A presentation for human resources personnel and employment lawyers on common issues in the workplace and appropriate responses.

1. WORKPLACE BEHAVIOR
AND PRIVACY ISSUES
NBI ─ Philadelphia
Presented by:
Thomas Benjamin “Ben” Huggett
Littler Mendelson, P.C.
February 18, 2015

2. Thomas Benjamin Huggett
Littler Mendelson, P.C.
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102
276.402.3035
tbhuggett@littler.com
Presented by:

3. Workplace Behavior and
Privacy Issues: Overview
• Employee surveillance
• Searches, monitoring
• Dress code, personal
appearance
• Employee testing
• Workplace violence
• Off-duty behavior
and activities

4. “Reasonable Expectation of Privacy...”
• Pennsylvania Courts give broad latitude to private
employers, following the principle that “the right of an
employer to run his business according to his own
beliefs and judgment may not be restricted unless
compelling reasons to the contrary exist.” Hayes v.
Unemployment Compensation Board of Review (PA
Supreme Court 1978).
• The Declaration of Rights in the Pennsylvania
Constitution protects citizens against the government’s
power. They do not protect one private citizen from
another, and do not protect an employee from an
employer.

5. Pennsylvania Law
• In the case of Borse v. Piece Goods Shop, Inc., 963 F.2d 611, (3d
Cir. 1992), the Court found that under Pennsylvania law a claim may
exist against an employer asserting a tortious invasion of privacy.
• According to the Restatement (Second) of Torts § 652B, the tort of
intrusion upon seclusion is:
– One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the intrusion
would be highly offensive to a reasonable person.
• The Court added to the Restatement's standard, stating that a party
would only be held liable when the "intrusion is substantial" and
"highly offensive to the ordinary reasonable person.”
• The court set forth a simple balancing test in order to determine
whether the invasion of privacy was substantial and highly offensive,
weighing the employer's interest in keeping the workplace drug-free
against the employee's privacy interest.

6. Employee Surveillance in
the Workplace
• Question: May an employer
install a secret video
camera in a semi-private
office to try to find out who
is engaging in improper
Internet use?
• Answer: Probably, yes.

7. Practical Pointers re Surveillance
• Spell out employer rights and
define employee expectations
in written policy
• Have employees read
and acknowledge
the policy
• Consider time, place,
scope, nature of
employment
• No audio
• Think twice

8. Surveillance of Union Activity
• Whenever employees, unionized or not, meet or
discuss union organizing or union activities,
wages, benefits, or conditions of employment,
their activities are protected under the National
Labor Relations Act (NLRA)
• The NLRA prohibits employers from:
– Visually monitoring employees’ union activity
– Giving the impression of surveillance if it improperly
interferes with union activities
– Photographing or videotaping employees as they
engage in protected concerted activity absent proper
justification

9. Workplace Searches: Reduce
Employee Expectations of Privacy
• Everything is “Subject to Search”
– Inform employees that backpacks, briefcases, purses,
furniture, lockers, etc. are subject to search
• Keep the keys!
• Identify the purpose of the search
– An employer that has a legitimate
business reason for a search
typically may prevail if sued
for invasion of privacy

10. Social Media Use –
Types of Misconduct
• Employee Morale/
Gripe Sessions
• Harassment/Title VII
• Defamation
• Disclosure of Trade
Secrets
• Misuse of Intellectual
Property
• FTC Violations
• Excessive Use
(Slacking)
• Violations of Other
Policies
• Pornography
• Violence
• Security Breach
• Union Organizing

11. The Legal Limits
1. Privacy
2. 1st and 4th Amendments
3. Stored Communications Act (“SCA”)
4. Protected Concerted Activity - NLRB
5. Lawful Off-Duty
Conduct
6. Unfair Business
Practices

12. E-Terminations
• 30% of employers have terminated
employees for improper Internet use:
– Sexual, romantic, or pornographic content
(96%)
– Game sites (61%)
– Social networking sites (50%)
– Entertainment sites (40%)
– Shopping/auction sites (27%)
– Sports sites (21%)

13. Text Message Monitoring?
• U.S. Supreme Court
held unanimously that
employers, under
certain circumstances,
could review employees’
text messages
City of Ontario v. Quon (U.S.
Supreme Ct. 2010)

