Seth Leventhal writes about a very interesting case on his Minnesota Litigator blog today.  A father in a custody dispute gave his daughter a teddy bear with a listening device inserted in it.  The father’s lawyer then used the recordings in the divorce proceedings.  The Court ruled that the father had violated the federal Wiretap Act by intercepting communications without authorization, and the the lawyer was also liable under the statute for using the illegal recordings.

More background on monitoring employee activities may be found here.

Very interesting article in today’s New York Times about hospitals and other medical businesses adopting policies that prohibit the hiring of smokers in an effort to increase worker productivity, reduce health care costs and encourage healthier living.

Even some anti-tobacco groups are uncomfortable with the policies, however.  One professor is quoted in the article as saying: “If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences.  Unemployment is also bad for health.”   One concern is that such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding. “There is nothing unique about smoking,” said Lewis Maltby, president of the National Workrights Institute. “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?”

The article points out that more than half the states, after lobbying by tobacco companies and the ACLU,  have passed laws rejecting bans on smokers.  Minnesota is one of those.  In 1992, it passed the “lawful consumable products” act, prohibiting employers from refusing to hire a job applicant, or discipline or discharge an employee, for the “use or enjoyment of lawful consumable products” off the premises during nonwork hours.  There is an exception, however, if the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities.  Query whether this gives health care companies the right to restrict non-healthy behavior.

The Times article points out that about 1 in 5 Americans still smoke, and smoking remains the leading cause of preventable deaths. And employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.

It looks like the National Labor Relations Board will not weigh in on the use of Facebook in the workplace anytime soon.

I wrote here about the Complaint brought by the NLRB against a Connecticut ambulance company that fired an employee after she criticized her supervisor on Facebook.  The NLRB announced yesterday that it had reached a settlement to resolve the  complaint against American Medical Response of Connecticut Inc.

Among the issues in the case was whether a worker has the right to criticize a boss on a site such as Facebook if co- workers add comments. The case was the first by the NLRB to assert that employers break the law by disciplining workers who post criticisms on social-networking websites.

Under the settlement, American Medical Response will revise its “overly broad rules” to ensure that they don’t improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they wouldn’t discipline or discharge employees for engaging in such discussions, the NLRB said in a statement.  The company also promised that employee requests for union representation when meeting with managers won’t be denied in the future, and that employees won’t be threatened with discipline for requesting union representation, according to the agency.

As I’ve said before,  employers need to  review their Internet and social media policies to ensure that they cannot be viewed as an improper effort to prohibit employees from exercising their rights to discuss wages, working conditions and unionization.  Second, employers should not discipline or terminate an employee for making disparaging remarks until it has considered whether those remarks might be protected.  The NLRB seems to be ramping up its efforts in this area, so employers need to be especially careful.

According to the ABA Journal, when a 60-year-old Internal Revenue Service agent advertised a furnished room for rent in his Florida townhome, it came with some unadvertised features.   In additional to the DVD/VCR player, the room also contained a hidden camera pointed at the bed of the young woman who rented the room. 

Revenge is sweet, however:  the renter recently won a $476,000 verdict from a Broward County jury in an invasion of privacy case.I wonder if the defendant will try to deduct the judgment from his taxes.

I previously wrote here about the NLRB’s claim that an employee was unlawfully fired for criticizing his boss on Facebook.  Now, the Wall Street Journal has a very good article discussing that case and others involving social media in the employment context.

The Supreme Court ruled today on the privacy turducken case I first wrote about here.  Not surprisingly, it favors the government’s right to conduct background checks over an individual’s right to privacy.

In its decision in National Aeronautics and Space Administration v. Nelson, the Court held that the government has the right to ask reasonable questions of contractors in an employment background investigation subject to safeguards against public disclosure.

Plaintiffs were contract employees at NASA’s Jet Propulsion Laboratory. At the time they were hired, they were not subject to government background checks. However, after 9/11, the Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check. The background check involved completion of a standard form that asked employees about drug use within the past year.  The plaintiffs particularly objected to requests for information from schools, landlords, employers and other third parties, especially “adverse” information about alcohol and drug use; finances; and mental or emotional stability.  One form also gives informants space to provide “derogatory” information about the subject.

The plaintiffs claimed that the background check violated their constitutional right to informational privacy. The Ninth Circuit Court of Appeals ruled for the plaintiffs, holding that although the inquiries furthered the government’s interest in combating illegal drug use, certain questions about drug treatment or counseling furthered no legitimate interest and thus were likely to be held unconstitutional. It also held that a questionnaire sent to employees’ references contained open-ended questions not narrowly tailored to meeting the government’s interests in verifying contractors’ identities and ensuring facility security and thus also likely violated plaintiffs’ informational privacy rights.

