June 2013 Volume XII No. 7 Taking Care of Business
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Employees’ Social Media Privacy Rights Pose High Risks to Employers

In the last few years, social media usage has skyrocketed with billions of daily users on sites such as Facebook, LinkedIn, and Twitter. The majority of employees frequent social media sites throughout the work day and afterwards, both on personal and employer supplied electronic devices. On these sites employees will share their opinions about everything from weather to politics. Most alarming to employers are the all too often employee job complaints and criticisms made via social media that are instantaneously disseminated to countless viewers. As such, it can not be doubted that these anti-work “status updates” can have far reaching backlash. However, even with the obvious concerns, employers must be wary when monitoring or requesting information on an employee or applicants social media usage as such could easily run afoul of recent state and federal precedent.

States Nationwide Begin Limiting Employer Access to Social Media Accounts

Effective as of January 1, 2013, Illinois has become the second state after Maryland to limit employer access to social media accounts and related information of both employees and job applicants. The law specifically provides:

“[It is] unlawful for any employer to request or require any employee or prospective employee to provide any password or other related [social networking] account information in order to gain access...or to demand access in any manner as to [such an account.]”
See H.B. 3782 (amending Illinois Right to Privacy in the Workplace Act).

In a statement made after signing the law into effect on August 1, 2012, Governor Pat Quinn explained, “Members of the workforce should not be punished for information their employers don’t legally have the right to have…[a]s use of social media continues to expand, this new law will protect workers and their right to personal privacy.”

Several other states have or are in the process of implementing their own social media privacy protection laws. Delaware recently became the first state protecting post-secondary students’ and applicants’ social media account information. Dozens of other states have introduced similar social media privacy protection bills.

Federal Law Imposes Sanctions on Employers Infringing Employees’ Social Media Privacy

Even if your state has no employee social media privacy rights law on the books yet, federal precedent also prohibits employers from accessing employees’ online account information. A cornerstone legal consideration as to employee privacy rights in stored wire and electronic communication is the Stored Communications Act (SCA). This Act prohibits third-party internet service providers (ISPs) from divulging to any third-person, absent a valid warrant, a customer’s content or internet usage. If an employer even attempts to access an employee’s stored electronic communications with an ISP the respective employee can seek, and mostly will be granted, a hefty civil remedy.

The SCA has been highly construed in favor of employees’ social media privacy rights, as seen in Pietrylo v. Hillstone Restaurant Group. In Hillstone, a group of employees created a MySpace online account for the purpose of complaining about their company. After discovering the account, managers for the company coerced two employees to give up their log-in ID and password for their MySpace page. After the company reviewed the content, the two employees were fired. On appeal from a jury verdict, the federal district court affirmed holding that the company had violated the SCA.

Take Away

As gleaned in recent state and federal precedent, an employer should never attempt to gain unauthorized access to an employee’s private ISP internet usage or other information contained on outside servers. Specifically, an employer should never ask for an employee’s log-in information or password for any outside internet site. An employer can monitor internet usage at work and can block social media sites as seen fit, but must do so uniformly.

If you have any questions, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Four Revised EEOC Question-and-Answer Documents Provide Updated Guidance for Employers During the Three Stages of Employment

Joe Jaskowiak
Joe Jaskowiak

Revised Documents Explain ADA Coverage of Diabetes, Epilepsy, Cancer and Intellectual Disabilities

On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) announced that it had issued four revised documents that explained the Americans with Disabilities Act’s (ADA) coverage for individuals with diabetes, epilepsy, cancer, and intellectual disabilities. The ADA, which was amended by the ADA Amendment Act of 2008 (ADAAA), is a federal law that prohibits discrimination against qualified individuals with disabilities that substantially limit one or more major life activities. These four revisions advance the goals of the EEOC’s recently announced 2012-2016 Strategic Plan while also reflecting the ADAAA’s expanded definition of disability.

The revisions are a part of a series of question-and-answer documents published by the EEOC that address and provide employer guidance on specific disabilities in the workplace. They provide answers to common questions posed by employers and/or employees that may have to address one or more of these four specific disabilities in the workplace. The documents provide: (1) when and how an employer may obtain relevant medical information from an employee or applicant; (2) what types of reasonable accommodations may become necessary; (3) how specific safety concerns should be addressed; and (4) what an employer should do to prevent and properly address any related workplace harassment.

