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

Employers are increasingly tracking their employees’ whereabouts as smartphones, laptops, and vehicles equipped with location-tracing technology become ever more prevalent. Statutes restricting the use of location-tracking devices typically do not impinge upon such tracking because the law’s definition of a tracking device does not encompass phones or laptops enabled with Global Positioning System (GPS) technology or because the law permits the vehicle’s owner to install a tracking device. The question remains, however, whether tracking employees’ location constitutes a common law invasion of privacy.

A recent decision by the federal court of appeals in the District of Columbia suggests that, in certain circumstances, employers who track their employees’ location could face liability for invasion of privacy. In U.S. v Maynard (pdf), the court held that the FBI had infringed upon the criminal defendant's reasonable expectation of privacy by “tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Key to the court’s decision was the intimate knowledge of the suspect’s life that could be gleaned from pervasive location-tracking as opposed to observing the suspect’s public movements for a short period of time:

Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

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On September 29, 2009, Littler Mendelson presented a webinar, hosted by HR.com, entitled, “Legal Perils of Social Media & Social Networking: What Every Employer Needs to Know.” Several of the attendees submitted questions by e-mail that could not be answered during the time allotted for the webinar. The answers to those questions are below.

Question: Because of the sketchy and inconsistent nature of HR policy around this topic, it seems reasonable for employees to ask for definition from their employers regarding use of social media to avoid being surprised should there be a potential issue. Would you agree?

Response: I would agree. The intersection of social networking sites and work is so new that accepted etiquette, custom, or norms have not yet developed. Employers can address this problem by establishing a policy that provides easily understood guidelines for employees’ social media activities whether authorized by the employer or not. Training also is very important in this area. Employers need to train managers and employees on how to respond to and handle the many complicated issues raised by the intersection of work and social media activity.

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Even a brief posting of private information on an Internet site amounts to “publicity per se” sufficient to support a civil action for invasion of privacy, according to a three judge panel of the Minnesota Court of Appeals in Yath v. Fairview Clinics, filed June 23, 2009. Candace Yath was a patient at the defendant clinic, where she sought testing for sexually transmitted diseases because she had a new sex partner. She was observed there by a clinic employee, Tek, who was an acquaintance. Tek later (and in violation of clinic policy) accessed Yath’s medical file, learning of Yath’s new sex partner (Yath was at the time married but estranged from her husband) and that Yath had been diagnosed with a sexually transmitted disease. Tek informed a second person, also an acquaintance (and relative) of Yath about the medical file information. Word soon spread to a group of people, including Yath’s husband.

One month later a web page appeared at MySpace.com bearing the title “Rotten Candy,” and including a photo of Yath and the contents of her medical file. The MySpace page asserted that “Rotten Candy” has a sexually transmitted disease, had recently cheated on her husband and was addicted to plastic surgery. After learning about the Internet posting, the clinic manager investigated. When the manager first accessed the webpage, it listed only six “friends,” indicating that at least six persons had accessed the page. When the manager tried again to access the web page, one or two days later, the webpage had been removed.

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Transgender individuals have good reason to be concerned about expressing their gender identity in the workplace. According to recent studies, at least one in five transgender individuals reports experiencing employment discrimination. A review of six studies conducted between 1996 and 2006 showed the following concerning reports of mistreatment in the workplace based on gender identity:

• 13%-56% of transgender individuals had been fired;
• 13%-47% had been denied employment;
• 22%-31% had been harassed, either verbally or physically, in the workplace; and
• 19% had been denied a promotion due to their transgender status.

Most employees choose whether, when, and to whom they disclose certain personal information at work. However, transgender individuals who decide to transition from one gender to another while remaining with their current employer do not have the same luxury. This largely is due to the inherently public nature of the transition. Indeed, an employee who intends to undergo a gender transition generally is required to live full-time in their new gender role for at least a year before becoming eligible to undergo sex reassignment and reconstruction surgery (if they so choose to have surgery, which many do not). During this time frame, transgender individuals often seek a variety of medical treatments, including hormone therapy, as well as change their names, modify their identity documents, and other procedures. As a result, employers and co-workers necessarily, but often reluctantly, become involved in a transitioning employee’s gender transition. While a gender transition is an inherently private process, it necessarily becomes known to co-workers at some point by the very nature of the “transition.”

