Category: Civil Rights

Sixth Circuit Strikes Down Michigan Affirmative Ban As Unconstitutional

The National Law Review recently published an article by Bryan R. Walters of Varnum LLP regarding Michigan’s Affirmative Action Ban:

Varnum LLP

 

In Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) v Regents of the University of Michigan (6th. Cir. Nov. 16, 2012), the United States Court of Appeals for the Sixth Circuit, in an en banc decision decided on an 8-7 basis, held that the provision in Michigan’s Constitution prohibiting public colleges and universities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin (commonly known as “Proposal 2”) was unconstitutional.

The majority was careful to note that the Court was “neither required nor inclined to weigh in on the constitutional status or relative merits of a race-conscious admissions policy as such.  This case does not present us with a second bite at Gratz and Grutter – despite the best efforts of the dissenters to take one anyway.”  Id. at 9.  Rather, the Court framed the issue as follows:  “The sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions – something they are specifically allowed to do under Grutter.” Id.

The Court concluded that when an enactment (1) has a racial focus and “inures primarily to the benefit of the minority” and (2) reallocates political power in a way that places special burdens on a minority group’s ability to achieve its goals, that enactment violates the Equal Protection Clause of the constitution absent a compelling state interest to the contrary.  Id. at 15.  The Court held that Proposal 2 inured primarily to the benefit of racial minorities and that its enactment placed special burdens on racial minorities’ access to public education.  Id. at 18, 27.

Several of the dissenting judges wrote separate opinions voicing the reasons for their dissent.  In general, the dissents echo a similar theme – that Proposal 2’s mandate of non-discrimination in public education cannot be a violation of the Equal Protection Clause.  One dissent noted that the majority’s opinion was out of step with the decision by the United States Court of Appeals for the Ninth Circuit in Wilson (which is generally regarded as the most “liberal” circuit court of appeals) that “impediments to preferential treatment do not deny equal protection.”  Id. at 47.  Another dissent described thwae majority opinion as “the antithesis of the Equal Protection Clause of the Fourteenth Amendment.”  Id. at 70.  Given the obvious circuit split created between this decision and the Ninth Circuit’s decision in Wilson, it seems very likely that the issue will ultimately be decided by the United States Supreme Court.  Stay tuned.

© 2012 Varnum LLP

Social Media: The New Harassment Landscape Continued

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine.  With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies.  For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited  and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not.  Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct.  Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

Recently, The National Law Review published an article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Domestic Violence Victims:

 

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here. 

Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that might lead to charges of discrimination under Title VII include:

  • Terminating an employee after learning she has been the subject of domestic violence because the employer fears the possible “drama battered women bring to the workplace.”
  • Failing to select a male applicant after learning applicant obtained a restraining order against his male domestic partner because hiring manager believes men can’t be victims of domestic violence and should be able to protect themselves.
  • Allowing males a leave of absence to appear in court for the prosecution of an assault, but denying females leave to testify in domestic violence case.  Employer believes the former to be a “real crime” while the latter is “just a marital problem.”

The ADA prohibits discrimination based on actual or perceived impairments, and one can easily foresee situations when domestic/dating violence or sexual assault can result in such impairments.  Examples where employers may be found liable for unlawful disability discrimination under such circumstances include:

  • Deciding not to hire applicant employer discovers is the complaining witness in a rape prosecution and has seen a therapist for depression because employer believes applicant may need time off in the future to deal with symptoms or for counseling sessions.
  • Failing to address and stop harassment by co-workers regarding employee with facial scars/skin grafts resulting from attack by former domestic partner.
  • Failing to accommodate an employee not eligible for FMLA leave by refusing to give her time off to seek treatment for depression and anxiety following a sexual assault.  The employer tries to justify the refusal by stating that leave and attendance are uniformly applied to all employees.
  • Failing to honor an employee’s request for reassignment to available vacant position at different location for which she is qualified when ex-boyfriend who currently works in the same building is stalking her, causing her major depression.  Employer cites “no transfer” policy as reason for refusal.
  • (Supervisor) disclosing to other co-workers an employee’s post-traumatic stress disorder resulting from incest.

Although these are the examples given by the EEOC, indirect discrimination allegations under Title VII and the ADA can arise in numerous situations that would not necessarily be readily apparent to even well-trained and sophisticated employers. Of course, it is always a good idea to seek guidance from experienced employment counsel when employers are given pause about an employment decision, even when the employer is not entirely sure why they might be hesitating.

