New Maryland Law Prohibits Employers from Asking for Social Media Passwords

Posted by Elizabeth Arce on May 15, 2012

Facebook_small.jpgMaryland recently became the first in the nation to ban employers from asking job applicants and employees for their Facebook and other social media passwords.  The law was signed into legislation by Maryland’s Governor approximately one year after the ACLU took on the case of Robert Collins who claimed he was forced to turn over his Facebook password to the Maryland Department of Corrections during a job interview.  Collins claims he was required to give his password to the interviewer who then proceeded to log onto his account and look through his personal messages, wall postings and photographs while Collins sat there. 

The new Maryland law, which goes into effect in October, specifically prohibits employers from asking or requiring a job applicant or employee to disclose any user name, password or other means for accessing a personal account on a social media site through a computer, telephone, PDA or other similar device.  The law also makes it illegal for employers to refuse to hire an applicant or take any adverse employment action against an employee for refusing to provide their personal login information.

Supporters of internet privacy are applauding Maryland’s adoption of the nation’s first so-called “social media password law.”  Supporters say such legislation is important because it not only protects individual privacy but it also prevents employers from accessing information that they cannot ask about during the hiring process such as ethnicity, sexual orientation and religion.

Since Maryland’s passage of a social media password law, several states including California and the federal government are proposing similar legislation.  For example, there are currently two bills pending before Congress.  The Password Protection Act of 2012 was recently introduced in the Senate and House.  The PPA proposes to prohibit employers from forcing prospective or current employees to provide access to their own private account on social media sites as a condition of employment.  The PPA would also prohibit employers from discriminating or retaliating against a prospective or current employee because that employee refuses to provide his or her password.  In addition, the Social Networking Online Protection Act, which provides similar protections as the PPA, has been introduced in the House.  However, SNOPA goes further in that it would also protect students from being forced to disclose their login information to schools from kindergarten through the university level. 

The California Legislature is expected to vote this year on AB 1844.  This bill would ban employers from requiring a job applicant or employee to provide usernames and passwords to their personal social media accounts.  The proposed law defines social media as “an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.”  In addition, because the proposed law bans employers from asking for login information, the law also prohibits employers from checking social media sites before hiring an employee.  Therefore, an employer could not later be held liable for negligent hiring if it did not search a prospective employee’s social media site.  The proposed law states that “an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer's failure to search or monitor social media” before hiring.

SB 1349, known as the Social Media Privacy Act, is also pending in the California Legislature.  This bill is similar to AB 1844 except that it goes further by banning public and private postsecondary educational institutions from requiring or requesting a current or prospective student from disclosing their usernames and passwords for a personal social media account or to provide the institution with access to that account. 

It remains to be seen whether the California legislature or Congress will adopt social media password laws.  Governor Brown has not taken a position on AB 1844 or SB 1349.  However, given the current trend favoring social media password protection laws, California employers may want to consider refraining from asking for social media login information from current and prospective employees unless there is a strong legitimate business reason for doing so.  Even then, employers should carefully weigh the potential risks associated with asking for such information.    

Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing social media policies.

Pressing The "Like" Button, Reluctant Counselors, And Key Lieutenants - First Amendment "Hot Topics"

Posted by David Urban on May 11, 2012

CourtHouse2_Small.jpgSeveral types of First Amendment cases have taken center stage this year, as free speech lawsuits by public employees continue to proliferate.  This post addresses three areas that qualify as “hot topics.”

1. Pressing “Like” on Facebook:  Courts continue to struggle with how to address public employee claims for free speech retaliation based on statements made on Facebook or in other social media.  In theory, such cases should not differ from traditional public employee free speech claims, and should have to satisfy the same elements.  In general, for a public employee to have a constitutional free speech claim, the speech has to address a matter of “public concern” and be made outside of the employee’s “official duties,” among other things.  However, completely novel features of speech on social media – for example, its spontaneous yet permanent quality, its tendency to reach unintended audiences, and its taking totally new forms -- require Courts to re-formulate traditional doctrines of constitutional law.

