Illinois Joins Maryland and Delaware in Banning Requests for Social Media Passwords

As we have previously written, numerous states have proposed legislation intended to prevent employers from demanding access to the social media accounts of employees or job applicants.  Previously only Maryland and Delaware had actually passed such legislation, although as many as fifteen states and the federal government are considering similar legislation.  See Sam Favate “Illinois Becomes Third State to Pass Social Media Privacy Law”, Wall Street Journal Law Blog (Aug. 2, 2012) (available at: http://blogs.wsj.com/law/2012/08/02/illinois-becomes-third-state-to-pass-social-media-privacy-law/?mod=djemlawblog_h).  However, on August 1 Illinois Governor Patrick J. Quinn signed the “Right to Privacy in the Workplace Act” into law, making Illinois the third state to put such legislation on the books.

The Right to Privacy in the Workplace Act provides that:

It shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.

820 ILCS 55/10(b)(1).  

This prohibition differs somewhat from that found in the Maryland User Name and Password Privacy Protection and Exclusions Act, House Bill 964 (amending Md. Code Ann. Labor & Empl. 3-712), and the Delaware Higher Education Privacy Act, 14 Del. Code 9401 et seq. The Maryland law provides that: “Subject to Paragraph (2) of this subsection, an employer may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through an electronic communications device.”  Among other differences, the Maryland law protects only current employees, while the Illinois law protects both current and prospective employees.  The Delaware law, as its name implies, applies only to “public or nonpublic academic institution[s],” but covers both current students and applicants.  14 Del. Code § 9403(a)-(b).  

Nevertheless, the Illinois law does contain potentially broad carve-outs and omissions.  Of particular note is the fact that the employer is permitted to institute and enforce lawful policies regarding internet use, social networking site use, and electronic mail use.  See 820 ILCS 55/10(b)(1).  More significantly, the Illinois statute provides:

(2) Nothing in this subsection shall limit an employer's right to:

(A) promulgate and maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use; and

(B) monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting or requiring any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website.

820 ILCS 55/10(b)(2)(A)-(B).  So, while the employer is prohibited from requiring an employee to provide his or her device, this “exception” appears to make anything the employee does on an employer-provided electronic device or network fair game.    The Maryland law also contains carve-outs regarding employee use of employer devices and the employer’s ability to enforce its policies.  By contrast, the narrower Delaware law provides no such exception.  It contains only a narrow carve-out for investigations of criminal activity or investigations related to an institution’s threat assessment policy.  14 Del. Code § 9405.  

While an individual alleging a violation of the Illinois law may file a complaint with the Illinois Department of Labor which may fine the employer, the Illinois law (like the Maryland and Delaware laws) does not provide for an independent private cause of action in the courts.  Fines under the Illinois law range between $200 and $500 per affected employee, plus costs and reasonable attorneys’ fees.  820 ILCS 55/15(d)(1)-(3).  Although the Delaware law specifically details the actions which public and nonpublic academic institutions might take, it also fails to spell out an explicit penalty for violation of this mandate:

“No public or nonpublic academic institution may discipline, dismiss or otherwise penalize or threaten to  discipline, dismiss or otherwise penalize a student for refusing to disclose any information specified in subsection (a) or (b) of § 9403.  It shall also be unlawful for a public or nonpublic academic institution to fail or refuse to admit any applicant as a result of the applicant’s refusal to disclose any information specified in subsection (a) or (b) of § 9403.” 

14 Del. Code § 9404.  Apart from the fines provided for by the Illinois law, the primary method of enforcement for these laws appears to be a tort action for wrongful termination in violation of public policy.  It remains to be seen whether such an enforcement mechanism is adequate.

