Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” released in April 2012.  And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes.  For example, late last year the City of Newark, New Jersey, enacted a so-called “Ban the Box” ordinance that, with very limited exceptions, prohibits employers from inquiring about an applicant’s criminal history on an employment application, and Minnesota followed suit just last month by enacting the state’s own version of a “Ban the Box” law.  The trend continues across the country, and thus now, perhaps more than ever before, employers must stay abreast of these ex-offender protection laws and should closely monitor pending legislation at both the federal, state and local level.

On the reverse side of this issue, recognizing that employers have potential tort exposure for hiring ex-offenders, some state legislatures have taken steps to protect employers from tort claims like negligent hiring and/or retention.  One example is a new law pending in Texas. This legislation is intended to further the same public policy interests, but takes a different and more sensible approach: curbing lawsuits against employers rather than denying employers access to potentially salient information about a candidate’s criminal past.

To learn more, please see Littler's ASAP, The Flurry of New Employment Laws Regulating the Use of Criminal Records Continues with Expanded Restrictions in Indiana, North Carolina, Texas, and Buffalo, New York, by Jennifer Mora, Rod Fliegel, and Sherry Travers.

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Shortly after the Littler Report, Workplace Policy Institute: Social Media Password Protection and Privacy -- The Patchwork of State Laws and How It Affects Employers, by Phillip Gordon, Amber Spataro, and William Simmons was published last month, the legislatures of Arkansas, Colorado, Oregon, and Washington passed social media password protection bills. In addition, New Jersey's Governor conditionally vetoed the bill passed by that state's legislature. The revised Littler Report addresses these new developments. We also have revised our proposed model legislation in light of these developments.

To read the updated Littler Report, click here.

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On May 22, 2013, Oregon Governor John Kitzhaber signed into law House Bill 2654, making Oregon the tenth state to enact a law prohibiting employers from accessing employees' private social media sites. The new law, which becomes effective January 1, 2014, makes it an unlawful employment practice for employers to compel employees or applicants for employment to provide access to their personal protected social media accounts.

Continue reading about this development in Littler's ASAP: Oregon Passes Social Media in the Workplace Law by Howard Rubin and Don Stait.  

Photo credit: Warchi

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On May 25, 2013, Nevada Governor Brian Sandoval signed a new law making Nevada the third state in the last 12 months to enact legislation restricting use by employers of credit reports and other credit history information for hiring and other employment-related purposes.  Nevada's new law, which goes into effect October 1, 2013, follows closely on the heels of similar legislation enacted by Colorado in April 2013, and adds Nevada to the handful of other states that have similar laws: California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington.

Nevada Senate Bill 127 amends Chapter 613 ("Employment Practices") of the Nevada Revised Statutes to restrict the ability of employers to use an employee or prospective employee's "consumer credit report" or any "consumer credit information" for employment purposes.

To learn more about the law, please see Littler's ASAP, Nevada is the Latest State to Restrict the Use of Credit Reports for Employment Purposes, by Rod Fliegel, Bruce Young, and Jennifer Mora.

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By Thomas Flaherty and Rebecca Roche

Virginia has enacted a new law that is intended to enhance employee protections, particularly during union organizing drives in the Commonwealth.  Effective July 1, 2013, the law limits those situations in which an employer may be required to disclose certain information to third parties about current and former employees.  Delegate Barbara Comstock, who spearheaded this law, calls it “...a victory for the rights of workers and for protecting employees in the workplace.”

The bill, entitled “Keeping Employees’ Emails and Phones (KEEP) Secure Act,” carries the title and tracks the language of a bill introduced in the U.S. Congress in February 2012 by Rep. Sandy Adams (R-FL), which would have prevented the National Labor Relations Board (the NLRB or Board) from implementing a rule requiring employers to provide to a union or the Board employee telephone numbers or email addresses. The federal bill did not pass. The Virginia law provides that employers cannot be “required to release, communicate, or distribute” to third parties personal identifying information (defined as home and mobile telephone numbers, email addresses, shift times and work schedules) about current or former employees, unless required by federal or state law, ordered by a court of competent jurisdiction, required pursuant to a warrant, or required by a subpoena or discovery in a civil case.  These exceptions may largely swallow the rule, particularly if the NLRB changes the election procedures under the National Labor Relations Act (the NLRA) to include, among other things, a requirement that employers disclose employees’ phone numbers and email addresses to labor organizations once an election has been ordered.

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Effective January 1, 2014, recent amendments to Minnesota law will restrict the timing of pre-employment inquiries by most private employers into a candidate’s criminal past.  Employers who are not exempted from the law may not (1) inquire into or consider or require disclosure of criminal record information until the applicant has been selected for an interview or, if there is not an interview, until a conditional job offer of employment has been extended to the applicant, and (2) use any form of employment application that seeks such criminal record information.

The new law does not outright preclude inquiries into or consideration of an applicant’s criminal past.  Representative Tim Mahoney, who sponsored the legislation, has stated that the law “does not prohibit private employers from eventually conducting background checks and fully investigating the criminal past of potential employees,” but, “is designed to get applicants past the initial application stage, so that if they qualify for the job, they get a chance to explain themselves.”  Further, the statute expressly states that it does not prohibit an employer from notifying applicants that either law or the employer’s policy will disqualify an individual with a particular criminal history background from employment for particular positions.  To learn more about the law, please see Littler's ASAP, Minnesota Enacts “Ban the Box Law" Prohibiting Employment Application Criminal History Checkmark Boxes and Restricting Criminal Record Inquiries Until After Interviews or Conditional Job Offers, by Dale Deitchler, Rod Fliegel, Susan Fitzke and Jennifer Mora.

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 By Philip L. Gordon, Katherine (Katie) Dix, and Jordan Cornett

The number of states enacting social media password protection laws has risen once again, as such legislation continues to gain traction across the country.  On May 1, 2013, Colorado’s General Assembly became the ninth legislature to submit a bill to its governor restricting an employer’s ability to access the personal social media accounts of employees and applicants.  The other states are Arkansas, California, Illinois, Maryland, Michigan, New Jersey, New Mexico, Utah and Washington.  Compared to several of the more recent social media protection laws, such as New Jersey’s A.B. 2878, Colorado’s bill is relatively weak.

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By Philip L. Gordon and Joanna M. Silverstein 

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By Amber Spataro

On March 21, 2013, the New Jersey legislature overwhelmingly passed one of the most pro-employee social media password protection bills in the nation. The bill not only prohibited employers from requesting employee passwords to their personal social media accounts, but also prohibited employers from even asking employees or applicants if they possessed a personal social media account. The bill conferred on applicants and employees the right to sue for damages.

Over May 6, 2013, Governor Chris Christie issued a statement and a “conditional veto” of the measure. The conditional veto means the governor objects to parts of a bill and contains proposed amendments that would make the bill acceptable to him. If the legislature re-enacts the bill with the recommended amendments, the governor will have another opportunity to sign the bill and presumably would sign it.

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