The latest development is a federal District Court decision from Virginia in which the Court found that a public employee’s mere pressing of “Like” for a Facebook post did not constitute expression protected by the First Amendment.  On April 24, 2012, in Bland v. Roberts, the Court considered the case of a Hampton, Virginia sheriff who allegedly fired a number of employees for conduct that included "liking" the Facebook page of a political opponent.  The Court ruled that the employees could not predicate a free speech retaliation claim on the simple act of “liking” the page.  The Court reasoned: “It is the Court's conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.  In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. . . .  [¶]  No such statements exist in this case.  Simply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection.  The Court will not attempt to infer the actual content of [a plaintiff’s] posts from one click of a button on [the political opponent’s] page.  For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. . . .  [t]he Court does not believe Plaintiffs . . . have alleged sufficient speech to garner First Amendment protection.”

Commentators have criticized the Bland v. Roberts ruling for failing to recognize that “liking” a post constitutes a mode of expression.  It is not clear, however, whether the District Court was making a broader holding about communication on Facebook, or just refusing to draw inferences in that particular case.  

2. Free Exercise of Religion and Delivery of Counseling Services:  Two U.S. Court of Appeals decisions have recently come down considering First Amendment retaliation claims based on the right to free exercise of religion guaranteed by the First Amendment.  Both cases arose in the context of counselors who objected on the basis of religious belief to helping patients with same-sex relationships. 

In a case out of Michigan, Ward v. Polite, decided January 27, 2012, a university counseling program student saw in a patient file that the patient had sought counseling on a same-sex relationship.  She then asked that the patient be transferred to another counselor.  The student was later forced to leave the program on the basis that she asserted her beliefs in a way that violated program standards.  The student sued, alleging infringement of her First Amendment free speech and also free exercise rights.  The trial court granted summary judgment against her, but the Court of Appeals reversed, holding that the case should go to trial on the issue of whether the plaintiff had been forced to leave the program because of her religious beliefs themselves rather than because of the impact her beliefs had on her counseling, if any.  Important to the Court were the facts that the student was willing to see patients who were gay and lesbian, but just not affirm their relationship choices, and that the program’s policy allowed referral/transfers in many other different circumstances unrelated to religion. 

In a case out of Georgia, Walden v. Centers for Disease Control, decided February 7, 2012, the Court reached a different result.  There, the plaintiff, a professional counselor, found while speaking with a patient, that the patient had sought help about a same-sex relationship.  The counselor told the patient that the counselor’s belief system did not allow her to see the patient further.  The patient complained and the department head asked the plaintiff to simply say in the future that she lacked relationship training.  The plaintiff insisted that she had a right to tell her patients truthfully why she could not counsel them.  The Center decided to remove the plaintiff from her contract, and she sued for retaliation based on her assertion of First Amendment free exercise rights.  The Court found that sufficient evidence supported the Center’s decision, and in particular that the Center had not taken its action because of the plaintiff’s beliefs, but because of the manner in which the plaintiff had insisted on applying those beliefs, including needing to inform the patient of them. 

It remains to be seen whether these decisions, Ward and Walden, will be isolated to their particular factual circumstances, or whether they will be the first in a wave of similar free exercise claims in new contexts.

3. The Policymaker Exception:  Third, courts are developing what may prove to be a substantial employer defense to many First Amendment claims – the exception for claims brought by “policymaking” employees.  One court described the exception as follows: it “recognizes that an elected official must be able to appoint some high level, personally and politically loyal officials who will help him implement the policies for which the public voted.  An elected official may dismiss these same policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else.”  See Fazio v. City of San Francisco.  The court described that if the employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”  The factors a Court must consider in identifying a “policymaking” position are: “vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.” 

In the last several months, two cases have further developed the exception.  The first is the Ninth Circuit’s decision in Hunt v. Orange County.  There, the Court held that the “policymaker” exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question.  “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”  In Hunt the court found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff.  It reasoned: “Here, the record fails to establish that Hunt's party affiliation or political outlook were relevant to the effective discharge of his professional duties.”  Instead, the factual findings were that “Hunt's political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”  The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.

