Spying on your sick employees is a recipe for disaster

Do you remember the episode of The Office where Dwight stakes out Oscar's house to see if he's faking a medical condition and committing insurance fraud?

Believe it or not, something similar is happening in real life at Tesla. The managing director and human resources director of one of its foreign gigafactories recently targeted 30 employees on sick leave for home visits. While the HR director claims the visits had "nothing to do with general suspicion," the managing director has a documented history of intolerance toward factory workers who "couldn't get out of bed."

Needless to say, the employees did not appreciate the visits. "You could just tell by the aggression," the HR director said. Employees slammed doors, threatened to call the police, and questioned why the visits weren't scheduled in advance.

No privacy for drug-test pees

Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?

I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.

Pre-employment pregnancy testing?

I was tagged on Twitter to address this situation.

My friend did a drug test for a part time job for the local school district. When she got her results, she found out that the district also did a pregnancy test. Besides ethical issues, this seems like a legal red flag given she wasn't told this would be done.

The OP added that her friend's spouse (male) did the same screening for the same employer, but no pregnancy test.

If it looks illegal, and it smells illegal, then it's illegal. Let's examine why.

A pisser of an invasion-of-privacy case: Ohio Supreme Court find no cause of action when employer watches an employee give a urine sample for a drug test

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

Yesterday, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

Urine trouble: Ohio Supreme Court to decide whether an employer can require “direct observation” of a workplace urine-sample collection

An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.

These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.

Must you tell employees when you are surveilling their devices?

It’s unusual these days for an employee not to have a device issued by their employer, or on which they can access their employer’s information — cell phones, tablets, laptops, and other computing devices.

Conventional wisdom (California notwithstanding), is that if the employer owns the device, the employee has zero privacy rights in that device, its use, or the information stored on it.

That conventional wisdom, however, might be changing.

Bathroom conversations aren't private conversations

Michael Woods, a mortgage banker at Quicken Loans, was having a bad day at work. A customer Woods had helped four years ago had been trying to get in touch with a Client Specialist; the company routed the call to Woods because of their prior relationship. He aired his grievance to a co-worker, Austin Laff, while they were in the bathroom together. "The client should get in touch with a fucking Client Care Specialist and quit wasting my fucking time."

Jorge Mendez, a supervisor, overheard this conversation from a stall. He responded with an all-employee email reminding everyone of proper conduct in public areas. "Never, EVER, should we be swearing in the bathroom especially about clients."

Should we require drug testing as a condition for unemployment benefits?

This is the question posed by Ohio House Bill 704.

Let's be clear. This law, if enacted, would not require drug testing as a condition for all applicants for unemployment benefits. Only those—

1. for whom there exists reasonable cause to suspect the unlawful use of a controlled substance; and 
2. whose most recent employer fired because of the unlawful use of a controlled substance.

Is technology the answer to your employees’ mental health problems?

The world was rocked last week, first by the suicide of Kate Spade and then by that of Anthony Bourdain. American suicide rates have skyrocketed, up 30 percent since 1999, emblematic of the larger mental-health epidemic we are facing.

Many point to the isolationism and perfection seeking created by our personal technology devices (and the social media they feed to us) as one the main causes of this epidemic.

But what if the analytical power of these devices could actually alert us to mood changes and create an earlier awareness of an impending personal mental-health crisis?

The legal implications of employee tracking devices

Photo by N. on Unsplash

I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.

A deep dive on social media, employee privacy, and the workplace

When history closes its book on 21st century America, Charlottesville may go down as one of its most significant chapters. If justice has any place in our world, it will prove to be a turning point on race relations in our nation. Or at least that is my hope. In the wake of this tragedy, journalists have spilled, and will continue to spill, a lot of ink.

One of the favorite articles I read in the past week was, Can an employee be fired for activities outside the workplace?, by Kathryn Moody at HRDive.com (and not just because the article is an interview with me; thanks to Kathryn for the interview). 

Would you let your employer microchip you?

Our family dog, Loula, is microchipped. Our vet offered it to us as a service when Loula first joined our family. It provides some peace of mind in the sad event that Loula goes missing and ends up in a shelter or vet office. They would be able to read the rice-grain RFID chip embedded in her leg, discover that she belonged to us, and return her.

