Texas Employment Issues/FINRA and Social Media
Here is a link to a presentation on the Top Ten Issues for Texas Employer and FINRA Social Media compliance. I hope you find it helpful.
Employee Text Messages - No Guidance from the Supremes?
Back in April I addressed the Supreme Court's review of City of Ontario, California v. Quon et al and the implications it might have on employer access and review of employee electronic communications. A few weeks ago the Court's opinion was delivered and did little to shed light on the Court's view of privacy rights in text messages for private employees.
As you may recall, the opinion dealt with a police department that decided to review the personal text messages of one of its officers that were made with a police owned phone. Justice Stevens upheld the search of the phone noting that Quon:
should have understood that all of his work-related actions–including all of his communications on his official pager — were likely to be subject to public and legal scrutiny
He also wrote:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. Moreover, agencies and officers should explore whether state privacy laws might create a different standard. Some states have statutes that require an employer to notify an employee when electronic communications are being monitored.
So the Court was unwilling to go beyond the public employee domain, not surprising. So questions remain: Is the employee that uses a company owned phone subject to having his text messages reviewed? What if there are personal emails on the company owned phone through a yahoo or gmail account? What if the phone is owned by the employee but the service is paid for by the company? These questions remain unanswered but employers should have policies in place that address these situations.
An FLSA Primer
Mark Shank and Bridget Blinn are lawyers at my firm who focus on advising employers on the Fair Labor Standards Act. Their recent article, What is Work? FLSA Pitfalls at the Beginning and End of the Work Day tackles this statute:
The basic requirements of the federal Fair Labor Standards Act (“FLSA”) are easy to understand. Employees must be paid a minimum wage of $7.25 per hour (per the latest increase that went into effect in July 2009). Employers must also generally pay nonexempt employees overtime at a rate of at least one and one half times the regular rate of pay for all hours work in excess of 40 hours in a work week.
Unfortunately violations of the FLSA can be costly for the unsuspecting employer:
These two seemingly simple requirements are surprisingly difficulty to implement. Getting it wrong can be costly: Employers found liable for violations of the FLSA may be assessed damages for the unpaid overtime or minimum wages, liquidated damages equal to the amount of unpaid overtime or minimum wages, and reasonable attorneys fees and costs. Willful violations may carry criminal penalties upon conviction with fines of not more than $10,000 or imprisonment for not more than six months, or both, and there are also civil money penalties (payable to the Secretary of Labor) for repeated and willful violations of minimum wage and overtime requirements.
Their article provides an up to date perspective on the FLSA and is worth a look.
Is my employee's GMAIL fair game?
It’s amazing what people will put in their emails, even after they have been warned by their lawyers. There have been a number of cases I have been involved in where an employer has been able to access emails from an employee's web-based hotmail account that show he or she is actively violating a non-compete or even sending work to a competitor. The question is, can an employer access an employee's web-based email?
A recent law.com article investigated a number of decisions arising from use of the Stored Communications Act. The SCA creates a criminal offense and civil liability for whomever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and by doing so, “obtains, alters, or prevents authorized access to a wire or an electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 27.01. The decisions vary.
The article suggests a robust electronic communications policy will go a long way to protect the employer, but it is unlikely that any employer has a policy that would allow them to obtain and use an employee’s password in order to access their web-based accounts. Obviously, once the employer uses the emails in the litigation, it will become obvious that they have utilized the password to obtain that information. The employer could consider simply requesting the communications through normal avenues of discovery. If you are going to use such evidence be prepared for the ramifications.
(H/T to Jon Hyman of the Ohio Employer's Law Blog)
The Latest In Employment Torts
Tomorrow I will be speaking at the University of Houston Law Center Advanced Employment Law Seminar in Dallas regarding employment torts. The paper prepared for the presentation covers the latest and greatest in torts ranging from false imprisonment to tortious interference.
The Office: Michael Scott Shows How Not to Compete
Two weeks ago on the Office, Michael Scott gave Dunder Mifflin notice of his resignation. Upon return to Scranton, Michael hatched a plan to start Michael Scott Paper Company and started with some due diligence (I apologize for the advertisement but NBC has to pay the bills):
Michael then asked most of the Scranton staff to come to his new company and started working on putting together paper order forms. Eventually the higher-ups got wind of Michael's new venture:
Unfortunately, for Michael there is no two week "immunity" period. Employees in Texas can set the stages for starting a competing venture (assuming there is no non-compete or other restrictive agreement) on their own time, but not while at work. The good news for Michael is that Pam the receptionist left Dunder Mifflin to join Michael.
Recording Phone Calls & Polygraph Testing
Recording phone conversations.
One issue that I frequently receive questions about is whether it's permissible to record phone conversations that you are a party to? The answer varies from state to state. In the absence of more restrictive state law, federal law permits an individual who is a party to the telephone conversation to record it.
Some states require both parties to consent to the recording (two-party consent). Texas does not (one-party consent). The rub arises when there is an interstate call between a one-party state and two-party state. The California Supreme Court (.pdf) has held that in such a situation, two-party consent is necessary.
Recording a phone call can be a useful tool for avoiding misunderstandings and I have even used them in breach of contract cases where an oral agreement is disputed. If you are going to record, the best practice is to get the consent of the other party. If you're not going to do that make sure you know the law of your state and the state you are calling.
Polygraph testing your employees.
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Jon Hyman provided a primer on employee polygraph testing in the Ohio Employer's Law Blog this past week. Frankly, I had never heard of the Employee Polygraph Protection Act of 1988 but it prohibits with limited exceptions:
- Requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test;
- Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee; and
- Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the EPPA.