The second significant case is from Ohio, and shows a federal trial court’s willingness to interpret the “policy maker” exception broadly in the particular context of human resources employees.  In Dixon v. University of Toledo, an Associate Vice President of Human Resources at the university wrote a letter to a local newspaper challenging a story’s comparison of gay rights to civil rights, and made certain generalizations about homosexuality.  The District Court upheld the termination and found no First Amendment free speech claim.  As a separate and distinct basis for its holding, the Court invoked a version of the “policy maker” exception to First Amendment protection applicable in the Sixth Circuit, which covers Ohio.  (The Sixth Circuit exception applies a presumption in favor of the legitimacy of agency action as to policymaking and confidential employees.)  The Court determined that the employee’s job duties were sufficiently key to the work of the Department that they met the requirements of the test, and that the discharge did not violate the First Amendment. 

How extensively will the “policymaker” exception apply in future First Amendment litigation?  The Dixon case shows that a version of the “policymaker” exception can be invoked even as to employees not at the top level of their department, if the right circumstances are present.  This shows the exception could have versatile application.

Paid Administrative Leave And Denied Protection Of The "Blue Wall" Does Not Constitute Disparate Treatment Or Denial Of Equal Protection Under The Law

Posted by Frances Rogers on April 24, 2012

Police Officer_Small.JPGThe “blue wall” is a phrase sometimes used to refer to an unofficial practice of police officers protecting or shielding the wrongdoing of a fellow officer.  In an interesting twist, one police officer claimed that when his department placed him on paid administrative leave and then failed to afford him the “professional courtesy” of intervening in a criminal investigation by another agency, it thereby discriminated against him and failed to afford him equal protection under the law.  Not buying it? Fortunately, neither did  the Second Circuit of the U.S. Court of Appeals. (Brown v. City of Syracuse.)

Curtis Brown was a police officer for the Syracuse, New York Police Department (“SPD”).  In 1999, based upon an allegation that Brown was involved in an inappropriate relationship with a 15-year-old girl, a Captain investigated and determined the complaint was unfounded. The Captain, however, ordered Brown to have no further contact with the girl.

Several months later, the girl contacted Brown, claiming she was distraught over a fight with her mother and had left home. The girl asked Brown to pick her up because she did not feel safe alone. Brown picked up the girl and rented a hotel room for her to stay.  The girl’s mother discovered the girl’s location and that the room had been rented in Brown’s name.  State police were called who then contacted SPD.  When asked about the girl’s whereabouts by an SPD officer, Brown stated he did not know where the girl was and denied renting her the room.   The next day, Brown similarly denied knowing of the girl’s whereabouts when asked by a SPD Captain, even though Brown had just given the girl a ride to school.  The Chief ordered Brown suspended with pay pending an investigation.

The State Police began an investigation and asked SPD if they wanted to assist. SPD declined because the girl lived outside city limits.  The State Police charged Brown with endangering the welfare of a child. Brown pled guilty to one misdemeanor count.  This resulted in automatic loss of his status as a peace officer under New York law and thus, his employment with SPD.

Brown filed suit against SPD on several grounds including race discrimination in violation of Title VII of the Civil Rights Act and a claim under 42 U.S.C. §1983 alleging a violation of his Constitutional right to Equal Protection under the Fourteenth Amendment.  After a series of orders and appeals, the district court ultimately granted summary judgment in favor of SPD and other defendants.  Brown appealed and the Court of Appeals affirmed. 

Brown claimed that the SPD had discriminated against him based on his race (African-American) by suspending him with pay pending an investigation when SPD did not take the same action against Caucasian officers who had engaged in similar misconduct.  In relying on earlier precedent the Court noted that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action.”  The question was whether the employer simply applied reasonable disciplinary procedures or if it exceeded those procedures and thereby changed the terms and conditions of employment.

“Paid suspension during an investigation could thus potentially be adverse if the employer takes actions beyond an employee’s normal exposure to disciplinary policies.”

