Hunton Employment & Labor Perspectives

On Monday, October 31, National Labor Relations Board General Counsel Jennifer Abruzzo issued GC Memo 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.”  Specifically, the Memo seeks to address the growing employer use of “a diverse set of technological tools and techniques to remotely manage workforces.”  Examples of these technologies include wearable devices, security cameras, GPS tracking devices, keyloggers, and audio recordings.

Editor’s Note: The California legislature failed to enact the proposed CCPA exemption amendments to Assembly Bill 1102.

On August 16, 2022, California Assembly Member Cooley introduced amendments to Assembly Bill 1102 that would extend the California Consumer Privacy Act’s (“CCPA’s”) temporary exemptions for HR and B2B data for an additional two years – until January 1, 2025. Under the CCPA, these exemptions are set to expire on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act (“CPRA”) become operative.

A magistrate judge in the U.S. District Court for the District of Oregon recently made findings and recommendations to dismiss a purported class action against Kroger subsidiary Fred Meyer.  The suit alleges that the retailer’s background check process for prospective employees violates the Fair Credit Reporting Act by both failing to properly disclose that a report will be run, and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant.

The EEOC recently released an informal discussion letter suggesting that employers may be obligated to do more than just maintain a separate file for employee medical records, especially when those records are in an electronic format. Both the Americans with Disabilities Act of 1990 (“ADA”), as amended, and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) require employers to maintain a confidential medical record, which is separate from the employee’s other personnel file(s), for information about the employee’s medical conditions, medical history or “genetic information.” The statutes do not, however, specify how such records are to be maintained or what level of security must be in place to protect the confidentiality of medical or genetic information.

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois. The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

On January 19, 2011, the United States Supreme Court issued a unanimous ruling in National Aeronautics and Space Administration v. Nelson, finding that questions contained in background checks NASA conducted on independent contractors are reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.  Stating that “[t]he challenged portions of the forms consist of reasonable inquiries in an employment background check,” the Court reversed a Ninth Circuit decision that the questions NASA asked of the ...

On August 25, 2010, the German government approved a draft law concerning special rules for employee data protection, originally proposed by the Federal Ministry of the Interior.  A background paper on the draft law was published on August 25, 2010.

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How would you handle the following situation?  You have recently learned that one of your employees “posted” on Facebook complaining about the company, specifically commenting on work conditions and wages.  Several other employees have made comments on this employee’s Facebook page and a discussion has ensued.  These comments and complaints are damaging to the company’s reputation and portray the company in a negative light. 

Your natural inclination may be to instruct the employee to take these comments down and prohibit him from continuing to use Facebook to discuss work issues.  Yet, unions may be looking for you to do exactly that so they can try to file an unfair labor practice charge with the National Labor Relations Board (“NLRB”).  Employers have the right to protect their reputations and to prevent the possible disclosure of confidential information.  But unions may try to construe the above situation and the employer’s reaction to it as interference with an employee’s right to engage in concerted activity, a violation of Section 8 of the National Labor Relations Act (“NLRA”).  Notably, such an argument by unions could apply to both unionized and non-unionized employers. 

As reported on Hunton and Williams LLP’s Privacy and Information Security Law Blog, on August 10, 2010, Illinois Governor Pat Quinn signed the Employee Credit Privacy Act, which prohibits most Illinois employers from inquiring about an applicant’s or employee’s credit history or using an individual’s credit history as a basis for an employment decision. The definition of “employer” under the Act exempts banks, insurance companies, law enforcement agencies, debt collectors and state and local government agencies that require the use of credit history.

On July 20, 2010, Hunton & Williams LLP announced the release of the first edition treatise Privacy and Data Security Law Deskbook (Aspen Publishers).  The deskbook provides a detailed overview of the workplace issues affected by information privacy and data security law and is a practical one-stop loose-leaf guide for privacy professionals, compliance officers and lawyers responsible for privacy or data security.

For an employer preparing to defend against a legal action by a disgruntled employee, few moments are as intoxicating as digging into the employee's electronic files on the company-owned computer.  The golden dirt often emerges in the form of a gossipy e-mail or an internet search for something racier than the sports scores.

A recent decision out of the Pennsylvania courts is a caution to employers who are required to produce employee personnel information in responding to court or agency proceedings.  Jane Doe v. Wyoming Valley Health Care System, Inc., (PA Super., December 18, 2009) raised the issue of how much privacy employees can expect in the information provided to their employers and kept in their company personnel files.

A recent decision of the U. S. District Court for the District of Columbia has cast doubt on the view that employees have no reasonable expectation of privacy in work email accounts.  Specifically, in Convertino v. United States Department of Justice,  Judge Royce C. Lamberth held that an employee’s communications with his attorney, sent to and received on the employee’s work email account, were protected from disclosure by the attorney-client privilege, even though the employer regularly accessed and saved such email communications.

The Supreme Court last week agreed to decide whether a California police department violated the privacy rights of an employee police officer by reading sexually-explicit text messages on the officer’s employer-issued pager.  The case, Quon v. Arch Wireless Operating Company, is on appeal from the Ninth Circuit, which ruled that in certain circumstances a public employee has a reasonable expectation of privacy in personal text messages -- even when those messages are sent on a device owned and provided by the employer. The decision is directly at odds with current employee privacy law, which generally holds that employees have no reasonable expectation of privacy in electronic communications on employer-provided electronic devices, and it adds to the list of headaches for employers adjusting to the exploding use of instant messaging in the workplace.