These laws often fail to expressly address the much larger issue of employer monitoring of employee behavior on work related electronic devices – an issue of growing consequence in a world where increasing numbers of individuals use one device for both work and personal purposes.  In fact, both the Maryland and Illinois laws contain broad carve-outs for this sort of behavior.  See 820 ILCS 55/10(b)(2)(B); Md. Code Ann. Labor & Empl. 3-712(b)(2), (e).   It remains to be seen whether, and how, this issue will be addressed.  For further information See Martha Neil, Ill. Gov. Signs ‘Facebook Bill’, ABA Journal (Aug. 1. 2012) (available at: http://www.abajournal.com/mobile/article/ill._gov_signs_facebook_bill_as_of_jan._1_employers_who_ask_for_passwords/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email); Eric B. Meyer, Snoop Dog Becomes Snoop Lion! And News of a New Employee Facebook Law, The Employer Handbook (Aug. 2, 2012) (available at: http://www.theemployerhandbook.com/2012/08/illinois-becomes-the-2nd-state.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+employmentlaw-blog%2FimGSCom+%28Employment+Law+Blog%29).

Password Protection Act: “There are two things you don’t want to see being made – sausage and legislation”

Pictured Above: Senator Blumenthal (D-CT) (Left) & Congressman Heinrich (D-N.M.) (Right)

Plainly put – this draft legislation is farcical, and hopefully, as written, is dead on arrival! 

First, there is no realistic enforcement mechanism.  The proposed legislation is a series of amendments to the Computer Fraud & Abuse Act, and the sole enforcement mechanism is a criminal prosecution by the United States, and, upon conviction, the sole remedy is a fine.  

Second, the language of one section articulates a defense that is dependent on the employer establishing “good cause” for discharge or other discipline.  While, for years, I have advocated a simple, unitary, federal law establishing just cause as the standard for termination, a “stealth” or, probably, just less than thoughtless piece of legislation like this does little good in that regard, and a whole lot of bad.

Third, the exemptions for federal employees with access to classified information seem excessively broad.

Fourth, presumably, as drafted, the provisions of the Computer Fraud & Abuse Act authorizing civil actions do not apply to this proposed new substantive prohibition.  And, in any event, the damages preconditions to a civil action under the CFAA could hardly ever, to the point of never, be fulfilled by an employee.  And, the relief would simply be an injunction and, as there is no fee-shifting provision, there is no incentive for the private bar to take such cases.  

Finally, the retaliation provisions are thoughtlessly lifted from other statutes, and, as written, presumably would only come into play if one “causes” the United States to institute a civil action or if one testified or “is about to” testify in such civil action. 

Whoever drafted this bill needs to be taken to the woodshed.  Sausage like this, we do not need!

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

What Claims Are Cognizable When Plaintiff Fails To Allege The Existence Of A Work-Sharing Agreement?

In Mayers v. Laborers' Health & Safety Fund of North America, 478 F.3d 364 (D.C. Cir. 2007), the Court of Appeals limited the plaintiff's claims to only those claims that occurred within 180 days prior to the filing of plaintiff's EEOC charge even though the District of Columbia is a deferral jurisdiction. The panel reasoned that the failure of the plaintiff to allege the existence of a work-sharing agreement between EEOC and the deferral agency, here the D.C. Office of Human Rights, should result in plaintiff not being permitted to seek relief with respect to claims that accrued between the 300th and 180th day prior to the filing of the EEOC administrative charge. The Court, in a brief per curiam opinion merely states the following: "Although EEOC regulations extend the deadline for filing to 300 days when it has a worksharing agreement with a state or local agency, . . . Mayers does not allege the existence of such an agreement nor does she dispute the applicability of the 180-day deadline to her case."

One must wonder why the panel chose to not take judicial notice of the fact that the District of Columbia is a deferral jurisdiction and that there is a work-sharing agreement between EEOC and the Office of Human Rights. My assumption is that the Court chose not to take judicial notice because plaintiff's counsel, as the Court noted, did not dispute the applicability of the 180-day deadline. I assume that this is a one time only decision. Obviously, best practice would be to henceforth allege the existence of a work-sharing agreement and to allege that the charge filed with EEOC was properly deferred to the deferral agency in accordance with the terms of the work-sharing agreement.