Brown argued that the loss of overtime pay was “more” than a mere paid administrative leave that exceeded the City’s policies.  The Court disagreed, holding that such a finding would be “absurd.”  Brown further argued that white officers accused of worse conduct were allowed to stay on the job.  However, Brown offered no evidence of a similarly-situated white officer who was not suspended pending an investigation.

Brown next argued that his right to Equal Protection under the law was violated when the SPD refused to extend him the same “benefits and privileges” extended to white officers.  Brown alleged he should not have been investigated in the first place and, in any event, the SPD should have become involved in his investigation and worked with the State Police and District Attorney to achieve a more favorable outcome for him.

The Court distinguished a prior published decision in which a department that investigated its own officer for criminal misconduct was found to have violated the officer’s Constitutional rights.  There, a deputy sheriff had voiced unpopular opinions about the sheriff’s office after which, three officers lay-in-wait surveilling the deputy while he had dinner with his wife.  After observing the deputy having a couple glasses of wine, the officers pulled the deputy over on his way home and charged him with DUI.  There, the court held that an Equal Protection claim was cognizable because the defendants sought out, surveilled, and investigated the deputy in a calculated attempt to punish him for his protected activity.

The distinction here, the Court held, was that Brown was not sought out and caught by discriminatory means.  Rather, Brown was merely denied the “blue wall of silence” or “professional courtesy” behind which he expected his fellow officers to mitigate or hide his misconduct.

 “…to recognize a constitutional violation here based on a failure to extend a ‘professional courtesy’ would create bizarre incentives encouraging officers to meddle in criminal investigations of a fellow officer’s misconduct in order to avoid being subject to liabilty. This ‘would stand the Equal Protection Clause on its head.’”

While an employer shoud apply all of its policies even-handedly, no employer is required to turn a preferential blind eye to the misconduct of its own employee.

CalPERS Reduces Employer Impact by Phasing-In Change in Contribution Rates

Posted by Frances Rogers on April 23, 2012

On March 14, 2012, our Blog Post examined CalPERS’ decision to lower the discount rate from 7.75 percent to 7.5 percent in its assumption when determining employer contribution rates.  At a meeting of the CalPERS Board of Administration, staff were asked to study the possibility of phasing-in the increased employer contribution rates over a two year period.

Last week, the CalPERS Board approved a plan to phase - in the impact on employer contributions. Under the plan , employers will see about half of the projected rate increase in the first year and the rest of the increase in the second year. This means employers will have an increase in employer contribution rates in the first year, but not as significant as would have otherwise resulted without the phase-in.  A recent CalPERS press release explained:

“A sample public agency miscellaneous plan, without phase in, was expected to see an increase in their employer contribution rate of 1.24 percent of payroll over the next 20 years as a result of the lower discount rate. Under the phase in approach adopted by the Board, the employer contribution rate for that sample public agency miscellaneous plan will go up by 0.65 percent of payroll in the first year of the amortization period, followed by an additional increase of 0.64 percent of payroll for a total increase of 1.29 percent of payroll over the two year period.”

Employers with non-pooled plans may choose to opt out of the phase-in plan and apply a uniform increase to all 20 years. However, employers with plans in a risk pool, must phase in the rate increase in order to maintain equity amongst all participating employers in the pool.

If you have any questions regarding the phase-in process, or what it will mean for your organization, please contact any of our attorneys.

U.S. Supreme Court unanimous decision: private individuals retained to carry out government work are entitled to seek qualified immunity in section 1983 suit

Posted by Guest Author on April 17, 2012

This guest post was authored by Jennifer M. Rosner

Court House_Small_B&W.jpgNicholas Delia, a firefighter employed by the City of Rialto missed work after becoming ill on the job.  Suspicious of Delia’s extended absence, the City hired a private investigation firm to conduct surveillance on him.  When Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation.  It hired Filarsky, a private attorney, to interview Delia.  At the interview attended by Delia’s attorney and two fire department officials, Delia acknowledged buying the supplies, but denied having done any work on his home.  To verify this claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials.  When Delia refused, Filarsky ordered him to bring the materials from his home for the official to see.  This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky.  Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials.  Delia brought an action in federal court against the City, the Fire Department, Filarsky, and others, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights.  Filarsky was sued under 42 U.S.C. §1983, the statute allowing civil rights lawsuits.  The District Court granted summary judgment to the individual defendants on the basis of qualified immunity.  The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.