These revised documents are an important resource for countless employers as the four disabilities are extremely prevalent in the United States. As EEOC Chair Jacqueline A. Berrian explained:

“Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability…[and] many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”


Definitions and Symptoms of the Four Addressed Disabilities

Cancer is a group of diseases characterized by the growth of abnormal cells due to both internal and external factors. In 2008, 12 million Americans were living with cancer, either active or in remission, and that number has been estimated to have since increased. The effect of cancer is wide ranging depending on the type, body location, and stage. The type of symptoms associated with cancer may be extensive and can keep employees from equal job opportunities. As a result of the ADAAA's expanded disability definition individuals with cancer should easily be found to have a protected disability as the disease commonly has, does, or is perceived to limit a major life activity.

Diabetes is a group of diseases that affect an individual’s endocrine system. It is characterized by defects in the body’s ability to produce and/or use insulin that results in high blood glucose or sugar levels. Insulin is a necessary hormone that enters the body’s cells and provides energy. Although diabetes is incurable, it is manageable. However, based on the type of diabetes and its impact on each individual, it can be very hard to manage. It is estimated that each year two million individuals are newly diagnosed with diabetes, and approximately 18.8 million adults in the United States have the disease. No matter the ameliorative effects of mitigating measures taken, diabetes will likely be determined to be a disability under the ADAAA.

Epilepsy, otherwise known as seizure disorder, is a neurological condition characterized by chronic, recurrent seizures. A seizure occurs when abnormal electrical activity in the brain causes an involuntary change in body movement or function, sensation, awareness, or behavior. Diagnosed individuals with epilepsy have had at least two seizures and may have experienced different types of seizures. The intensity and effects of seizures vary greatly, some lasting seconds and others minutes. Some people recover immediately while others will suffer side effects for days afterward. Each year approximately 200,000 new epilepsy diagnoses are made with almost three million presently diagnosed. Under the ADAAA, individuals with epilepsy will likely be found to have a covered disability.

An intellectual disability (formerly mental retardation) is a disability that is characterized by limitations both in intellectual functioning and adaptive behavior. This disability affects an individual's performance of basic skills needed in everyday life, including many everyday social and practical skills. Such a diagnosis is found when: (1) the person’s intellectual functioning level (IQ) is below 70-75; (2) the person has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical skills; and (3) the disability originated before the age of 18. These intellectual disabilities vary in severity from mild to severe. The majority of the 2.5 million Americans with intellectual disabilities are likely unemployed or underemployed, no matter their desire or ability to work. Intellectual disabilities will likely be covered under the ADAAA.

Limits on Questioning of Employees During Various Stages of Employment

The four revised documents explain the limits the ADAAA imposes on employers in their questioning of employees or potential employees with one or more of the four addressed disabilities at the three stages of employment: pre-offer, post-offer, and during employment. In summary the revised documents advise:

Pre-Offer

An employer can never ask a job applicant if she has a disability. Additionally, an employer can never require a job applicant, prior to a conditional job offer, to take a medical examination. However, the employer can ask the applicant questions pertaining to the applicant’s qualifications for and performance expectations and required functions of the position.

In the event a job applicant voluntarily discloses that they have a disability the employer may ask if an accommodation may be needed. However, an employer may not ask if the disability will require the applicant to take frequent leave or whether it is genetic. At no time may an employer ask any other individual any questions than they could not ask the applicant directly.

Post-Offer

After a conditional offer is tendered, an employer may ask the applicant questions about her health and may require a medical examination; however, all applicants must be asked the same health related questions and be required to take the same medical examination. Additionally, the medical exam must correlate to required activities of the job. In the event a disability is disclosed, the employer may ask the applicant the extent of her disability and may request the applicant to provide documentation from an appropriate professional answering specific questions designed to assess the applicant’s ability to safely perform job functions.

During Employment

Once employed, the ADA strictly limits the questions an employer may ask an employee about any potential or known disabilities as actual performance is the key measure of job performance ability. An employer may ask disability related questions or require an employee to undergo a medical examination only when they have objectively observed performance problems and reasonably believe such to be related to a medical condition. However, asking such questions and requiring a medical examination should be done as a last resort and only when performance is greatly affected. An employer should attempt to address any performance problems in accordance with the employer’s existing policies concerning performance.

If you have any questions, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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