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Student teacher Stacey Snyder lost her chance to earn a teaching certificate largely because of content that she posted on her MySpace page. The page included a picture of Snyder, captioned “Drunken Pirate,” in which, according to Snyder’s trial testimony, she wore a pirate’s hat, was drinking a “mixed beverage,” and had a “stupid expression on my face . . . giving the peace sign . . . expressing myself at the moment, basically peace, love happiness . . . .” The page also contained a post in which Snyder implied that the teacher who was supervising Snyder’s participation in the student teacher program, Nicole Reinking, was the reason that Snyder would not apply for a job at Conestoga Valley (CV) High School in Pennsylvania after completing the program.

Unfortunately for Snyder, a CV High teacher viewed the picture and the post and gave a copy of both to Reinking. Reinking, who had not been pleased with Snyder’s performance even before receiving the MySpace content, promptly complained to her supervisor who, in turn, brought the MySpace content to the attention of the school’s superintendent. He suspended Snyder from the student teacher program. In her final evaluation from Reinking and from her supervisor at Millersville University — where Snyder was pursuing her teaching certificate — Snyder received an “unsatisfactory” rating for “professionalism.” That rating disqualified Snyder from earning a teaching certificate.

Snyder sued Millersville University in federal district court in Philadelphia, alleging that the university had violated her First Amendment rights by denying the teaching certificate based largely on the MySpace content. In what appears to be the first published decision addressing an adverse action (at least akin to an adverse employment action) based upon content on a social networking site, the court, after a two-day bench trial, rejected Snyder’s First Amendment claim and denied Snyder’s request for an order compelling Millersville University to award her a teaching certificate.

The decision is important for private employers, but not because of its legal underpinnings, which turned largely on legal issues that are irrelevant to the private workplace (i.e., state regulations applicable to student teachers and First Amendment jurisprudence concerning speech by public employees and students at public schools). While the applicable legal framework created substantial obstacles, the more significant problem for Snyder (apparent to any experienced trial lawyer reading between the lines of a carefully crafted opinion) was the unsympathetic posture of her factual position.

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On November 6, 2007, the California Supreme Court heard long-awaited arguments in the closely watched "medical marijuana" case of Ross v. RagingWire Telecommunications, Inc.  Gary Ross, a network administrator, was terminated eight days into his employment after testing positive for marijuana.  Ross challenged the termination because he had a doctor's recommendation that he use marijuana to relieve chronic back pain.  Ross has alleged that because his use of marijuana was lawful under California's Compassionate Use law, his employer was obligated under state law to accommodate his disability by permitting him to use marijuana as recommended by his physician.  Ross’s attorneys also argued that his discharge violated California's public policy, including California’s constitutionally created right to privacy.

Marijuana use is illegal under federal law.  California has effectively “decriminalized” marijuana use by adopting the Compassionate Use Act of 1996.  The Act allows individuals to purchase, possess, cultivate, and use small quantities of marijuana for medicinal purposes without fear of prosecution by state officials.  Federal officials may prosecute those who use marijuana pursuant to the state law, but as a practical matter, enforcement efforts are much more likely to be focused on cultivation and distribution networks.  The statutory language makes it clear that employees may not possess or use marijuana at work – leading Ross’s attorneys to argue that by implication, the law intended that employees be permitted to use the drug outside of work. Continue Reading...

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This year's second annual National Drug-Free Work Week is taking place October 14 through 20. The purpose of Drug-Free Work Week is to highlight the importance of being drug-free as an essential component of a safe and healthful workplace.   Drug-Free Work Week is sponsored by the U.S. Department of Labor in collaboration with members of its Drug-Free Workplace Alliance.   

In a press release, the Department emphasized the widespread importance to employers of Drug-Free Work Week themes, consistent with a survey completed in November 2006 for Hazelden Foundation, a national non-profit organization that helps people with addiction.  The survey found that while most human resources professionals recognize substance abuse as one of the most serious problems facing the workplace today, few employers proactively address these issues but, rather, wait for problems to arise. Continue Reading...

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