The Supreme Court reversed the Ninth Circuit’s decision with respect to Filarsky.  In doing so, the Court looked to the general principles of tort immunities and defenses applicable at common law, and the reasons the Court had afforded protection from suit in similar cases in the past.  The Court noted that the common law, as it existed in 1871, when Congress enacted the statute allowing Civil rights lawsuits, did not draw a distinction between public agency employees and private individuals engaged in public service in affording protection to those carrying out government responsibilities.  Accordingly, the Supreme Court held that common law principles of immunity were incorporated into the law and should not be abrogated in the absence of clear legislative intent.  As a result, it concluded: “Immunity under § 1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis.”

The Court identified four primary reasons for its decision to recognize immunity under § 1983 as it is recognized under common law:

First, immunity “protect[s] government’s ability to perform its traditional functions.”  It does so by helping to avoid “unwarranted timidity” in performance of public duties.

Second, affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to “ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.”  The government’s need to attract talented individuals is not limited to full-time public employees.  Indeed, it is often when there is a particular need for specialized knowledge or expertise that thegovernment must look outside its permanent work force to secure the services of private individuals.  Because those individuals are free to choose other work that would not expose them to liability for gov­ernment actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts.

Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees.

Finally, distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to “reasonably anticipate when their conduct may give rise to liability for damages.”  The Court reasoned that, “[a]n uncertain immunity is little better than no immunity at all.”

The Court found no conflict in its ruling with its previous decisions in Wyatt v. Cole, or Richardson v. McKnight, because: (1) Wyatt involved a defendant with no connection to government and who was pursuing purely private interests; and (2) Richardson involved prison guards employed by a private company to work in a privately run prison facility.

Duty To Provide Notice Of Discipline To Peace Officer Within 30 Days Runs From The Date A Department Makes The Final Decision To Discipline

Posted by Morin Jacob on April 17, 2012

Government Code section 3304(f), part of the Public Safety Officers Procedural Bill of Rights Act (POBRA) provides that, when a public agency decides to discipline a peace officer, “the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, except if the public safety officer is unavailable for discipline.” In Neves v. California Department of Corrections and Rehabilitation, the Court of Appeal held that the Department of Corrections satisfied section 3304(f) when its January 27, 2010  notice of disciplinary action was received by the officer in early February 2010.

Lawrence Neves was a Correctional Officer who, on December 30, 2009, was personally served with a so-called Sulier notice.  This notice informed Neves that, pursuant to Sulier v. State Personnel Board, the Department had completed its investigation into allegations of misconduct and had decided to take disciplinary action against him.  It was also advised that "the recommended" discipline was termination.  The notice further informed Neves that formal papers would be served on him within the next 30 days.  According to the Department, the purpose behind the Sulier notice was to satisfy the POBRA requirement in section 3304(d) that a department complete its investigation into alleged misconduct and serve a peace officer with notice of intended disciplinary action within one year of discovery of the alleged misconduct.

A January 27, 2010 notice of discipline  informed Neves that he would be terminated effective February 12, 2010.  The notice further advised Neves of the legal and factual reasons for the proposed discipline, his right to respond to the proposed action, and his right to appeal to the State Personnel Board.  Neves received the  notice of discipline on either February 1, or 2, 2010.

Neves filed a petition for writ of mandate and argued that, because he did not receive the notice of intended discipline within 30 days after the December 30, 2009 Sulier notice, the Department could not impose discipline on him.  The trial court agreed with Neves, and the Department appealed.