© 2012 BARNES & THORNBURG LLP

EEOC Continues Focus on Religious and National Origin Discrimination Involving Muslim and Arab Communities

The National Law Review recently published an article by Robert B. Meyer and David L. Woodard of Poyner Spruill LLP, regarding Discrimination:

 

The U.S. Equal Employment Opportunity Commission has announced on its website that it continues to focus on what it considers to be ongoing religious and national origin discrimination in the workplace, especially against Muslim, Sikh, Arab, Middle Eastern, and South Asian Communities.  The EEOC reports that in the initial months after the September 11, 2001 terrorist attacks, the Commission saw a 250% increase in the number of religion-based charges involving Muslims.  Since that time, the EEOC states that it has continued to track an increase in such charges, as well as those alleging national origin discrimination against those with Middle Eastern background.  While the Commission does not specify how many of those charges were found to have merit, it does report that it has filed nearly 90 lawsuits against employers, many of which involve alleged harassment on the basis of religion and national origin.  Thus, it is apparent that the EEOC is aggressively pursuing investigation and enforcement activities in this area.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or job applicants on the basis of religion or national origin.  The harassment of individuals because of their religion or national origin is also prohibited.  Through its interpretations of Title VII, The EEOC has recognized a wide range of actions and conduct that may be potentially unlawful, including: disparate treatment, teasing or insults because of a person’s appearance, customs, language, or accent; requiring employees to speak English in the workplace; disparate treatment, jokes, or insults toward an employee because of the national origin or religion of that person’s spouse; and adverse actions based on perceptions of an employee or applicant’s national origin or religion.

It is important to note that in addition to these prohibitions against discrimination and harassment, Title VII also requires employers to reasonably accommodate the religious practices of an employee or applicant, unless doing so would cause an “undue hardship” for the employer.  The EEOC has suggested that reasonable accommodation may include, for example, providing employees with leave to attend religious observances, providing time and/or a place to pray, and permitting employees to wear religious attire in the workplace.  However, the issue of accommodation requires the employer to consider each request for accommodation on a case-by-case basis in order to determine whether accommodation is possible and reasonable under the circumstances.

The EEOC also states that it has “intensified its outreach” to educate employees in this area of the law by issuing fact sheets on immigrant employee rights, employment discrimination based on religion and national origin, and employer responsibilities under Title VII with respect to the employment of Muslims, Arabs, South Asians, and Sikhs.  These fact sheets provide specific examples of prohibited conduct in the workplace, and also offer instructions on how employees may file charges with the EEOC.  Therefore, and in view of the EEOC’s emphasis on this particular form of discrimination, employers should review carefully these fact sheets as a part of their proactive compliance and training measures.  Employers should also remember that retaliation against anyone who files a charge or otherwise opposes unlawful discrimination is expressly prohibited under Title VII.

© 2012 Poyner Spruill LLP

NLRB Strikes Down Employee Handbook Language and Issues First Social Media Decision

The National Law Review recently published an article by Doreen S. Davis, Jonathan C. Fritts, Ross H. Friedman, and David R. Broderdorf of Morgan, Lewis & Bockius LLP regarding the NLRB and Social Media:

 

Continuing its aggressive foray into nonunion workplaces, the NLRB has weighed in on social media and employee handbook issues, finding certain language to be unlawful under Section 8(a)(1) of the National Labor Relations Act.

In September, the National Labor Relations Board (NLRB or Board) issued two decisions confirming that it will now use Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) to find basic (and widespread) handbook and policy language to be unlawful even when it does not involve protected activity under Section 7 of the NLRA. In Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012),[1] the Board reviewed a variety of handbook provisions protecting certain confidential information and found them unlawful under the Act. The Board’s more recent decision in Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012),[2] built on the Costco decision and deemed that a rule requiring workplace courtesy violated Section 8(a)(1). The Knauz case is the Board’s first decision in a case involving posts to the social media website Facebook. Given the Board’s expansive interpretation of Section 8(a)(1), it is likely that one or both of these decisions could face appellate court scrutiny in the near future.

Costco Wholesale Case

In its Costco decision, issued on September 7, the Board found that the following policy language was unlawful under Section 8(a)(1) of the NLRA:

  • Prohibiting “unauthorized posting, distribution, removal or alteration of any material on Company property.”
  • Discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
  • Disseminating “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security numbers, or employee personal health information.” The policy stated that such information “may not be shared, transmitted, or stored for personal or public use without prior management approval.”
  • Sharing “confidential” information, such as employees’ names, addresses, telephone numbers, and email addresses.
  • Electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation.”

