Carpe Diem: Privacy Protection in Employment Act

What these employees have in common is that their employers technologically monitored them, invading their privacy, yet their lawsuits were dismissed.6 Indeed, scholars generally agree that the law in the United States fails to adequately protect private sector employees from technological monitoring by their employers.7 This article proposes a solution: federal legislation intended to permit private sector employers to monitor their employees when necessary but to also provide their employees adequate privacy protection.8 Section II reviews the nature and extent of the problem of technological monitoring of employees by their employers. Section III surveys the laws and proposed legislation that serve as a foundation for the Proposed Act and articulates the strengths and weaknesses of the various approaches in comparison to that of the Proposed Act. Section IV illustrates how the Proposed Act flows from but is different than the prior work of scholars addressing the issue

Solidarity on Social Media

As with other technical revolutions before it, such as the printing press, radio, and telephone, social media has changed the way in which people communicate. Due to cases involving the use of social media by employees, among other reasons, the often little-known National Labor Relations Board (“NLRB” or “Board”) has become the center of national media attention. In the cases involving social media, the Board simply applies well-established, decades-old legal principles. Yet, employers, business groups, and the media have portrayed the Board as deviating from long-standing precedent, overstepping its role in regulating employment, and misunderstanding the impact of social media. However, no federal Circuit Court, to which Board decisions are appealed, has yet denied enforcement of a Board decision in a case involving social media. While other scholars have contributed to the buzz surrounding the Board’s decisions by arguing that the Board has been incorrect to apply its precedent to social media because social media differs from prior technology, this Article argues that the Board has properly used its wealth of expertise gained from many decades of enforcing labor management relations to extend its precedent in a flexible manner to this new technology. This Article first summarizes the Board’s decisions and guidance about employees’ use of social media and employer policies regulating the use of social media. It then discusses four simple clarifications that the Board should make in future decisions in order to make its regulation easier for employers and employees to understand and follow. First, the Board should clarify that any time more than one employee is involved in a social media discussion, the employees act concertedly. Second, the Board should clarify that employees act for mutual aid and protection when they discuss working conditions, whether or not they explicitly focus on improving those conditions. Third, the Board should clarify how it will determine when employees engaged in otherwise protected concerted activity lose the protection of the National Labor Relations Act due to the egregious nature of their social media use. Finally, the Board should clarify whether provision-specific disclaimers providing concrete examples of what constitutes protected concerted activity will be effective to render a social media policy legal. These clarifications will enhance the likelihood of continued enforcement of Board decisions involving social media by the Circuit Courts. Moreover, these clarifications have not been discussed in articles written by other scholars and, thus, contribute to the growing literature on this topic

Workplace Privacy and Monitoring: The Quest for Balanced Interests

We can see in 2001 that 77 percent of employers were engaged in monitoring. This may have increased slightly or decreased slightly, but whatever has happened, we know that this is a significant amount of employers--much greater than a majority--that are engaging in monitoring of their employees. We can also see the great rise in monitoring of computers and electronic files in a ten-year period between 1997 and 2007. Finally, we can see some of the newer technologies. In 2007, twelve percent of the reporting employers were monitoring the blogosphere, eight percent were monitoring GPS vehicle tracking, and ten percent were monitoring social networking sites. Probably, some of you are working with social networking policies with the companies that you are involved with. This is a hot topic right now. .... That gives you a picture of what the technology looks like, what the statistics are, and what we are grappling with in terms of the law here. In terms of the law, I am going to talk about the Electronic Communications Privacy Act ( ECPA ). There are also some state statutes that are going to be relevant. There is the tort that we are all very familiar with, dating back to Brandeis\u27 day, of the invasion of privacy, which is invasion of seclusion. And then finally we know that right now there is the hot topic with the Quon case coming down last term with the Fourth Amendment and public-sector employers and employees

Social Media, Privacy, and the Employment Relationship: The American Experience

This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social-media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform

Cooperative Principles and Fair Labor Standards: Volunteering for Food Co-ops

Article published in the Michigan State Law Review