Proposed Federal Legislation To Prohibit Employers From Requiring or Requesting Access to Social Media of Employees or Applicants

As we have noted in several previous blogs on this site, a number of states have either passed or are considering legislation to prevent employers from demanding access to the social media accounts of employees or job applicants.  The federal government recently joined this trend.

Congressman Engel (D-NY) introduced on April 26, 2012, H.R. 5050, the so-called “Social Networking Online Protection Act (‘SNOPA’),” which, if passed, would make it unlawful for an employer to “require or request that an employee or applicant for employment provide the employer with a username, password, or any other means for accessing a private email account of the employee or applicant or the personal account of the employee or applicant on any social networking website; or to discharge, discipline, discriminate against in any manner, or deny employment or promotion to or threaten to take any such action against any employee or applicant for employment because” the employee refuses to provide the information or the employee has filed a complaint or testified about the matter.  The proposed legislation defines a “social networking website” as any internet service, platform, or website that provides a user with a distinct account – (A) whereby the user can access such account by way of a distinct username, password, or other means distinct for that user; and (B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.”  These prohibitions would be enforced by the United States Department of Labor.  The Secretary of Labor could bring a civil action seeking injunctive relief and where appropriate, employment, reinstatement, promotion, and the payment of lost wages and benefits.  There is no fee-shifting provision.  The Secretary of Labor is empowered to assess civil penalties not to exceed $10,000, taking into account the previous record of the employer and the gravity of the violation.  The civil penalty collection provisions are the same as those codified in the Migrant and Seasonal Agricultural Worker Protection Act.  See 29 U.S.C. 1853.  The proposed legislation does not provide a private cause of action.  In other words, enforcement is exclusively in the hands of the Secretary of Labor.  

               This week, Senator Richard Blumenthal (D-CT) and Representative Martin Heinrich (D-NM) introduced the “Password Protection Act of 2012”, a copy of which can be found on Senator Blumenthal’s website.  This bill, which we will analyze in greater detail next week, provides for fines for employers who violate the proposed act.

Please be sure to visit our website at http://RobertBFitzpatrick.com

Sternly, and In Writing, Warn Clients Not to Mess With Facebook

Sternly, and In Writing, Warn Clients Not to Mess With Facebook

In Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011), Judge Edward Hogshire of the Circuit Court for the City of Charlottesville, Virginia issued an order which reduced by fifty-percent a $10.6 million jury verdict and imposed $722,000 in sanctions.  $542,000 of the sanctions were imposed on counsel for plaintiff-Lester, and the remaining $180,000 on plaintiff Lester himself.  The basis for the court’s sanction was an “extensive pattern of deceptive and obstructionist conduct of Murray and Lester…”  In March of 2009 plaintiff’s counsel received a discovery request for the contents of plaintiff’s Facebook account.  At that time, plaintiff’s Facebook account contained a photo of plaintiff wearing a “I [heart] Hot Moms” t-shirt and holding a beer can with other young adults.  According to later deposition testimony, plaintiff’s counsel instructed a paralegal to tell plaintiff to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.”  Thereafter, plaintiff’s counsel allegedly came up with a scheme to take down or deactivate plaintiff’s Facebook account so that he could respond to defendant’s discovery request by stating that plaintiff had no Facebook page on the date the discovery was signed.  Allegedly, when defense counsel filed a motion to compel, plaintiff’s counsel instructed plaintiff to reactivate the account. Plaintiff denied deactivating the account during a later deposition.  Plaintiff’s counsel was also accused of withholding an e-mail from the paralegal instructing plaintiff to “clean up” his Facebook page.  Finally, plaintiff’s counsel allegedly claimed, falsely, after the trial, that the failure to produce the e-mail was the paralegal’s mistake.

 

In addition to the $542,000 sanction imposed on plaintiff’s counsel, the judge referred the matter to the Virginia state bar.  

Tip of the hat to Christopher Danzig, writing for Above the Law, whose post called this to our attention. 

See also

• Lisa Provence, Sanctions: Allied Concrete Attorneys Want $900K in Legal Fees, The Hook, (Sept. 24, 2011) (cite online: http://www.readthehook.com/100997/sanctions-allied-concrete-attorneys-wants-900k-legal-fees accessed: November 14, 2011).
• Lisa Provence, Unusual Outcome: $722K in Sanctions, Juror Judges Judge, The Hook, (Nov. 4, 2011) (cite online: http://www.readthehook.com/101759/final-order-plaintiffs-sanctioned-722k-juror-judges-judge accessed: November 14, 2011).
• Lester v. Allied Concrete Co., 80 Va. Cir. 454 (Va. Cir. Ct. 2010) (Court held that plaintiff’s counsel violated Rule 3:3(a) of the Virginia Rules of Professional Conduct by when he alleged that defendant had “hacked into” plaintiff’s Facebook account based on no inquiry into the relevant facts “beyond the bare, unsubstantiated assertions of his client.”)