The Board’s decision confirms that even basic policy language common in nonunion workplaces will be struck down if there is a reference to one “inappropriate” item. In this case, a reference to “payroll” information (as in the third bullet above) rendered an entire section unlawful. As a result, employers should carefully review their employee handbooks to avoid an adverse finding by the NLRB.

Knauz Case

Knauz—issued on September 28, three weeks after Costco—involved a nonunion car dealership with a handbook provision stating that

[c]ourtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board majority found this rule unlawful under Section 8(a)(1) of the NLRA because employees would reasonably view the prohibition against “disrespectful” conduct and the “language which injures the image or reputation of the Dealership” to encompass Section 7 activity. Employees who wished to avoid discipline, according to the majority, would mind this rule in the context of disputes related to wages, hours, or terms and conditions of employment and therefore would be inhibited in exercising NLRA rights. It also is noteworthy that the Board upheld, in a footnote, the administrative law judge’s (ALJ’s) dismissal of the allegation that the dealership fired an employee based on his Facebook postings about an automobile accident at one dealership. These Facebook postings were deemed unprotected under Section 7. The judge had reasoned that the employee posted the information apparently “as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The one Republican NLRB member, Brian Hayes—who was not on the panel for theCostco case—issued a dissenting opinion on Knauz. Member Hayes discussed the Board’s overreach in applying Section 8(a)(1) and cited a great deal of precedent in support. He also signaled that the appellate courts likely would pare back the Board’s recent expansion into the world of employee handbooks and social media policies. Specifically, Member Hayes cited case law holding that the Board must not review policy language in isolation or come up with a theory whereby employees “conceivably could construe [language] to prohibit protected activity,” as opposed to whether they “reasonably would do so.” Member Hayes pointedly argued that the majority’s “analysis instead represents the views of the Acting General Counsel and Board members whose post hoc deconstruction of such rules turns on their own labor relations ‘expertise.'”

Conclusion

While the Acting General Counsel’s view and the views of some ALJs on these issues have been widely publicized, the decisions in Costco and Knauz provide the first look at the Board’s majority view. The law is changing, and handbook language should be reviewed to determine if the language “could be” read to restrict Section 7 activity, even with a strained interpretation. The Acting General Counsel will continue to prosecute these types of cases against nonunion employers, which constitute 93% of all private sector workplaces. While many employers have already reviewed their policy language based on the legal developments in this area over the past several years, as developed by the Acting General Counsel’s three guidance memoranda, the Costco and Knauz decisions provide another opportunity to review policy language in order to minimize the risk of a violation. Notably, unions have and will continue to use handbook policies to threaten and file unfair labor practice charges against an employer at strategic times—including organizing campaigns and collective bargaining negotiations.

[1]. Read the Costco decision at here.

[2]. Read the Knauz decision here.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

Seventh Circuit Reverses Course on Reassignment Accommodation, Leaving United Airlines Grounded

An article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Reassignment Accommodations, recently appeared in The National Law Review:

 

In arguably its most significant decision under the Americans with Disabilities Act (ADA) in years, the Seventh Circuit, in EEOC v. United Airlines, Inc., reversed its own previous holdings regarding the viability of competitive transfer policies for disabled employees. The case can be found here.

For over a decade, employers in the Seventh Circuit have been able to rely onEEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), to adopt perfectly valid policies allowing for disabled employees who can no longer perform the essential functions of their current jobs to be considered for reassignment on a competitive basis.  In other words, if a more qualified candidate sought the same position as the disabled candidate, the employer could select the best-qualified candidate without running afoul of the ADA.  No longer, says the Seventh Circuit.

The circuit court held that under the Supreme Court precedent of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (requiring an employee to show that an accommodation is reasonable on its face, which then shifts the burden to the employers to demonstrate case-specific undue hardship), reassignment of a disabled but qualified employee to a vacant position is mandatory in the absence of an undue hardship.  Despite reaffirming its best-qualified candidate rule even after Barnett was decided (reasoning that that ADA does not require preferential treatment and that violating facially-neutral employment policies creates an undue hardship), the Seventh Circuit decided last week that it had been wrong all along:  the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”

The importance of this new automatic reassignment interpretation cannot be overstated.  Indeed, questions about an employer’s reassignment obligations are among the most frequently received inquiries by attorneys under the ADA.  United Airlines, whose policy in question provided for preferential treatment of disabled employees, although not for automatic reassignment for those who were qualified – meaning the company actually went beyond what the Seventh Circuit required it to do before last week – must feel blindsided by the court.  Indeed, this Seventh Circuit panel issued an earlier version of an opinion in this case dismissing the lawsuit under Humiston-Keeling before vacating that decision and issuing a new opinion.