The Court of Appeal reversed and held that Neves had failed to demonstrate any violation of the POBRA.  The Court held that the 30-day requirement in section 3304(f) does not begin to run until the department completes the pre-disciplinary process and decides the specific level of discipline that will be imposed.  The Court noted that the Sulier notice served on Neves made it clear a decision to dismiss had not yet been made, but was merely being recommended.  The 30-day notification requirement of section 3304(f) was triggered on the date of the Department's final decision to impose discipline, which was the same date as its formal notice of disciplinary action, signed and dated January 27, 2010. 

Neves serves as a cautionary tale for public safety employers.  An inadvertent POBRA violation may result in discipline being overturned in the event of an appeal.  Accordingly, agencies should be careful not to provide written communications to a peace officer at the pre-disciplinary stage that will unintentionally trigger the 30-day requirement to notify a peace officer of its decision to impose discipline.

Computer Hacking Law Does Not Prohibit Employees from Misusing Data They Are Authorized to Access

Posted by Guest Author on April 16, 2012

This guest post was authored by Alison L. Carrinski

Laptop_Small copy.JPGLast year we reported on the case U.S. v. Nosal, in which the U.S. Ninth Circuit Court of Appeals held that an employee may be criminally liable when he or she misuses employer data in violation of the employer’s computer use policy.  Reversing course, the Ninth Circuit recently reheard this case en banc and narrowed the scope of the Computer Fraud and Abuse Act (CFAA) to apply when an employee hacks into a computer, but not when an employee misuses information that employee already has authorization to access.

David Nosal, a former employee of an executive search firm, convinced some of his former colleagues to use their log-in credentials to download confidential company information, including source lists and contact information from a confidential database.  The employees handed this confidential information over to Nosal.  While the employees had authorization to access the information, they violated the company’s policy prohibiting disclosure of confidential information.

The U.S. government charged Nosal with, among other things, violating the CFAA for aiding and abetting his former colleagues to “exceed [their] authorized access” with intent to defraud the company. 

The issue in this case was the meaning of “exceeds authorized access.”  Nosal argued that this term refers to “hacking”—where an employee who only has access to some data on a computer “hacks” into or accesses, other data.  The government argued, however, that this term also includes situations where an employee has unrestricted physical access to a computer but uses the information in an unauthorized manner.

The Ninth Circuit Court of Appeal, sitting as a panel of eleven judges, agreed with Nosal’s narrow interpretation of what “exceeds authorized access” means under the CFAA.  The Court characterized the intent of the law to apply to traditional computer “hackers”—those that break into data without authorization—rather than those who misappropriate data they already have access to.  The Court noted that in 1984 Congress enacted the CFAA to combat the growing problem of computer hacking, rather than the more recent issue of misappropriation of data.

In reaching its conclusion, the Court also examined how the term “exceeds authorized access” appears throughout the CFAA.  One section of the law makes it a crime to “exceed authorized access” of a computer connected to the Internet, whether or not there is criminal intent.  The Court reasoned that if “exceeds authorized access” included misusing data that users already had authorization to access, millions of employees would find themselves in violation of this provision of the CFAA.  The Court cited numerous examples of obscure private policies of large, frequently visited websites, such as Amazon, Facebook, or eBay, which users unknowingly violate without repercussion all the time.  If an expansive interpretation of the CFAA applied, these website users may become criminally liable—the Court determined Congress did not intend such a scenario.

The CFAA creates a private right of action for employers.  However, this ruling clarifies that employers may not invoke the CFAA when an employee misuses data that he or she has authorization to access.  Nonetheless, an employer may discipline an employee for violating the employer’s computer use policy.  Therefore, it is important for employers to create, maintain and train employees on a comprehensive computer use policy that places clear limits on an employee’s use of agency data.

The Ninth Circuit Court’s narrow reading of the CFAA provision diverges from that of other circuit courts, therefore, there is a chance the U.S. Supreme Court may review this issue.