14. Reasonableness of Search
1. City had a legitimate business justification
for the search
– Was the 25,000 character text message limit too
low?
2. Search was not excessive
– Limited to relevant sampling of two months
– Redacted texts sent during non-working hours
• Holding: Because the search was
reasonable, the City did not violate Quon’s
Fourth Amendment rights

15. Quon Court: E-Policies Really Matter
• “[E]mployer policies concerning
communications will of course shape the
reasonable expectations of employees,
especially to the extent that such policies
are clearly communicated”

16. Personal E-mail Accounts
• A report published in July 2012 found that
workers spend almost 1/3 of all of their
work time (28%) checking or responding
to e-mail

17. “Password Protection Laws”
• Generally prohibit employers
from asking applicants or
employees for personal social
media log-in credentials
– 18 states: AR, CA, CO, IL, LA,
MD, MI, NH, NJ, NM, NV, OK,
OR, RI, TN, UT, WA, WI
– Bills pending in 22 states,
including: AZ, CT, GA, HI, IA,
KS, LA, MA, ME, MN, NC, NE,
NH, NJ, NY, OH, OR, PA, RI,
TX, WI, WV

18. Substantial Variations
• All but two states more broadly define prohibited
conduct: NM and UT
– Prohibited conduct = shoulder surfing, mandatory change in
privacy settings, friending
• All but five states define protected accounts to include
any online account: IL, NJ, NM, OR, NH
• Exception For Workplace investigations:
– Personal social media relevant to the investigation: AK, CA, LA,
MI, NJ, OK, TN, UT, WI
– Investigations into misappropriation or securities fraud: CO, MD,
WA, OR
– No express exception: IL, NV, NM

19. NLRB’s Increased Focus on
Social Media
• Section 7 of the NLRA has always
protected employees’ right to engage
in “concerted activities” for mutual aid
and protection
• In recent years, the NLRB has
increasingly focused on employment
actions allegedly made in response to
employee activity in social media
• Has also released several memoranda on social media
policies
• Chairman Mark Gaston Pearce: the NLRB is not looking to
create new standards, but to keep its jurisprudence up to date
with the evolution of the workplace

20. What is Protected?
• Section 7 applies equally to traditional
offline communications and
communications over social media – a
Facebook post is can be afforded the
same protection as water-cooler talk
• Section 7 applies even if the workplace
does not have any union employees
– Conduct that speaks to terms and
conditions of employment
• Construed very broadly
– Speech that incites or induces co-worker
participation / comment
WHEN CAN AN EMPLOYEE BE DISCIPLINED?

21. Don’t Overreact to “Harassment”
• Hispanics United of Buffalo, Inc. v. Carlos
Ortiz (2012)
• Employee posted on Facebook about co-
worker not doing enough for client
relations and invited co-workers to
support and “like” her status
• 4 co-workers responded with comments
– management fired all 5 for “bullying and
harassing” the colleague criticized
• NLRB found the Facebook comments to
be concerted activity for “mutual aid and
protection”

22. Expletive-Laden Posts?
• Pier Sixty LLC (2013)
• In reaction to a labor dispute, a food
server took to his Facebook page
and posted “[Boss] is such a
NASTY MOTHER F*****R . . . F**k
his mother and his entire f*****g
family!!! . . . Vote YES for the
UNION!!!!!”
• NLRB found this to be protected,
concerted activity, and ordered the
employee reinstated
Is there ANY limit?

23. Electronic Media Usage Policies
1. Allow non-business e-mail but warn
employee that such e-mail will be monitored
in the same way as business e-mail
2. Specifically warn employees that copies of
e-mail sent through a personal e-mail
account could be stored on company
equipment and will be monitored
3. Inform employees that corporate electronic
resources cannot be used to consult an
attorney except in furtherance of the
company’s interests

24. Electronic Media Usage Policies
4. Obtain executed acknowledgement from
each employee
5. In-house and/or outside counsel should
consult local ethical rules and relevant
jurisprudence on waiver of attorney-client
privilege before reviewing any potentially
privileged communications between an
employee and her attorney discovered on
any of the employer’s electronic resources
6. Be careful with any adverse employment
action based on such communications.

25. Employer Access to Employee Sites
• Unrestricted profiles are usually fair game
• Do not use false pretenses to access a
restricted social networking profile
• If a “friend” provides access to the profile,
confirm that the “friend” is a user
• Document that the “friend’s”
assistance is voluntary
• Supervisors: choose your
“friends” carefully!