Obviously, employers in the Seventh Circuit (and likely beyond, as the D.C. and Tenth Circuits provide for automatic reassignment, and the Eighth Circuit relied onHumiston-Keeling in deciding that competitive transfer policies were legal) will need to adjust their reassignment policies for disabled employees.  In light of this new ruling, it is critical to consult with experienced counsel to navigate what is likely uncharted territory.

© 2012 BARNES & THORNBURG LLP

Smartphones – 24/7 Access: When are employees off the clock?

The National Law Review recently published an article by Cynthia L. Effinger of McBrayer, McGinnis, Leslie and Kirkland, PLLC regarding Smartphones and Employees:

With instant access to all things via smartphones and the internet, it has become increasingly easy for employees and employers to stay connected to work all the time. Smartphone access and being constantly connected is part of our professional make-up, and necessary to keep pace with the speed of the information highway. Right? Connectivity is firmly woven into everyday business practices but at what price?

If your company issues smartphones or similar devices to all or some of its employees so they can stay in touch, checking emails or responding to phone calls after-hours or on the weekends; your company could be at risk for ‘off-the-clock’ lawsuits.  The Fair Labor Standards Act (“FLSA”) requires employers to compensate non-exempt employees overtime pay for any time worked beyond a 40-hour workweek. Exempt employees (so long as they are classified correctly), are the exception. Under FLSA failure to pay an employee wages and overtime due will result in serious fines, and is a growing area of class action law suits.

Being smart about smartphones usage by employees is crucial. It is essential to have a clear electronic-use policy that outlines specific guidelines explaining work hours and use of any such device (laptops, tablets and phones). As an employer you are financially responsible for work hours that are requested and voluntary. Which means if a non-exempt employee is using a smartphone (company issued or personal) outside of work hours, for work purposes – even when not required or requested – the company is responsible for overtime pay to that employee for the hours worked. So, an electronic use policy needs to be very specific about what is permitted and what is prohibited.

Of course it is not enough to have a policy in place, it must be enforced. To enforce such a policy that applies to work performed after-hours and off-premises, the employer must institute a strong system of reporting and monitoring the activity. This could include a specific time-recording tool, as well as an essential versus non-essential activity list, which could temper an employee’s overtime.

There is a “de minimus” rule, which has been adopted in several federal court proceedings that classifies minimal time spent checking or replying to emails or texts as not compensable.  However, if the employee tracks and presents the aggregate of these de minimus actions, the time often becomes comprehensive enough for an overtime claim.

Having the correct system and policy in place to control smartphone usage is no longer an afterthought; it is an essential element of employment and a critical policy. Smartphones have changed the way we work, and as in many areas of business, technology surpasses our ability to keep up with the changes it creates. If you don’t have an electronic-use policy in place, we recommend you make it priority number one for the HR Department. Have it reviewed by an attorney, educate your staff and enforce its rights and restrictions.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

New York Enhances Employee and Consumer Privacy Rights Under its Social Security Number Protection Law

Four years ago, New York enacted a Social Security Number Protection Law, N.Y. Gen. Bus. Law, §399-dd, aimed at combating identity theft by requiring employers to better safeguard employee social security numbers in their possession.  (Click here for our summary of the law).  Now, New York is going one step further with its passage of two new Social Security Number Protection laws.

First a note: as of November 12, 2012, §399-dd – the original Social Security Protection Law – will be re-codified as new §399-ddd, and it will also add the statutory language of the first of these two new laws, which prohibits employers from hiring inmates for any job that would provide them with access to social security numbers of other individuals.

The second law, which is codified as a separate new §399-ddd, enhances the requirements for safeguarding employee social security number while also adding similar protections for consumers.  This law prohibits companies from requiring employees and consumers to disclose their social security numbers or to refuse any service, privilege or right to the employee or customer for refusing to make that disclosure, unless (i) required by law, (ii) subject to one of its many exceptions, or (iii) encrypted by the employer.  This law also applies to any numbers derived from the individual’s social security number, which means that it extends, for example, to situations where the company asks the individual for the last four digits of their number.  It is unclear whether this law will prove effective in accomplishing its objectives.