Supreme Court Issues Long-Awaited Ruling In Brinker Meal And Rest Period Case

Posted by Elizabeth Arce on April 13, 2012


Gavel_Small.JPGThe California Supreme Court issued its decision in Brinker Restaurant Corporation v. Superior Court regarding an employer’s obligations under state law to provide meal and rest breaks to their employees.  The Court ruled that employers have a duty to provide meal and rest periods to employees but employers need not ensure that no work is performed during the breaks.  While the Court’s ruling is important for private sector employers, it will have very limited impact in the public sector, as nearly all public employees are not covered by state meal and rest break requirements. 

Brinker Restaurant Corporation operates 137 restaurants in California including Chili’s Grill and Bar and Maggiano’s Little Italy.  This litigation began when five hourly nonexempt employees sued Brinker purporting to represent a class of employees who had allegedly been denied their meal and break periods and who had been forced to work “off the clock” without compensation.  The employees alleged a number of claims against Brinker including that the company failed to provide nonexempt employees with mandated 10-minute rest periods and 30-minute meal periods as required by law.  On appeal, the Supreme Court examined an employer’s obligation to provide meal and rest periods to employees and the timing of these breaks under the California Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders. 

Meal Periods

The Supreme Court ruled that employers only have a duty to provide meal periods, but need not ensure that they are taken.  The Court specifically noted that “the employer is not obligated to police meal breaks and ensure that no work thereafter is performed.”  Further, the Court clarified that the duty to provide a meal break is satisfied when an employer relieves its employees of all duties, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.    

It is important to note that the state law standard articulated in Brinker for when a meal break will be considered to be on duty is much stricter than the “predominant benefit” standard under the Fair Labor Standards Act.  In Brinker, the Court makes clear that employees must be relieved of all duties during a meal break.  Under the FLSA, however, as long as the meal period predominantly benefits the employee, an employer is not required to compensate employees for performing some work duties during their breaks.     

As for the timing of meal breaks, the Court held that the first 30-minute meal period must occur no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.  In other words, if the shift is less than 10 hours, then employees must take their first meal period no later than the start of their sixth hour of work.  If the shift is more than 10 hours but no more than 12 hours, then second meal period must be taken no later than the start of the 11th hour of work unless it is waived by mutual agreement of the employer and employees. 

Rest Periods

The Court also ruled that employers have a duty to make a good faith effort to authorize and permit rest periods in the middle of each work day.  The Court also held that employers may deviate from this “preferred course where practical considerations render it feasible” but declined to express an opinion on what those considerations might be.  In reaching this decision, the Court rejected plaintiffs’ argument that employers are required to allow their employees to take a rest break before a meal period. 

In addition, the Court’s decision set forth guidelines regarding the number of rest periods that an employer is required to provide to employees.  The Court held that employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length.  If the shift is more than six hours up to 10 hours, then employees are entitled to 20 minutes of rest (or two 10 minute breaks).  Finally, if the shift is more than 10 hours up to 14 hours, then employees are entitled to 30 minutes of rest (or three 10 minute breaks). 

Certification of Classes of Employees

The Court also considered the issue of whether the trial court properly certified various classes for class action status.  The Court ruled that certification of the issue of whether employees were provided with rest breaks was proper because all employees were subject to the employer’s rest break policy.  The Court remanded the matter to the trial court to reconsider whether certification of the meal break class was proper, and the scope of the meal break class, in light of the Court’s rulings.

Finally, the Court ruled that a class should not have been certified regarding the employee’s claims that they worked “off the clock” during their meal breaks without compensation.  The Court found that the employer had a policy prohibiting off the clock work without compensation and the employees had not offered evidence of a systematic company policy to pressure or require employees to work off the clock.  Additionally, the fact that employees had clocked out to take their meal breaks created a presumption that they were not working, which the employees would be required to rebut by showing that the employer knew or should have known they were working during their meal breaks.  Since proof that the employer knew the employees were not following company policy would require individualized evidence as to each employee’s particular situation, a class action should not have been certified on the off the clock claims.

What Brinker Means for Public Agency Employers?

Public agencies have historically been exempt from the meal and rest break requirements set forth in the California Labor Code and IWC Wage Orders.  As a result, the Brinker decision may have little impact on meal and rest periods for a vast majority of public agency employees.

