what information can an employer ethically use in … · ethically use in making employment...

© 2013 Haynes and Boone, LLP

What Information Can An Employer Ethically Use in Making Employment

DecisionsMatthew Deffebach-Haynes and Boone, LLPSasha Vaikhman-Linn EnergyVictor Wright-TransCanada Services USA


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The Interview


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The Facebook Profile PictureCan a manager go cyber sleuthing for this and then use it to deny employment?

Can you pay a third party to do the cyber sleuthing for you?


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“It’s Fun to Comply with the…”


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• Can you tell someone that he/she is not hired based on the “at-will rule” when the real reason is a troublesome arrest?


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If a job is hazardous, can you ask about an employee’s medical history to ensure the employee can safely perform the job?


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Can an employer monitor an employee’s social media activity?


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Snoop Doggy Dog

• Social media snooping

– Is it OK to snoop into someone else’s private social media posts? (No!)

• Three influential cases

– Konop (9th), Pietrylo (DNJ), Ehling (DNJ)

• OK to use publicly-available information

• “Authorized User Exception”– ALL FORMS OF ELECTRONIC COMMUNICATION.

Consent is KEY.

Haynes and Boone, LLP


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Can you ask for consent to monitor an employee’s third party (AOL, Yahoo, etc.) e-mail account?

Can you access an employee’s personal device, such as an iPhone?


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Can you ask for an employee who is a Facebook friend with a co-worker you are investigating to give you access to that co-worker’s Facebook page?


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What would you do if somebody sent you an anonymous letter with postings by an executive on a website discussing his affair and you know the Executive is married.


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A competitor just sent you a link to a website with your top producing sales person, but the site is illegal (such as one that promotes pedophilia). What do you do?


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What if an employee posts on his Facebook page that he committed a crime over the weekend. Co-workers who are Facebook friends are now scared to come to work. What do you do?


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• Can you properly review an email sent through the company’s server between an employee and his/her lawyer?


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Waiver of A/C Privilege

– No if you failed to apprise employee that there is no expectation of privacy. Stengart

– Yes. Fazio (even without policy, employee took no steps to safeguard communications).


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Employee in Colorado just posted this on Facebook

Can you rely on it in taking adverse employment actions?


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Can you listen in on phone conversations of an employee who you believe may be planning to take off with your trade secrets and join a competitor?


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Can you search an employee’s personal vehicle on company property?


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Can you videotape employee activity anywhere on premises as long as the cameras are “open and obvious?”


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Can you use information from an employee’s spouse that the employee has joined a “crazy cult” to terminate the employee?


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Can an employer obtain information in an investigation and require an employee to keep the investigation confidential?


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Investigations

• Banner Health Sys., 358 NLRB No. 93 (July 2012)

• HR requested employee keep investigation confidential.

• Board found practice interfered with employees’ Section 7 rights- Employer concerns too generalized. Such a blanket approach violated the law.


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Can you discipline an employee for discussing private matters (other employees’ wages, benefits, etc.)?


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Section 7 Rights• Would the rule or policy

“reasonably tend to chill employees in the exercise of their § 7 rights”?– Including the right to engage in

“concerted activities” for the purpose of collective bargaining or other mutual aid or protection.

• Main issue - Overbroad


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Can you use information from an interview with an employee where the employee is interviewed “against his/her will” in that he/she insisted on having a representative present, but you refused?


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“I want a Representative”

• In Non-Union context, “too bad, so sad.”

• In Union context, these are Weingarten rights.– A fellow union member can attend when

requested.

– Or, employer must discontinue interview.


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•AND, Finally . . .


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Is it ever permissible to don these hair styles?

Any other questions regarding permissible information to be used in making employment decisions?


Thank you!Matthew Deffebach-Haynes and Boone, LLPSasha Vaikhman-Linn EnergyVictor Wright-TransCanada Services USA

what information can an employer ethically use in … · ethically use in making employment...

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