Wednesday, November 20, 2013

Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content!

Evolving and new technology will always present new issues and questions for present laws.  In the employment law context, a trend that has been around for quite some time is employers providing employees with smart phones, which allow people to store all kinds of personal information from pictures, to text messages, to emails.  The issue then becomes, if the phone is property of the employer, does the employee have an expectation of privacy if they choose to store personal content in the phone?  A former employee of Verizon in Ohio has sued asserting her right to privacy.

The case, Lazette v. Kulmatycki (N.D. Ohio, June 5, 2013), involves a former Verizon employee, Sandi Lazette, who was issued a Blackberry.  Lazette chose to use the phone to receive and send personal emails from a Gmail account with the employer's permission.  When Lazette went to leave her job with Verizon and turn the phone in, she thought she deleted the Gmail account from the phone as it was known the phone would be given to another employee but she did not delete the account properly and her former supervisor reviewed her emails.  Lazette sued Verizon and her supervisor for violating the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and her common law right to privacy, among other things.  The Defendant filed a motion to dismiss which was granted in part and denied in part (the Order is available here).  The SCA claim and state common law claims survived the motion to dismiss.

The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.  While the court largely rejected Defendants’ assertions, it did find in favor of Defendants--at least partially--with regard to the question of whether all of the accessed emails had been in “electronic storage”--a question that would affect liability under the SCA, which narrowly defines "electronic storage."

Though this case may not have huge implication on Wisconsin law, it will certainly be interesting to see how this case plays out as it is an issue certain to become bigger as technology and employer-issued smart phones are used in the workplace.

November Edition of the Employment Blog Carnival is Live!

Attorney Eric B. Meyer over at his blog, "The Employer Handbook," hosted this month's edition of the employment law blog carnival.  Check it out here!

Tuesday, November 12, 2013

Pregnancy Accommodation in the Workplace May Be Decided by Supreme Court

Apparently the Supreme Court of the United States asked the Solicitor General's opinion last month as to whether to accept the case of Young v. UPS for next year’s term.  For those that don't know, Young was a delivery driver for UPS who became pregnant and was not able to return to work due to a lifting restriction imposed by her physician.  Thus, UPS was unable to return to her previous position as a delivery driver during her pregnancy.  This then prompted Young to request a temporary light duty assignment.

Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only in specific situations. UPS offered light duty assignments to employees who were injured on the job, who were suffering from a disability as defined by the Americans with Disabilities Act (ADA), or to drivers who lost their Department of Transportation certification due to, among other things, failed medical exams. As pregnancy itself is not considered a disability under the ADA, under UPS’s policy and the CBA Young was ineligible for light duty work based on limitations arising solely as result of her pregnancy.

Young then sued after she went on an extended, unpaid leave of absence, claiming that UPS' policy of providing light duty work to some employees but not to pregnant workers like herself violated the Pregnancy Discrimination Act under Title VII.  However, both the district and the Fourth Circuit Court of Appeals ruled in favor of UPS because current laws regarding pregnant employees do not provide for any extra protections than are provided for other temporarily-disabled employees.

This will be interesting to watch if the Supreme Court grants writ and hears this case since there have been efforts to pass legislation providing the type of protection that would have covered Young--the Pregnant Workers Fairness Act.  If the Supreme Court ultimately finds UPS violated the Pregnancy Discrimination Act, it may invalidate the need for passage of the Pregnant Workers Fairness Act.

Monday, November 4, 2013

Boehner Claims ENDA Would Spark Litigation Avalanche, Statistics Not Supportive

Earlier today the Employment Non-Discrimination Act passed vote  to end debate in the Senate 61-30.  A final vote is expected this Thursday in the Senate with passage in the House looking very dim.  Recently, Speaker John Boehner (R., Ohio), in voicing objection to passage of the bill stated that "...[t]his legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,”  However, data and statistics according to a report released in July by the U.S. Government Accountability Office. The agency examined the number of complaints filed in the 21 states – 22, including the District of Columbia – with laws on the books forbidding discrimination against lesbian, gay and bisexual workers. Eighteen of those states also ban workplace discrimination on the basis of gender identity, which would apply to transgender people.  From the Wall Street Journal article on the Speaker's remarks:
The data “show relatively few employment discrimination complaints based on sexual orientation and gender identity,” the GAO found. The agency looked at data provided by the states for the years 2007 to 2012. 
In Wisconsin, for example, only 69 of the 3,383 employment discrimination grievances filed in 2012 – or 2% — included sexual orientation as a basis. In Oregon, it was 30 out of 1,676 complaints (1.8%); in New York, 243 out of 5,032 (4.8%); and in California, 1,104 out of 19,839 (5.6%). 
The low numbers partly reflect the fact that only a small percentage of the U.S. population identifies as gay, lesbian or bisexual – 4%, according to the Williams Institute, a research organization based at the University of California School of Law. The Institute estimates that 500,000 Americans are transgender.
Though Wisconsin  provides for protection against employment discrimination on the basis of sexual orientation, further protection at the federal level would better protect employees as the remedy available for a violation found under the Wisconsin Fair Employment Act (WFEA) is limited to a make-whole remedy (i.e., back pay, attorney's fees, lost benefits, etc).  ENDA would provide for similar remedies as other federal anti-discrimination laws in the form of punitive and/or compensatory damages.  Stay tuned!