26. E-Rules of Thumb
1. If it’s out in public, it’s probably fair game
2. Adopt/enforce broad electronics policy
that includes social media activity
3. Do not use pretext to access password-
protected content
4. Avoid surveillance of protected concerted
activity
5. Check lawful off-duty conduct laws before
taking adverse action

27. E-Rules of Thumb
6. Consider requesting consent before
conducting e-review
7. Focus on legitimate business needs
8. Treat similarly situated employees
consistently
9. Be mindful of privilege issues
10.Inform and train
11.Dignity, dignity, dignity

28. Dress Code and Personal Appearance
• Dress and grooming policies are generally
lawful unless they:
(1) discriminate on a basis
that is protected, or
(2) do not allow religious
accommodation

29. Dress codes may not:
• Infringe on religious
beliefs
• Discriminate based on
disability
• Encourage sexual
harassment
• Infringe on rights
protected under FEHA
or Title VII

30. Challenges to Employer Dress Codes
• Common challenges include charges
that the dress code discriminates on the
basis of:
– sex or gender
– race
– ethnicity and
national origin
– disability
– religion

31. Business Need?
• Pennsylvania law has long
permitted employers to adopt
dress, appearance, and
grooming standards based on
business need
• Differences in business attire
between men and women based
on widely accepted social norms
or customs, and the need to
present a professional image,
are permissible where there is a
clear, non-discriminatory
rationale

32. Cross-Dressing
• In 2004, FEHA added as a protected class an
employee whose actual sex or the perception
of the employee’s sex, identity, appearance, or
behavior, whether or not it is the same as that
traditionally associated with the person’s
birth sex
• This amendment was intended
to protect transgender
employees and their right to
appear or dress consistent with
their identity

33. Dress Code Policies
• Never require individuals to dress or groom
themselves in a manner inconsistent
with their gender identity or expression
• Always ensure that standards of dress serve
a reasonable business purpose and do
not discriminate or have a discriminatory
impact on the basis of an individual's sex or
an individual's gender identity or expression

34. Tattoos and Body Piercing
• Customarily female employees may wear
pierced-ear jewelry as part of their work attire
• Increasingly common to see ear jewelry for
men as well as multiple earrings, body
piercing, rings, and tattoos
• Currently, tattoos and body piercing,
absent implication of a protected class,
are not recognized as indications of
religious or racial expression nor are
they generally protected under
discrimination laws; thus, employers
may regulate and, within reason,
standards may differ between men
and women

35. Practical Tips
• Make sure your dress code is reasonable,
nondiscriminatory, and tied to business needs and
purposes, e.g., maintaining employer’s image,
promoting productive environment, fostering
respect, compliance with health/safety standards
• Include procedures for requesting accommodation
or exception for appropriate reasons
• Publish dress code to employees and applicants
• Apply the dress code consistently and equally
• Discipline, where unavoidable, per dress code
should also be applied consistently and uniformly

36. Employment Tests: Guiding Principles
• Test must meet legitimate business necessity
• Must measure what they are supposed to measure
• No disparate impact
• Be aware of Title VII, ADA, ADEA
• Affirmative action requirements for federal contractors
• Other nondiscrimination laws (e.g., regulating
background checks)
36

37. Americans with Disabilities Act
37
• Tests/selection
procedures cannot be
used on the basis of
disability unless they are
job-related and
consistent with business
necessity
• Example: Not all
cognitive, skills, physical
agility or job knowledge
tests pass muster

38. Integrity Tests
• Use with caution
• Should not feature questions regarding
– Religious beliefs or affiliations
– Beliefs or opinions on racial matters
– Political beliefs or affiliations
– Sexual behavior
– Various lawful activities
• Check with legal counsel for compliance
38

39. Physical Capability Tests
• Requirements:
– Job-related
– Job necessity
– Must not measure
extraneous characteristics
39

40. To Drug Test or Not to Drug Test?
Considerations:
• Type of job
(e.g., safety sensitive?)
• Type of individual
(applicant v. existing
employee)
• Routine or random?
• Testing procedure
• “Reasonable expectation of privacy”?