Loula, however, is a dog, she’s not an employee. Which is why I’m troubled that a Wisconsin employer has decided to offer microchip implants as a “service” to its employees.

NBC reignites privacy debate by requiring social-media passwords of job applicants

“Those who cannot remember the past are condemned to repeat it.”  (George Santayana)

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it.

Has workplace drug testing gone to pot with legalized marijuana?

Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the ADA does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate. Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

6th Circuit recognizes reasonable expectation of privacy in commercially-stored emails

Earlier this year, in Quon v. Arch Wireless, the Supreme Court dodged the question of whether one has a reasonable expectation of privacy in electronic communications. Yesterday, in U.S. v. Warshak (6th Cir. 12/14/10) [pdf], the 6th Circuit answered the question, at least as it pertains to one’s commercially-provided email account.

Warshak involves the criminal convictions of the distributors of the male enhancement herbal supplement Enzyte. Some the evidence used to convict Steven Warshak came from the government’s warrantless seizure of his emails account. Although the 6th Circuit affirmed the use of the emails in Warshak’s trial, the court, for the first time, recognized that individuals enjoy an objectively reasonable expectation of privacy in their commercially-stored email accounts:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life….

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self-expression, even self-identification.” … It follows that email requires strong protection under the Fourth Amendment….

Unlike Quon, Warshak is not an employment case. Nevertheless, it provides insight into court’s views of email and personal privacy. And, it gets the issue right. Employers should continue to take heed if they pry into employees’ personal (i.e., non-employer-provided) email accounts. Courts will likely continue to err on the side of protecting employees’ privacy rights in their own personal emails, and will likely take a long, hard look at businesses that invade that privacy.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Quon v. Arch Wireless: If privacy rights fall in the forest and no one chooses to rule on them…

Quon v. Arch Wireless was one the most anticipated cases before the U.S. Supreme Court for employment attorneys. We hoped that the Court would use this case to sort out the issues that arise from the intersection of employment rights, privacy, and technology. Unfortunately for employment lawyers, Quon turned out to be dud. Because the employer was a police department, the Court decided the case on narrow 4th Amendment grounds, and ignored the key employment and privacy issues for which we had held out hope.

Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.

A copy of the Quon pinion is available from the Supreme Court’s website, here.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Truck drivers with positive drug tests should not file lawsuits … period.

Consider these facts:

• A city garbage truck driver is injured on the job.
• When he goes to the ER for treatment, a blood test reveals cocaine in his system.
• Upon returning to work following a workers’ compensation leave of absence, he agreed to attend Narcotics Anonymous meetings as a condition of his employment.
• He did not attend the meetings.
• When it was discovered that he was trying to surreptitiously tape record his follow-up conference with the city, he received a five-day suspension.

How do you think the subsequent law suit filed by this employee against the city turned out? Garofolo v. City of Fairview Park (8th Dist. 12/10/09) [PDF] has the details. The short answer (surprise) is that the employee lost:

Garofolo offers no legal basis for his argument that appellees should have ignored the disclosure of his positive drug test and that he should not have been subjected to the substance abuse program or other measures taken by appellees. We find the argument that the appellees should not have acted upon the information to be disingenuous in light of Garofolo’s safety-sensitive position and DOT requirements. Indeed, once provided with the information, Fairview Park had a clear interest in creating a safe working environment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Drafting a social networking policy: 7 considerations

I could draft a perfect social networking policy using only a few words: “Be mature, be ethical, and think before you type.” Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, I offer seven thoughts to consider when drafting a social networking policy.

1. How far do you want to reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.
   
2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking, such as LinkedIn. Without turning off internet access or blocking certain sites, a blanket ban is also hard to monitor and enforce.
   
3. If you prohibit social networking, how will you monitor it? Turning off internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.
   
4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
   
5. Do you want employees to identify with your business when networking online? Because this blog is affiliated with my law firm, Kohrman Jackson & Krantz, I am cognizant that everything I write reflects on my partners and my business. Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.
   
6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business.
   