Please be sure to visit our website at http://RobertBFitzpatrick.com

Social Networking Sites: New Challenges for Employment Lawyers

Sorry to have been delinquent for two weeks, but other matters diverted my attention, and I simply couldn't find time to blog.

Baseball

"They both [statistics & bikinis] show a lot, but not everything." - Toby Harrah

Disparate Impact Case filed by Baltimore City

Back on January 23, 2008, we blogged about the recent lawsuit filed by Baltimore City which contends that the high incidence of mortgage foreclosures among African-Americans in Baltimore City is on account of racial discrimination. We wondered whether this litigation does not ignore the fact that it was, to some extent, the Clinton administration that "liberalized" qualification standards for mortgages to increase home ownership among African-Americans, and we suggested that that "liberalization" may, in part, have led to the so-called sub prime mortgage crisis. After being duly castigated by some of my liberal friends for having such heretical thoughts, I was heartened to read Robert Cox recent article entitled: "Politicians Created Today's Sub prime Mortgage Crises."

Social Networking Sites

The phenomena of social networking sites and similar interactive cyberspace creations increasingly presents fascinating challenges for employment lawyers and eventually the Judges. On Tuesday, February 12, 2008, there was an intriguing article by Sarah E. Needleman in the Wall Street Journal entitled: "Need a New Situation? Check the Internet: Recruiters and Job Seekers Find Each Other Through Facebook, 'Fan' pages, Videos."

At first blush, some of the issues would seem to be:

1. Is a recruitment ad, using Facebook, that targets exclusively "recent graduates and college seniors with majors in specific fields" potentially discriminatory on the basis of age?


2. After decades of assiduously sanitizing the job application process to assure that the employer doesn't know the applicants age or race, doesn't "beam me up, Scotty" take us on a complete about-face, and how do employers protect themselves from the obvious complaint that is to come, that this facilitates discrimination?


3. Assume that statistically a far great percentage of Caucasians job applicants have ready access to the internet, and are statistically more savvy on the net (remember these are merely assumptions - - I am not suggesting that they are necessarily accurate, much less am I suggesting that African-Americans are less intelligent than Caucasians), is reliance
   on these new online recruiting tools potentially subject to disparate impact attack as racially discriminatory?

There follows a list of citations to various articles about these new forms of recruitment.

Social Networking Sites Aren't Commonly Used to Dig Up Dirt, Elizabeth Saperstein, July 12, 2006. (http://www.ere.net/)

Social Networking Technology Boosts Job Recruiting, Frank Langfitt, November 22, 2006.

Cheezhead Blog, January 3, 2008.

Wall Street Journal Online, A Job Interview You Don’t Have to Show Up For, Anjali Athavaley, June, 20 2007.

JobSearchMarketing.com, Verizon steps it up with targeted email recruitment ad, November 16, 2008

Shaker Recruitment Advertising & Communications, last accessed February 14, 2008.

Accenture, last accessed February 14, 2008

Quill, Social Networking Sites, Khristopher J. Brooks, January/February 2008.

Collaborative Law

We have blogged on several occasions about collaborative law, suggesting that employment lawyers ought to consider the potential use of these techniques in resolution of employment disputes. Scott R. Peppet has a good article entitled: "The (New) Ethics of Collaborative Law" in Dispute Resolution Magazine, Volume 14 No. 2 (Winter 2008), the publication of the ABA's Section of Dispute Resolution.

Immigration - Spate of Recent Victories for Local Governments

According to my scorecard, it is now 3 - 1 in reported decisions, challenging state and local laws imposing penalties on employers who hire illegal immigrants. The plaintiffs won the first challenge, the Hazleton Case (Lozano v. City of Hazleton, 496 F. Supp. 2d 477) in Pennsylvania, and since then have lost three in a row. See Ariz. Contrs. Ass'n v. Candelaria, 2008 U.S. Dist. LEXIS 9362 (D. Ariz. February 7, 2008); Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238 (ED. Mo. January 31, 2008); Nat'l Coalition of Latino Clergy, Inc. v. Henry, 2007 U.S. Dist. LEXIS 91487 (ND. Okla. December 12, 2007).

Trivia

Like me, have you been staying awake nights, wondering who invented the game snooker? Well, I now know. Was it Andrew Mellon? No. Neville Chamberlain in 1875, while serving at a hill station in southern India, first thought of adding an extra colored (coloured for our British friends) ball to the billiards table, and thus snooker was invented. So, now we all know something nice to say about Mr. Appeasement.