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

Hawaii and Washington have recently enacted similar laws. Bills currently are pending in the following states: Connecticut, Illinois, Maryland, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, South Carolina, Vermont, and Wisconsin. Legislation also is pending in the United States House of Representatives to amend the Fair Credit Reporting Act to prohibit use of consumer credit checks in employment decisions.

There are several exceptions to the new Oregon prohibition. Specifically, federally insured banks and credit unions, businesses required by law to consider employee credit history, and police and other public employers hiring for law enforcement and airport security may still conduct credit checks. In addition, the law contains a somewhat vaguely worded exception that permits employers to conduct credit checks for “substantially job-related reasons,” so long as those reasons are disclosed to the employee in writing.

Employers should exercise caution in applying the “substantially job related” exception. It is unclear as yet how that exception will be interpreted, either by regulation or the courts. In the meantime, employers should consider obtaining a credit check on an applicant or employee only in those situations where the results of the check would have a significant bearing upon the determination whether the applicant or employee can perform essential job functions and even then should consult with counsel before relying on this exception.

This entry was written by Philip L. Gordon and Jennifer A. Nelson.

The EEOC had a deadline of May 21, 2009, to issue final regulations interpreting GINA’s employment-related provisions. With the Act’s effective date less than one week away, the EEOC still had not published final regulations. Further guidance on GINA’s requirements will be provided when the EEOC issues its final regulations. In the meantime, employers will find below a number of suggestions for complying with GINA.

Have You Taken These Steps to Comply with GINA Yet?

• Train human resources personnel, managers and recruiters about compliance with GINA, especially the provisions generally prohibiting deliberate acquisition of genetic information.

• Post a new EEO nondiscrimination poster prohibiting information based on genetic information.

• Revise EEO policies to include prohibitions against discrimination based on genetic information and associated retaliation.

• Discontinue requests to applicants and employees for family medical history except in the limited circumstances permitted in connection with a wellness or disease management program. (See Littler’s recent ASAP, which explains this exception.)

• Whenever requesting an employee to have medical professionals provide documentation, such as in connection with a fitness-for-duty exam or a request for a reasonable accommodation or leave, add a statement that family medical history or other genetic information should not be provided.

• Inventory personnel records--such as FMLA certifications seeking leave for the serious illness of a family member--that contain genetic information about an employee, store those records in a confidential medical file, and strictly limit access to those with a need to know.

• Implement procedures to prevent the disclosure of genetic information in response to a subpoena or civil discovery and to permit disclosure only when specifically required to comply with a court order. 

This entry was written by Ilyse Schuman and Philip Gordon.

Photo by Jonathan Lenz.

The employer's mistakes in Register-Guard were that (a) it did not enforce its policy against other non-business solicitations, even though the policy prohibited all "non-job-related solicitations;" and (b) it enforced the policy only when the solicitation in question was on behalf of a union.

Whether the Obama Board will continue to allow employers to ban union communications on their e-mail systems remains uncertain. Regardless, employers should consider the following:

• Employers can impose broad restrictions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with communications that might otherwise be protected by Section 7 of the National Labor Relations Act as long as the policy on its face does not discriminate against union activity.

• Employers can draft the policy in a manner that will capture union-related activities in addition to union solicitation.

• Employers should confirm that legitimate, non-discriminatory justifications exist for their line drawing, such as protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, preserving server space, and avoiding company liability for employees' inappropriate e-mail.

• Before disciplining an employee for violating the policy by engaging in union-related activity, confirm that the communication, in fact, violated the policy. Moreover, check that other employees who have engaged in similar conduct also have been disciplined.

• Implement procedures to ensure that the policy is enforced in a non-discriminatory manner.

This entry was authored by Laurent R. G. Badoux and Philip L. Gordon.

For additional analysis of this development, see Littler’s ASAP “The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities” by Laurent R.G. Badoux, Jennifer L. Mora and Kathryn E. Siegel.
 

What does that mean for an employer who receives notice that an employee intends to transition from one gender to another over the course of several weeks or months? More importantly, how does an employer reconcile this very public transition with potential state and federal laws protecting confidential medical information, which requires employers to maintain private information about an employee, and protect against potential common law claims like invasion of privacy?  This is made more difficult by the very nature of the public transition for transgender employees. For all practical purposes, it is somewhat similar to when an employee discloses to limited individuals that she is pregnant.  Employers must not and should not disclose this fact (that is private until the pregnant employee begins “to show”) to others who do not need to know or confirm this information to colleagues. And while such information may inherently or eventually become public due to an employee’s appearance, it necessarily is up to the employee to decide when and to whom to disclose such information.  

Such is the case with an employee who announces an intention to change gender. An employee’s transgender status, where the employee is in the process of transitioning, and especially the employee’s medical condition and/or plans for future medical procedures, must be treated as private and confidential. The decision of with whom and when a transgender employee shares such information should be left to the employee’s discretion. Medical information also may be received by employers in a variety of ways and circumstances. Depending on the nature of that information and how it is received, the information may be protected under federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), Genetic Information Discrimination Act (GINA), or the Americans with Disabilities Act (ADA) (which does excludes transgender status from the definition of disability, but protects most medical information of current employees). Regardless, out of sheer courtesy to the employee, the information should not be disseminated or the discussion of office chatter.