7. How will social networking intersect with your broader harassment, technology, and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence, depending on what they are posting, can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update, and fine-tune other policies.
   

For more information on social networking, revisit yesterday’s post -- Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Cave drawings were likely the earliest form of social networking. Today people tweet their thoughts for the world to see. In between we’ve had instant messaging, MySpace, Facebook, and blogs. The next several big things are already being hatched by some students at Stanford or MIT. Online social networking is here to stay – the only change will be in what form it takes.

According to a recent survey conducted by Deloitte, 22% of employees say that they use some form of social networking five or more times per week, and 15% of employees admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work.

Before we can figure out what to do about these exploding media at work, we first need to know exactly what we are dealing with. So, for the uninitiated, the following is a short lesson on the various types of social networking that are likely being accessed from your workplace right now.

• Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject (such as the Ohio Employer’s Law Blog), or serve as an online diary. Most are text-based, but blogs can also focus on art, photos, videos, and audio (you may have heard of podcasts). There are hundreds of millions of blogs on the internet, many updated as often as every day.
  
• Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid email address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities, and other causes. Connections are known as “friends.” People update with short written blurbs about what they’re doing, pictures, video, and the like. Users can also post on friends’ pages. If you’re not on Facebook, I guarantee someone you know is. In fact, Facebook has over 200 million registered users. Even my mom has a Facebook page.
  
• LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer, or various user-created groups. It has over 41 million members.
  
• Twitter: Twitter is latest big-thing in social networking. It is what is known as “micro-bloggings.” “Tweets” are text-based posts of up to 140 characters, displayed on the user’s profile page and delivered to followers, other users who have subscribed.
  

Employers have three options to try to regulate social networking by employees at work: 1) turn off their internet access; 2) institute progressively harsher discipline against employees caught Facebooking or tweeting at work; or 3) draft a reasonable policy that recognizes the intersection of technology in the workplace and employees’ lives, and establishes reasonable baseline expectations about what is and is not acceptable use at work. Only the latter option makes any real sense.

Tomorrow, we’ll explore the pieces and parts that comprise a useable social networking policy. Until then, feel free to follow my 140 character thoughts on Twitter @jonhyman.

Employee disloyalty and Facebook

Dan Leone was a lifelong fan of the Philadelphia Eagles. One could  only imagine that when his favorite team hired him as a game-day stadium employee, it was his dream job. Last week, the Denver Broncos signed free agent safety Brian Dawkins, the team’s emotional leader and one of the franchise’s historical great players. Upset with the Eagles’s decision not to resign Dawkins, Leone chose to vent on his Facebook page, updating his status: “Dan is [expletive] devastated about Dawkins signing with Denver. . .Dam Eagles R Retarted!!"

The Philadelphia Inquirer reports on the team’s termination of Leone:

Less than two days after posting the Dawkins remarks, Leone said, he was contacted by Leonard Bonacci, the team's director of event operations. According to Leone, Bonacci said they needed to talk about Leone's Facebook page, and Leone agreed. Leone - who deleted the comment - figured that the two would sit down and that he could apologize to Bonacci in person. But Leone said Bonacci never got back to him after that.

Two days later, Leone said, he received a call from Rachel Vitagliano, the team's guest services manager. Leone said she fired him over the phone. The conversation lasted less than 10 minutes.

No warning. No suspension. No face-to-face meeting. Just a quick call to tell Leone he'd been terminated.

All over the Internet, the Eagles are taking a beating for Leone’s. For example, according to an ESPN.com poll, 80.5% believe the Eagles were not justified in firing Leone.

Let me take the other side. It may seem heavy-handed for the Eagles to take a stand against a part-time seasonal employee. If an employer wants to effectively enforce policy, it has to do so across the board. The Eagles are sending the message that it will not tolerate its employees publicly making negative statements about the organization. While some will consider it unfair for this message to be sent at Leone’s expense, this employer will be better served the next time, when it is a high level front office employee instead of a part-time stadium employee. In employment law, consistency is key, and to be consistent, someone always has to be first.

Do you know? will return tomorrow, with a post on banning guns inside and outside the workplace.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.