Excerpts from June 2012 “An Ounce of Prevention” Newsletter

*The following are excerpts from some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

Bill Pending in Ohio Senate to Ban Employers from Requiring Access to Employee’s Social Media Pages … and so much more

S. B. No. 351 was recently introduced into the Senate, and it has been referred to the Senate’s Insurance, Commerce and Labor Committee. Surely, this bill is in response to recent news stories about employers requiring applicants to provide passwords to the applicant’s Facebook or similar accounts. However, a careful reading of the bill reveals that it does more than just protect an applicant’s or employee’s private messages and posts.

The bill (which also applies to employment agencies, personnel placement services and labor organizations) would amend R.C. 4112.02, which is enforced by the Ohio Civil Rights Commission.

If the bill passes as currently written, it would be illegal for an employer to “recklessly” do any of the following:

(1) (a) Ask or require an applicant or employee to disclose usernames or passwords associated with a private electronic account of the applicant or employee;

(b) Ask or require an applicant or employee to provide the employer … with access to a private electronic account of the applicant or employee;

(c) Discharge, discipline, threaten to discharge or discipline, or otherwise penalize an employee if the employee refuses to disclose usernames or passwords associated with a private electronic account of the employee, or if the employee refuses to provide the employer … with access to a private electronic account of the employee;

(d) Fail or refuse to hire an applicant for employment because the applicant refuses to disclose usernames or passwords associated with a private electronic account of the applicant, or because the applicant refuses to provide the employer … with access to a private electronic account of the employee.

(2) [This law] shall not be construed to prohibit an employer … from monitoring the electronic accounts of employees or applicants on the electronic mail or internet system of the employer….

(3) For purposes of this division:

(a) “Private electronic account” means a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.

(b) “Social media internet web site” means an internet web site that allows individuals to do all of the following:

(i) Construct a public or semipublic profile within a bounded system created by the service;

(ii) Create a list of other users with whom the individual shares a connection within the system;

(iii) View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

A careful reading of the bill raises several serious questions. Why is the standard “recklessness”? When would that apply? Would it be acceptable to ask an employee for a Facebook password intentionally?

Why should it be illegal to ask for a username to an electronic account? It would seem this could make it illegal to ask an employee to provide their home e-mail address. It could also potentially open the door to litigation over mandatory direct depositing of paychecks. What if an employer (which for purposes of 4112.02 can be a supervisor or HR manager) asks a co-worker to “friend” them on Facebook—this bill would appear to make that act unlawful as well.

The definition of “social media internet web site” also appears oddly worded. For example, it defines forbidden information as that arising from a “public” profile. It would seem more appropriate to limit employer access to applicants’ private profile information.

We have been in contact with the legislators considering this bill to try to clarify the above-noted issues, and to limit its impact on employers in the event the bill is eventually signed into law. Any comments you have on this issue—including personal experiences in this area—would be appreciated. Employers should closely follow this bill; a single violation carries an automatic penalty of up to $1,000 for a first offense (double that for subsequent offenses)!

Note that a similar bill is pending in the U.S. House (H.R. 5050). The language in the federal bill differs from that in the Ohio bill, and the federal bill provides for automatic penalties of up to $10,000 plus employment or reinstatement and payment of lost wages and benefits. As with the Ohio bill, this penalty could be assessed against a supervisor or hiring manager.

If the Government Shows up at Your Front Door, Are You Ready?

Over the past few years, government enforcement of workplace laws has been on the rise. For example, the Department of Labor (DOL) has increased its number of investigators by 50% since 2008. Not only have the numbers of investigators increased, but so have surprise audits. When reviews of a company’s policies or practices reveal violations, the DOL now seeks penalties more often, even for first violations. Additionally, when a violation is found at one location of a multi-site employer, the DOL is more frequently launching investigations into the entire company—not just the one site where the initial violation was found.

Previously when a wage and hour violation was found to have occurred, the DOL would often order the employer to pay the employees the compensation due them (“back pay”). Now, liquidated damages (essentially double damages) are becoming more common.

Are Your Non-Compete Agreements Worth the Paper They’re Printed On?

Many employers try to protect their competitive edge by requiring employees to sign agreements not to compete. While these agreements can be very useful, it is important to make sure they are enforceable. Even though they can sometimes discourage soon-to-be-former employees from taking a job with a competitor—and from taking your customers with them—you should review your contracts from time to time to ensure they still adequately protect your interests in case they are ever challenged in court.

Take for example Acordia of Ohio. Acordia merged with another company, who previously hired employees from yet another earlier (but now nonexistent) company. As part of the merger, Acordia took on the other company’s employees. Since those employees signed non-compete agreements with a former company, Acordia did not require the employees to sign new non-compete agreements. Within 6 months of the merger, four employees left and took 19 customers and $1 million in revenue with them.

Court Rules Severe Obesity is Protected Disability Under the ADA

In yet another expansion of the laws protecting employees, a federal court in Louisiana ruled that severe obesity (defined as being more than 100% overweight) is a protected disability under the Americans With Disabilities Act (ADA). EEOC v. Resources for Human Development (“RHD”). An attorney on behalf of EEOC was quoted as stating “[t]his case highlights the fact that severely obese people who can do their jobs are every bit as protected by the ADA as people with any other qualifying disability. Any notion that these individuals are not protected, based on the wrongheaded idea that their condition is self-inflicted, is simply wrong and without legal basis.”

Social Media Laws Changing as Fast as a Teenage Girl’s Facebook Status

One of the biggest risks an employer takes in enacting a social media policy is violating the National Labor Relations Act (NLRA). Some people think the NLRA deals only with unionized employers, but it applies to all work places. The National Labor Relations Board (NLRB) enforces the NLRA, and has been cracking down on any policy that might reasonably be interpreted as interfering with, threatening, or coercing employees in their rights under the NLRA.