Now, having said that, one must take note of the disturbing opinion of the District of Columbia Court of Appeals in Griffin v. Acacia Life Ins. Co., 2007 D.C. App. LEXIS 266 (D.C., May 24, 2007) in which the Court of Appeals questioned whether the deferral had been properly effectuated.

Is A Constructive Discharge Claim A Continuing Violation And If So, Who Cares?

The panel in Mayers also, at the end of its brief opinion, suggests that it is an open issue for decision at a later date as to whether a constructive discharge case, after National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), can be amenable to continuing violation analysis because, like a hostile work environment claim, a constructive discharge claim by its very nature involves repeated conduct. Morgan, 536 U.S. 115. While the question is intellectually interesting, one wonders why the Court saw it to be of any possible significance. After all, as Morgan teaches us, there must be one act within the limitations period that is a part of a chain of events culminating, in the case of a constructive termination, in the plaintiff-former employee's resignation which he/she alleges to be a constructive termination. Would not, in all events, the one act be the resignation, and therefore what possible difference could it make whether a court viewed the alleged constructive termination to be a Morgan-type continuing violation or merely a discreet act of discrimination.

SOX's Preliminary Order Of Reinstatement Is Dealt A Setback

The DOL's Administrative Review Board (ARB) in Windhauser v. Trane, ARB Case No. 05-127, 2007 DOL SOX LEXIS 82 (Oct. 31, 2007) held that the Administrative Law Judges did not have the power to sanction an employer that declines to obey the ALJ's order to reinstate the complainant in a SOX section 806 case. Instead, any enforcement remedies are reserved for the Federal District Court to impose.

Here the employer terminated Windhauser, who thereafter filed a complaint with DOL, alleging a violation of section 806 of SOX. After investigation, the agency issued its findings and a preliminary order of reinstatement. The employer then, among other things, requested a stay of the preliminary order of reinstatement, and the ALJ issued an order denying the employer's motion for a stay. Thereafter, the employer filed a petition for review with the ARB which was viewed as an interlocutory appeal. Thereafter, the parties settled and the ALJ requested briefing on the consequences of the employer's refusal to comply with the preliminary order of reinstatement. The ALJ then issued an order imposing monetary sanctions against the employer, which then petitioned the ARB to review the ALJ's imposition of monetary sanctions.

The ARB held that, absent statutory authority, the DOL had no power to impose monetary sanctions, indicating that the appropriate forum would be the Federal District Court.

Calculation Of Front Pay

In Hagman v. Washington Mutual Bank, Inc., Case No. 2005-SOX-0073, 2006 DOL SOX LEXIS 130 (Dec. 19, 2006), the ALJ had to decide what amount of front pay to award in a SOX section 806 case. The complainant's expert had testified that the complainant would never recover her career track and earnings potential in her lifetime. The expert alternatively calculated complainant's front pay as though she would recover her career track and earnings potential within ten years. The ALJ found the assumption that Ms. Hagman would never recover her career track and earnings potential as not credible, and instead found that the ten year assumption was reasonable and persuasive, resulting in a front pay award of $642,941. The ALJ relied heavily on the line of cases regarding front pay referenced in the District of Columbia Circuit's opinion in Peyton v. DiMario, The Public Printer of the U.S., 287 F.3d 1121 (D.C. Cir. 2002).

Is There A Private Right Of Action Under Section 304 Of SOX

Recently, Judge Woodlock of the District of Massachusetts in In re Ibasis Inc. Derivative Litigation, 2007 U.S. Dist. LEXIS 89989 (D. Mass., Dec. 4, 2007), a stock option grant date manipulation case, held as have apparently all courts that have addressed the issue, that section 304 of SOX does not provide a private right of action. Judge Woodlock adopted the analysis of this question articulated by Judge Dalzell in Neer v. Pelino, 389 F.Supp. 2d 648 (E.D. Pa. 2005) where the Court relied heavily on the fact that section 306 explicitly provides for a private right of action, suggesting, by implication that as section 304 is silent in that regard, that Congress did not intend to provide for a private right of action under section 304.

