Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

On Monday, December 14, the U.S. Supreme Court agreed to hear arguments in a case from the 9th Circuit (which includes California) to address whether employees of a governmental agency have a constitutional right to privacy in their text messages, sent and received on text pagers provided by the city of Ontario. The Los Angeles Times reported that police officers for Ontario were issued text pagers and advised that there was a limit of 25,000 characters a month, and any text over that limit would have to be paid for by the individual officers.  It was understood by the officers that some messages would be personal in nature and not related to their police work.  When the police chief learned that some officers were regularly exceeding the 25,000 character limit, he asked for an audit.  Arch Wireless, which was the service provider, sent transcripts  of the text messages to the chief, and the chief determined that the officer who filed the suit, Quon, had sent numerous personal messages, including to his girlfriend, who was also an officer, and they were sexually explicit.  Both the city and the wireless provider were sued by Quon and other officers after they learned that their text messages were read by the chief.  The trial court dismissed their suit, but the 9th Circuit overturned the ruling, finding that the reading of the messages was an "unreasonable search" prohibited by the 4th Amendment, and that Arch Wireless violated the Electronic Communications Privacy Act of 1986 by providing the contents of the text messages to the city. 

Practice pointer.  The Supreme Court's decision in this matter will help define the parameters of employee's privacy in the workplace.  Even though this case involves a governmental agency, it ramifications will most likely impact the private workplace as well. 

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Last week, the Federal District Court in Maryland ruled that federal contractors must use the E-Verify system to confirm the eligibility of all newly hired as well as current employees working directly on a federal contract.  Unless there is a stay pending the appeal of this order, starting September 8, most federal contracts must include a provision mandating the use of the E-Verify system.  The United States Citizenship and Immigration Services has a website with frequently asked questions dealing with E-Verify.  A copy of the court's decision can be found here.

E-Verify is also having an impact on the state of Alabama.  Effective January 1, 2010, the city of Huntsville will require any city contractor to use the E-Verify system to screen employees.  According to the Huntsville Times, Councilman Bill Kling  "called it a "very modest proposal" to try to deter illegal immigration in a way that won't get the city sued."   Huntsville's new E-Verify requirement applies to any vendor with a city contract that totals $15,000 or more. 

Last week, at our regularly scheduled employment law seminar, Kelli Robinson spoke on how to conduct an I-9 audit.  She pointed out that U.S. Immigration and Customs Enforcement (ICE) launched an audit initiative in July by issuing Notice of Inspection to 652 businesses.  This is more notices than ICE issued in all of 2008.  With ICE data mining the E-Verify database to determine if employers are using the system to verify all workers and terminate those after receipt of final non-confirmation of work authorization, there may be more audits coming in the near future.  ICE is also using the information to detect identity theft, where the same social security number or permanent resident card is being used at multiple locations. 

Practice Pointer.  Now that Huntsville has adopted the use of the E-Verify system, I anticipate that other cities and counties, and maybe even the state, will require contractors to use the E-Verify system to check the legality of their workforce.  With the increasing use of the E-Verify system, more audits are likely by ICE for government contractors and others who are required to use the system.  Employers should audit their I-9 files to make sure that they are in compliance with immigration laws.

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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 Facebook, Inc. effective Saturday, June 13th, announced that users of the Facebook website will be allowed for the first time to create personalized URLs for their Facebook pages (facebook.com/yourname). There is a risk that some Facebook users will attempt to incorporate third party brands into their personalized Facebook usernames.

Facebook, Inc. has created an online form for rights owners of registered trademarks interested in preventing their trademarks from being registered as usernames by Facebook users.  Unfortunately, time to register your trademark has expired. 

Trademark owners, if there is an infringement on your trademark, can file their complaint on the Facebook platform by submitting relevant information to Facebook, Inc. through their trademark protection contact form. 

Practice Pointer.  If you have a registered trademark that you want to protect, I would recommend that you check Facebook on a regular basis in the event  someone else does is using your trademark. 

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Several weeks ago, I gave a presentation on behalf of Sterling Educational Services to a number of attorneys and HR professionals entitled "Employee Privacy In The Workplace".  I addressed a number of areas, including employee privacy, evaluating performance and employee off-duty misconduct.  During the presentation, the majority of the questions dealt with social networking and privacy issues involving the internet and other electronic devices.  Several recent artilces that appeared in the Birmingham News demonstrate how the internet and other electronic advancements continue to outpace the corporate world.  On April 15, an article by Mary Orndorff dealt with several Alabama Congressmen who use Facebook, Twitter, Myspace and Youtube.  On the same day, an article appeared concerning police and fire agences using Twitter to communicate that was published by Carrie Antlfinger with the AP.  Today, an article by Ian Rapoport appeared in the sports section about the University of Alabama football coaches using Twitter for recruiting purposes.  Another articlesappeared this week dealing with the use of GPS devices in divorce cases.

With technology continuing to advance at a rapid pace, it is advisable for employers to have the appropriate policies and procedures to deal with the use of Twitter, Facebook, Linkedin, Myspace, Youtube and GPS devices both on company time and off of company time.  Many disgruntled employees post their views in the public domain, which may have an adverse impact on their company.  Others post positive views, which would be beneficial to the company.  Some policies are a single paragraph, while others are multiple pages long. What it comes down to is be respectful, and if you can't say it to your mother, don't say it on the internet!!

Practice Pointer.  It is advisable for employers to have a policy tailored to their needs concerning social networking.  The policy needs to be reviewed and updated on a regular basis, as technology continues to advance.

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The Internet continues to be both useful and damaging in the employment arena.  During speeches that I give, I often mention that anything on the Internet can cause problems at work.  The most recent example occurred just this week:  according to ESPN  a stadium worker of 6 years was fired because of a posting on his Facebook site.  Dan Leone, who worked 6 years as a gate worker at the stadium where the Philadelphia Eagles play, posted, on his Facebook page, "Dan is [expletive] devastated about Dawkins signing with Denver...Dam Eagles R Retarted!!" about an Eagles player being signed by Denver after becoming a free agent.  Notwithstanding the fact that Leone deleted the post, and apologized, the Eagles fired him several days after it was posted. 

Practice Pointer.  Facebook, as well as other web sites such as Myspace, often contain information that employers may take into account when hiring.  Students, prospective employees and current employees need to be aware that many companies search these sites on a regular basis, and negative content may  be a reason for applicants not getting the job they applied for or termination of current employment as Mr. Leone discoverd.

A new website, canmybossdothat   began operating last week.  This site, a project of Interfaith Worker Justice, states on the site that "Ethical employers should not have to face competitors who violate laws and basic decency.  This site seeks to have all work honor justice and respect the laborer and employer".  Cateories on this website include getting hired and fired, safety, pay, benefits and time off, unemployment insurance and how to protect your rights.  According to the Atlanta Journal Constitution, the site gives "state by state advice to the unemployed [and]...provides general guidance on workplace policies and employment law and encourages people to seek legal advice for more help."  Of course, on the top of the website is the following warning:  "Caution: Work computers can track internet usage, including  visiting  and emailing this site."

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