41. Summary
• Test permissible if measuring skills and
knowledge needed to perform essential
job functions, consistent with business
necessity
• Physical and Personality Tests – ADA
• Ensure Test Validity
41

42. Violence in the American Workplace
• U.S. has the highest number of incidents of
interpersonal violence per capita of any
nation not engaged in civil war
• U.S. has a rate of violence greater than four
times that of any other nation
• In 2003, gunshots became the number one
killer in the U.S. workplace
• One in five high school students carry
weapons (an estimated 270,000 guns are
carried to school daily)

43. Perpetrators of Workplace Violence
• Violence by strangers
• Violence by customers/clients
• Violence by co-employees/
former employees
• Violence by family
members or
personal relations

44. Workplace Violence: Legal Issues
• Abusive, potentially violent
employees may have diagnosed
mental illness
• Strict EEOC Guidelines
concerning psychiatric disabilities
• Legal prohibitions on disclosure of
medical information
• OSHA expectation of protection of employees
• Focus on the conduct, not the mental condition
• Apply policies concerning workplace violence consistently
• Include the ability to perform work safely in job descriptions

45. Conceal and Carry Laws
• Laws providing for the legal
carrying of concealed
weapons is highly localized
• 48 States currently have
laws permitting concealed
weapons
• Some municipalities have
particular laws and
regulations concerning
weapons
• Automobile storage laws

46. Proactive Measures:
A Well-Drafted Policy
• Makes a clear “no tolerance” statement
• States the problem and concern for its human
and operational costs
• Demonstrates your company’s commitment
• Defines exact behavior prohibited
• States your company’s goal without creating
unnecessary legal/contractual obligations
• Don’t say “The Company will take ALL
measures to prevent workplace violence”

47. Proactive Measures:
A Well-Drafted Policy
• Contemplates threats from third parties
• Plainly describes reporting requirements
and procedures
• Defines the consequences for violations
• Provides actual deterrent
• Sets the foundation for eliminating
hesitation in reporting concerns
• Creates diminished right of privacy re
searching personal belongings, vehicles

48. Proactive Measures:
Effective Training
• Reinforces “zero tolerance”
• Emphasizes that “little signs”
and “gut feelings” are vital
• Teaches employees steps to
report violence ― actual,
perceived, or threatened
• Reduces the tolerance for
threats or violence in any form
• Includes psychological, legal,
and security issues
• Potentially offered at new hire
stage and at regular intervals

49. Proactive Measures
• Use of Employee
Assistance Programs
effectively
• Discipline employees for
making threats or engaging
in intimidating behavior
• Distribution of a zero-
tolerance violence in the
workplace policy
• Provide employees with
conflict resolution training

50. Off-Duty Conduct
Employee conduct outside the walls of your
business can:
• Impact company’s reputation with
customers/competitors
• Create workplace tension
• Lead to legal liability for the company

51. Lifestyle Discrimination
• Most states have statutes that prohibit employers from
prohibiting off-duty conduct, aka “lifestyle
discrimination” (e.g., smoking, drinking, diet, “risky”
hobbies like hang-gliding)
– The majority of states that have enacted lifestyle
discrimination laws allow some regulation regarding use of
tobacco products
– A few states have statutes to protect employees’ “use of
lawful products” or “lawful consumable products” that
would include not only tobacco but also alcohol and
unhealthy foods
– The broadest statutes, enacted by California, Colorado,
New York, and North Dakota, appear to protect virtually
any lawful conduct occurring during nonworking hours,
away from work

52. Generally, Employers CAN ...
• Regulate non-protected off-duty conduct that:
– Interferes with workplace relationships
– Advocates a competitor’s products over your own
– Disparages customers
– Constitutes a misrepresentation
– Causes undue embarrassment to the employer
– Discloses confidential/proprietary information

53. Off-Duty Romance?
• Sexual harassment suits often arise from
what started as consensual relationships
• The goal is to keep off-duty conduct from
impacting the workplace
• Advise employees that the
company reserves the right
to transfer or terminate
individuals in relationships
to prevent issues
• Should you consider a
“Love Contract”?

54. Texting After Hours
• Regulate use of
business computers
and PDAs after hours?
• Wage and hour
concerns ... “checking
in” after work can be
compensable time
• Blurs the lines between
on duty/off duty

55. Biggest Concern:
Employee Bad Judgment
• This is the problem you
most expected
• Harassment, political
insensitivity, and just
plain stupidity
• Legally, this may not be
anything new, but your
HR team has to be ready
to deal with the issues
• A few examples ...

56. Questions?

57. WORKPLACE
BEHAVIOR
AND PRIVACY
ISSUES
NBI ─ Philadelphia
February 18, 2015
Thomas Benjamin Huggett
Littler Mendelson, P.C.
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102
267.402.3035
tbhuggett@littler.com