The Supreme Court today reversed.  While acknowledging that it has recognized a constitutional interest in “avoiding disclosure of personal matters,” and assuming that the challenged inquiries implicated a privacy interest of constitutional significance, it nevertheless found that this privacy interest did not prevent the government from asking reasonable questions in an employment background investigation subject to safeguards against public disclosure.

The Court held that the government has broad discretion to collect personal information for purposes of managing its internal operations. It also noted that the history of government background checks shows that the government had an interest in conducting basic background checks to ensure security of its facilities and to employ a competent, reliable workforce, and the fact that plaintiffs were contract employees did not diminish this interest. The Court also rejected the argument that the government has a constitutional burden to demonstrate that its employment background questions are necessary or the least restrictive means of furthering its interests.

Finally, the Court noted that information gathered during the background check was subject to substantial protections against public disclosure.  The Privacy Act, for example, allows the government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law; requires written consent before the government may disclose an individual’s records, and imposes criminal liability for willful violations of its nondisclosure obligations.

Very interesting article in today’s NY Times about the struggle to find a balance between an employer’s duty to keep its workplaces safe and an employee’s right to privacy in the context of testing employees for the presence of certain prescription.  One company in Tennessee has been sued by three different employees who were fired because the company judged that pain medication they were taking made them a hazard to co-workers.

“The growing reliance of Americans on powerful prescription drugs for pain, anxiety and other maladies suggests that many are reporting to work with potent drugs in their systems, and employers are grappling for ways to address that.  What companies consider an effort to maintain a safe work environment is drawing complaints from employees who cite privacy concerns and contend that they should not be fired for taking legal medications, sometimes for injuries sustained on the job.”

One provider of workplace drug tests has found that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year alone. Workers who were tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

As one employer’s representative put it:  “Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”

And don’t think it is just a problem for blue collar workers.  In Texas, a prosecutor resigned in 2008 after a scandal for which he blamed impaired judgment because of prescription drugs. And in Missouri, a patient sued alleging that a doctor had torn a hole in his colon during a 2006 colonoscopy while taking the painkiller oxycodone.

The Americans with Disabilities Act plays a central role in the issue.  The act generally prohibits asking employees about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons.  As one EEOC lawyer put it:  “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.”

Of course, the laws on drug testing are complex and vary from state to state. Minnesota has one of the most rigorous; it prevents employers from doing any drug testing without having a written policy and various protections in place.  Employers can ask workers in safety-sensitive jobs to self-report any potentially dangerous prescription medications, but they cannot ensure they do so.

Experts recommend that employers develop a thorough and consistent policy that spells out which drugs their workers might be tested for and under what circumstances.   In addition, supervisors should be carefully trained to look for signs of impairment — the “reasonable suspicion” necessary under law to warrant testing.

My friend Joel Schroeder at Faegre & Benson has written a terrific article on using social media in litigation, as well as some ideas for discovering it in the first place.  It has lots of good lessons for both litigators and their clients.

British employer Everything Everywhere has provided employers on both sides of the Atlantic with a great public service: how not to announce a reduction-in-force.

It seems the mobile phone company, which was created by the merger of Orange and T-Mobile, had to advise its 16,000 employees whether or not their jobs were safe following the merger.  It hit upon a novel plan.  The company arranged for mass meetings of employees at locations across England.  At those meetings, the employees received a color-coded messages on their cell phones: those who saw a red light were told they were “at risk”. Other staff saw the light go yellow, which meant they must re-apply for their existing job. A blue light indicated their job had been “mapped” into the new business plan and were being kept on. A green light showed the creation of a limited number of new roles.

The presentations were made in public in front of between 30-60 colleagues. Some employees are thought to have had no idea that their jobs were at risk before the humiliating public meeting. One employee said: “Some of the people got up and walked straight out of the room, others sat there crying, others were absolutely dumbstruck.”

5 points for originality and use of technology,  -5 points for compassion.

Hat tip:  http://lawprofessors.typepad.com/laborprof_blog/

Supporters of such laws say they are necessary because an increasing number of employers are doing credit checks even though there is no proof that bad credit is a marker of risky employees.  They say the practice unfairly injures the huge pool of people whose credit was damaged by layoffs, medical bills or other factors beyond their control. They also say it disproportionately screens out minorities.  “Bernie Madoff had a pretty good credit score,” said Matthew Lesser, a Connecticut state representative.

The limited research on the topic seems to support the new laws.  Even a spokesman for one of the credit reporting companies acknowledges that there is no research to show any statistical correlation between what’s in somebody’s credit report and their job performance or their likelihood to commit fraud.

Advice to employers:  only use credit report history when there is some correlation between that information and the position in question, such as those that regularly handle money.  And only use the credit report as one factor among several in evaluating candidates.