May The Public Policies Codified In SOX Be Used As The Basis For A State Common Law Wrongful Termination Claim?

In Willis v. Comcast of Oregon II, Inc., 2007 U.S. Dist. LEXIS 79927 (D. Ore., Oct. 25, 2007), Judge Aiken, focusing on the language of SOX which states that "nothing in [ the remedies] section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law . . . " 18 U.S.C. Section 1514A(d), held that SOX did not provide an adequate statutory remedy to preclude plaintiff's common law wrongful discharge claim. Even though SOX provides for "all relief necessary to make the employee whole" and even though Oregon law precludes a common law wrongful discharge claim where a statutory remedy exists, the plaintiff argued that SOX is not an adequate remedy because punitive damages are not allowed. The Court stated that "Congress may be said to have expressed an intent to provide for adequate remedies by detailing specific types of remedies in a comprehensive fashion." Nonetheless, the Court found that the Congress had explicitly not abrogated or superseded common law remedies , and therefore found that SOX does not provide an adequate statutory remedy to preclude plaintiff's common law wrongful discharge claim.

While I appreciate that the District of Oregon is in the Ninth Circuit, nonetheless, one must seriously question the reasoning of the District Judge. Applying this reasoning would permit those federal anti-discrimination and labor standards laws that state that they are not intended to displace or preclude even more comprehensive protections as potentially the basis for "sky's the limit" wrongful discharge litigation. In effect, decisions like the Willis decision, transform federal claims into state law claims, allowing plaintiffs to escape from federal court and to escape from federal limitations on damages. Decisions like this would seem to raise some questions regarding federalism.

Montgomery County Maryland Outlaws Employment Discrimination Against Individuals Based On Gender Identity, Including The Transgendered

Effective February 20, 2008, Montgomery County, Maryland's Human Rights Act has been amended to prohibit discrimination on the basis of gender identity which is defined in section 27-6 as follows: "Gender identity means an individual's actual or perceived gender, including a person's gender-related appearance, expression, image, identity, or behavior, whether or not those gender-related characteristics differ from the characteristics customarily associated with the person's assigned sex at birth." Montgomery County Bill 23-07, Non-Discrimination - Gender Identity Act, (available at http://www.montgomerycountymd.gov/content/council/pdf/bill/2007/23-07.pdf).

Drivers Of Light-Weight Vehicles - MCA Exemption To The FLSA

The Motor Carrier Act exempts from the FLSA certain employees transporting property by commercial motor vehicle. The exemption was amended in 2005 by provisions of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which provided in section 49 U.S.C. 31132 that a commercial motor vehicle is defined as a vehicle with a gross vehicle weight of at least 10,001 lbs. Thus, the courts have recognized that SAFETEA-LU narrowed the coverage of the MCA exemption to the FLSA and that after August 10, 2005 employees, driving vehicles weighing less than 10,000 pounds are no longer exempt from the FLSA. See, e.g., Kautsch v. Premier Communications, 502 F. Supp. 2d 1007, 2007 WL 1459694 (W.D. Mo., May 16, 2007), summary judgment denied in 2007 U.S. Dist. LEXIS 82856 (W.D. Mo., Nov. 7, 2007); O'Neal v. Kilbourne Medical Lab., 2007 U.S. Dist. LEXIS 22620 (E.D. Ky., Mar. 28, 2007); King v. Asset Appraisal Services, Inc., 2006 U.S. Dist. LEXIS 94937 (D. Neb., Oct. 23, 2006); Musarra v. Digital Dish, Inc., 454 F.Supp. 2d 692 (S.D. Ohio, 2006); Dell'Orfano v. Ikon Office Solutions, Inc., 2006 U.S. Dist. LEXIS 61563 (M.D. Ga., Aug. 29, 2006). See also, Field Assistance Bulletin, No. 2007-2, DOL, Wage and Hour (May 23, 2007), available at http://www.dol.gov/esa/whd/FieldBulletins/FieldAssistanceBulletin2007_2.pdf.