However, if your agency employs commercial vehicle drivers which can include, but are not limited to, bus drivers, paratransit bus drivers and sanitation truck drivers, then the Brinker decision will apply to them.  The reason for this is because the IWC amended Wage Order No. 9 in 2004 to apply state meal and rest break requirements to commercial vehicle drivers employed by governmental entities.  The issue of whether the provision regarding commercial drivers applies to counties and charter cities is currently being litigated in California courts, based on the holdings in Curcini v. City of Alameda (2008) 164 Cal.App.4th 629 and Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276.

Finally, the decision reinforces the importance of having sound meal and rest break policies and strong overtime policies that prohibit employees from working “off the clock” and from failing to report all time worked to the employer.  Since Brinker had a strong policy preventing off the clock overtime, it was able to avoid a class action on those claims.  For public agencies, those policies may also help prevent FLSA collective actions.

Use of Arrest and Conviction Records In Hiring

Posted by Elizabeth Arce on April 10, 2012

Handcuffs_Small.jpgWhen was the last time your agency reviewed its policy regarding the use of arrest and conviction records in hiring?  If the answer to this question does not readily come to mind, it may be a good time to audit your hiring policy and job application. 

Earlier this year Pepsi agreed to pay a $3.13 million settlement to resolve a race discrimination charge filed by the U.S. Equal Employment Opportunity Commission (“EEOC”).  According to the EEOC, Pepsi’s criminal background check policy barred applicants from being hired into permanent positions if they had been arrested.  These applicants were screened out even if they had never been prosecuted or convicted of any offense.  The EEOC determined that Pepsi’s policy disproportionately excluded African-American applicants from permanent employment with the company and was, therefore, in violation of Title VII of the Civil Rights Act of 1964.  The EEOC estimated that approximately 300 African-American applicants were adversely affected by Pepsi’s policy.  Consequently, a majority of the settlement was split among the applicants.  The EEOC also worked with Pepsi to adopt a new criminal background check policy.

Under California Law, employers may not ask a job applicant to disclose information concerning an arrest or detention that did not result in a conviction.  California employers are also prohibited from making hiring decisions based on an arrest that did not result in a conviction.  It is permissible for employers to ask employees if they have ever been convicted and, if so, they may ask about the offense.  However, the use of conviction records as an absolute bar to employment is improper because it disproportionately excludes certain racial groups.  According to the EEOC, the reasoning behind this is that “Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups.”  Therefore, such records should not be used to immediately screen an applicant out unless there is a business need for it.  

In order to determine if there is a legitimate business reason for screening out an applicant based solely on a criminal conviction, the following three factors should be considered: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since the conviction.  These factors focus on the applicant’s conduct, as opposed to the conviction itself, in determining whether an applicant is fit to perform the job. 

Employers also may not ask a job applicant to disclose marijuana convictions that are over two years told.  Clear language must be included in the job application that notifies the applicant that the employer is not seeking the disclosure of such information.  The language must also be placed in a location that will attract the reader’s attention.

Finally, it is important to note that these rules do not apply to peace officer applicants. 

Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing hiring policies or job applications.  In addition, LCW’s workbook Personnel Issues: Hiring, Reference Checks and Personnel Records and Files also contains hiring guidelines and sample job applications.

Trouble-Shooting The Hiring Process For A Public Agency

Posted by David Urban on March 30, 2012

Stairs.JPGThere are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially.  The overall mood may have also turned a corner, with less news of economically motivated protests, or of waves of foreclosures, and more talk of IPO’s and new business ventures.

For some California public sector employers, a brighter outlook is corresponding with more hiring.  Although this is good news, the hiring process does carry legal risks, just as did downsizing and other like matters in bad economic times.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.  

1.         Utilize Accurate Job Descriptions:  At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions. 

Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.  

2.         Establish a Uniform Screening Process for Applications:  The next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations. 

3.         Focus Interviews on Job-Related Questions, and Avoid Improper Questions:  Like other aspects of the hiring process, interviews must be non-discriminatory.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  (The list of questions is available at: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.)  The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.) 

It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.  

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