information. Not that the employee was late three times over the last 2 weeks. But the days, the amount of time s/he was late. What was the excuse? Details. Not your opinion! Are projects late? Are deadlines missed? What have been the employees positive contributions to the workforce? Did the employee come in under budget? Ahead of deadline? Did the employee act as a team leader for a successful project?
3. Summarize every discussion. Include the problem, the action taken to correct or eliminate the problem, the dates, comments, etc.
4. Write OBSERVATIONS, not assumptions. Avoid unsubstantiated claims.
5. Keep a file for all employees.

Performance reviews are difficult for both the employer and the employee. Keep those lines of communication open during the year. Don't bombard the employee with feedback only during the appraisal.

Rule of thumb: Nothing mentioned during a performance appraisal should be a surprise to the employee!

Updated FMLA Forms Available

In case you missed it, the FMLA forms on the DOL website expired on 12/31/211. Finally, the DOL has issued new forms. There isn’t much of a change other than the new forms are good through February 28, 2015. The new forms don’t make reference to the proposed amendments to military family leave nor for GINA safe harbor language. The proposed changes:

1. Calculation: Companies would be required to track FMLA leave in the smallest increments the payroll systems use to track work time.
2. Physical impossibility provision: A delay in a worker’s reinstatement will only be permitted in the most limited circumstances. The DOL may change the rule that allows employer’s to delay a workers’ reinstatement from FMLA when it is physically impossible for the employee to return to work in the middle of his/her shift.
3. Military Leave: Major changes to provisions including; (a) Expanding caregiver leave to care for veterans discharged within the past 5 years; (b) Extending exigency leave to family members of regular armed forces; and, (c) Extending amount of time employee can take during a military family members “rest and recuperation” period.

Following up on GINA, The Equal Employment Opportunity Commission (EEOC) has suggested employers add the below language in forms when requesting health-related information from an employee. This will ensure that employers don't inadvertently obtain genetic information when requesting that healthcare provides complete certification forms.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

To have your voice heard regarding the proposed changes to FMLA, the link is provided:

http://www.regulations.gov/#!home

Candidate Referral Programs

It's a clear indicator that the economy is recovering. Recruiting is up.

When expanding a candidate pool, in addition to traditional recruiting methods companies may use a candidate referral program. While there are associated risks, if properly implemented a referral program can provide a pool of passive candidates that are of higher quality. Let's face it, an employee isn't going to refer a candidate that's a poor fit. Any candidate the employee brings in is a reflection on that employee.

If you are developing a referral program, here's a few basic questions:

1. Are all positions to be eligible for the referral?
2. Are all employees, including managers and supervisors, able to participate in the program?
3. Do you wish for your referral program to include individuals that are non-employees? Non-employees would encompass vendors, consultants, customers and even former employees.
4. What size is the referral bonus? Is it the same for all positions? Should it be a higher amount for a professional position versus hourly position?
5. How long must the new employee be retained prior to the payment of the bonus? Pay 100% up front? 50% up front with balance at conclusion of an identified time frame? 100% at the conclusion of the identified time frame? Personally, hey, it's a REFERRAL bonus. Not a retention bonus. Pay the referral out up front!
6. Should priority be given to the referrals over other candidates?
7. Should the referring employee pre-assess the candidate for the open position? This will allow the organization to ensure that the employee has the skills and abilities for the position prior to interviewing.

As with any referral program, communication is key. Employees must be aware of what positions are being recruited for and what the requirements are of each position. Remember, employee referrals should add to the quality of the candidate pool.