First, it contains an exception with the potential to swallow the rule – where the individual consents to the use of the social security number, which many individuals may freely provide absent knowledge of this law’s protections.  Even with an employee’s consent, however, employers must still be mindful that other provisions of the original Social Security Number Protection Law requires them to institute certain safeguards to protect against the number’s disclosure.  And further, even if the employer obtains the employee’s consent, the original law still prohibits employers from utilizing an employee’s social security account number on any card or tag required for the individual to access products, services or benefits provided by the employer.

Second, the penalties for violations are minimal – up to $500 for the first violation and $1,000 for each violation thereafter, and can be avoided where the employer shows the violation was unintentional and occurred notwithstanding the existence of procedures designed to avoid such violations.  Further, there is no private right of action, and only the Attorney General can enforce the law.

Governor Cuomo signed the acts into law on August 14, 2012.  The inmate law will take effect on November 12, 2012 and the disclosure law will take effect thirty days later on December 12, 2012.  Now if he would only sign the recently passed wage deduction law.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

FTC Proposes New Rules on Children’s Online Privacy Issues

Michelle Cohen of Ifrah Law recently had an article regarding Children’s Online Privacy published in The National Law Review:

On August 1, 2012, the Federal Trade Commission announced that is issuing a Supplemental Notice of Proposed Rulemaking to modify certain of its rules under the Children’s Online Privacy Protection Act (COPPA). Industry has been waiting on FTC action regarding COPPA, as the agency previously undertook a COPPA rulemaking in September 2011 and proposed modifying certain COPPA rules to account for changes in technology, particularly mobile technology.

The FTC received over 350 comments during that time. After reviewing those comments, the FTC has decided to propose certain additional changes to its COPPA rule definitions.

In summary, COPPA gives parents control over the information websites can collect from their kids. It applies to websites designed for children under 13 – or those that have reason to know they are collecting information from a child. It requires a specific privacy notice and that consent be obtained from parents in many circumstances before children’s information may be collected and/or used.

The FTC has proposed several changes that are of interest. Some are meant to “tighten” the COPPA rule, others are meant to provide some additional flexibility to operators.

  • The proposed change would make clear that an operator that chooses to integrate the services of third parties that collect personal information from visitors (like ad networks or plug-ins) would itself be considered a covered “operator” under the Rule.
  • The FTC is also proposing to allow websites with mixed audiences (e.g., parents and over 13) to age-screen visitors to provide COPPA’s protections only to those under 13. However, kid-directed sites or services that knowingly target under-13s as their primary audience or whose overall content is likely to attract kids under that age could not use that method.
  • Also, the FTC has proposed modifying the definition of what constitutes “personal information” relating to children to make it clear that a persistent identifier falls within that definition if it can be used to recognize a user over time or across different sites or services. The FTC is considering whether activities like site maintenance and analysis, use of persistent identifiers for authenticating users, maintaining user preferences, serving contextual ads, and protecting against fraud and theft should not be considered the collection of “personal information” as long what’s collected is not used or disclosed to contact a specific individual, including through the use of behaviorally-targeted advertising.

Comments on the FTC’s proposed rule changes are due by September 10, 2012.

© 2012 Ifrah PLLC

Illinois Employers Beware: New Law Prohibits Employers from Seeking Social Media Password Information

The National Law Review recently published an article regarding Social Media Passwords and Illinois Employers written by Norma W. Zeitler of Barnes & Thornburg LLP:

Employers in Illinois will be prohibited from seeking social networking password information from employees and applicants starting Jan. 1, 2013, now that Illinois Governor Pat Quinn has signed into law Public Act 097-0875, which is an amendment to the Right to Privacy in the Workplace Act, 820 ILCS 55/10.

As we previously reported , the legislation makes it unlawful for an employer to require an employee or applicant to disclose passwords or other related social networking account information in order for the employer to access information that might otherwise be considered private by the employee or applicant. However, employers are not barred from accessing information that is in the public domain

Illinois becomes the second state, after Maryland, to enact such a law, according to a press release from Governor Quinn’s office announcing that he signed the legislation into law on August 1. The new law does not limit an employer’s right to promulgate and maintain otherwise lawful workplace policies regarding the use of the employer’s computer equipment, Internet use, social networking site use, and electronic mail use.

Illinois employers should consider reviewing existing policies and practices with an eye toward ensuring compliance with this new law.

© 2012 BARNES & THORNBURG LLP