Trade Secrets/Data Privacy

HR professionals know that employment litigation can be expensive.  Very expensive.  One reason litigation has become so expensive, especially recently, is because companies use and store massive amounts of electronic data, including emails and computer files such as Microsoft Word and PowerPoint documents.  When a company is sued for an employment law violation, the plaintiff (in most cases, a former employee) is entitled to “see” all of those electronic files that may be relevant to the claims brought or the defenses relied on by the employer.  This process is commonly referred to as “e-discovery.”
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The California Legislature made headlines yesterday by passing legislation that prohibits employers from demanding the social media usernames or passwords of current employees and applicants.  The bill also prevents employers from requiring employees or candidates to log in to social media in the presence of the employer (i.e., the employee’s supervisor, or the interviewer, or a human resources manager – you get the point).
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I love the Little League World Series.  Classic Americana.  Teams from all over the U.S. and the world play, and proud parents watch them.

Billie Ann Tomei’s son Cole and his team from California (which was coached by her husband Trevor) were good enough to play in the Little League World Series.  But when Billie Ann, an office manager for a CPA, asked for time off to travel to see Cole play, her boss said “No.”  According to Billie Ann, he told her, “If you go, write yourself your last [pay]check.

Well, Billie Ann wrote herself that check and went to see her son play.  Do you think she regrets her decision?
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The National Labor Relations Board is taking an increasingly hard look at the language in employer handbooks, as shown by two recent cases from the NLRB’s Arizona Region.  Recently, Hyatt Hotels Corporation agreed to settle an unfair labor practice charge that claimed a provision in the company’s employee handbook acknowledgment form was too broad.  The provision stated that Hyatt’s at-will employment policy could not be changed except by a written agreement signed by the employee and particular executives.  Similarly, earlier this year an administrative law judge decided that a disclaimer in the handbook of an American Red Cross unit stating that the at-will employment relationship “cannot be amended, modified or altered in any way,” could be interpreted to interfere with employees’ rights to engage in group activity to try to change the policy.

So, why the sudden attention by the NLRB to employee handbook policies on employment “at-will”? 
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Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases.
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Until recently, Georgia was one of the most difficult states in which to enforce a non-compete or other restrictive covenant agreement against employees who left their jobs, set up their own business or went to work for a competitor.  In 2009, the Georgia Legislature decide to change this by enacting legislation intended to clarify the law on non-compete agreements as well as other restrictive covenants (such as non-solicitation and non-disclosure provisions).

While the goal was clear, the legislation was not.  The law that was enacted (and the amendment to the Georgia Constitution that was needed to permit the new legislation) left confusion about when the new law would take effect. 
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Last week, the National Labor Relations Board  (“NLRB”) issued its latest guidance on employer social media policies.  Over the past few years, the NLRB has taken the position that “overbroad” social media policies unreasonably and unlawfully prohibit employees from engaging in protected activities under Section 7 of the National Labor Relations Act  (“NLRA”).  Importantly, Section 7 applies to both unionized and non-unionized workplaces.  So, if you are a non-unionized employer, read on — this applies to you, too!
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With baseball season underway, minds have turned to “America’s Pastime.”  Major League Baseball, like every employer should, has issued a social media policy.  A quick review raises questions about whether portions of the policy will “strike out” if reviewed by the National Labor Relations Board (NLRB), which has been very active in reviewing employer policies and actions relating to social media use by employees. The NLRB is concerned by social media policies it views as unfairly restricting employees — including those not even working in a unionized workplace — from engaging in “protected concerted activity” as defined by Section 7 of the National Labor Relations Act (NLRA).  Simply put, restricting employees from freely discussing their “conditions of work” is considered a violation of Section 7.

So, will Major League Baseball’s social media policy be “safe” at home?  Let’s play umpire…
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Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea?
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