In addition to privacy concerns, employers should be aware that more and more cases are expanding the boundaries of discrimination under Title VII, and most particularly the definition of “sex.” In September 2008, the federal court of the District of Columbia ruled that the Library of Congress discriminated against Diane Schroer on the basis of “sex.” Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008). While dressed in traditionally masculine clothing and interviewing under her previous male name, Schroer was offered a job as a Terrorism Research Analyst with the Congressional Research Service, a division of the Library of Congress. After the job offer, but before starting and before undergoing sex reassignment surgery, Schroer informed the Library of Congress that she was under a doctor’s care for gender dysphoria. Schroer informed her future employer that, consistent with her treatment, she was about to change her name, begin dressing in traditionally feminine attire, and presenting herself full-time as a woman. The job offer was rescinded one day after Schroer disclosed her plans to transition. This groundbreaking decision was the first time a court has ruled that discriminating against someone for changing gender is sex discrimination under Title VII. While case law usually develops a bit slower, the Employment Non-Discrimination Act (ENDA) still is on the horizon. With a new administration and Congress, most predict that the version of ENDA likely to be introduced will add to Title VII express protections for gender identity or expression (in addition to sexual orientation). 

So, how does an employer manage to maintain this balance while also fostering a non-discriminatory work environment where all employees are treated with trust and respect? Some helpful guidelines include:

• Amend your Equal Employment Opportunity policy to prohibit discrimination based on gender identity or expression. (Several states, most recently New Hampshire and Washington, have passed bills protecting individuals on the basis of gender identity or expression. See also Jurisdictions with Explicitly Trans-Inclusive Discrimination Laws.)
• Be prepared to address questions and requests from employees who notify you of their intent to transition to a different gender.
• Write and implement a detailed policy and procedures suited to your own workplace environment to aid management, and the transitioning employee when a transgender employee decides to transition on the job.
• Do not make decisions about how to respond to certain requests from a transitioning individual based on where an employee is in the transition process.
• Keep in mind, at all times, that transitioning to a new gender is much more intense and intimate than simply ”changing one’s name” and dressing differently; this process truly is life-altering.

This entry was authored by Denise Visconti, a shareholder in Littler's San Diego office.

Under prior precedent, the Board would find “discrimination” where, for example, an employer disciplined an employee for using corporate resources to send union-related e-mail but permitted any other e-mail communications unrelated to work, such as invitations to bridal showers, recruiting for fantasy football leagues, or solicitations for charitable contributions.  Because almost every employer, upon close scrutiny, allows some e-mail unrelated to work — even if the “official” policy prohibits e-mail unrelated to work – this definition of “discrimination” effectively prevented employers from enforcing restrictions on union-related communications using corporate e-mail systems.

The Board overruled this prior precedent, explaining that “unlawful discrimination consists of disparate treatment of activities or communication of a similar character because of their union or other Section 7-protected status.”  The Board provided several examples to illustrate this much narrower definition of “discrimination”:  “an employer clearly would violate the [NLRA] if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.”  By contract, the Board explained, any of the following policies would be permissible (i.e., non-discriminatory), even if the policy incidentally interfered with union communications:

Ø      A policy permitting only business-related communications

Ø      A policy barring all solicitations

Ø      A policy permitting only charitable solicitations

Ø      A policy permitting solicitations only of a personal nature

The one remaining catch is that an employer’s motivation for line-drawing can not be anti-union animus.  In other words, an employer can not promulgate a policy that permits only charitable solicitations as a subterfuge for suppressing union-related communications over the corporate e-mail system.

What does Guard Publishing mean, in practical terms, for employers?

First, existing corporate e-mail policies most likely do not need to be revised (except in the unlikely event that the policy expressly prohibits union-related communications while permitting communications related to other membership organizations).  Employers should review their existing polices to ensure that they comply with the Board’s decision in Guard Publishing.

Second, employers who revise their e-mail policy, or prepare one for the first time, can impose broad prohibitions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with Section 7 communications.

Third, when promulgating a new or revised e-mail policy, employers should have legitimate, non-discriminatory justification for their line drawing, such as preserving server space, protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, and avoiding company liability for employees’ inappropriate e-mail.

Fourth, before disciplining an employee for using corporate e-mail to communicate about union-related activities, an employer should confirm that the communication, in fact, violated existing policy.  In Guard Publishing, the NLRB found that the employer had violated the NLRA by disciplining an employee who sent an e-mail which did relate to union matters but did not solicit employees to join the union and, therefore, did not violate the newspaper’s policy barring “non-job-related solicitations.”

Fifth, employers can discipline employees for using corporate e-mail to send union-related communications in violation of the employer's e-mail policy as long as employees engaged in similar conduct also are disciplined.  In other words, an employee can be disciplined for soliciting union participation only if employees who solicit participation in other membership organizations also are, or will be, disciplined.  Employers should implement procedures to ensure that they enforce their e-mail policy in a non-discriminatory manner.

The Board’s decision may be appealed. We will continue to comment on developments in this important case.  (For more in-depth analysis of this decision, see Littler ASAP "NLRB Rules That Employers May Implement a Corporate E-mail Policy That Has the Effect of Barring Union-Related Communications" by Philip Gordon and Michael Mankes.)