Several mid-week updates on a variety of topics.
The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today. Their opinion(s) are expected in several months. I will update you on this topic once a decision is rendered.
In the meantime, the Alabama Legislature is working on potential amendments to HB56. I have not reported on this, and will not, until it becomes law. When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.
There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts. Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law. Many other states are considering passing such laws. Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.
For employers that do ask for passwords to social media sites, and actually look at them, caution is advised. Learning too much information can lead to lawsuits. Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws. The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment. This could lead to a push for unionization by the workforce at employers who ask for passwords
Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed. Yesterday, the Senate blocked an attempt to delay the implementation of the rules. There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules. I posted about the new rules on December 7.
EEOC RULES ON TRANSGENDER PROTECTION.
The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII. Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix. At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male. After applying, Macy went through a transition and became a female. Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts. In fact, the job had been filled with someone else. Macy filed a complaint with the EEOC alleging sex and gender discrimination. The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions. The EEOC's enforcement activities will apply in both the public and private sectors.