Monthly Archives: February 2013

February 26, 2013

Who Owns Your Employees’ LinkedIn Profiles? The Answer Might Surprise You.

By Mark B. Wiletsky

If your employees use LinkedIn to establish and maintain contacts for business purposes (such as sales), what happens to those accounts—and contacts—when the employee quits or is fired?  Can an employer who has access to an employee’s LinkedIn profile change her password and replace information in her profile following her termination?  No, says at least one federal judge in Pennsylvania recently, though that case is not yet over.  As explained below, employers should be careful before assuming that they own their employees’ LinkedIn profiles. 

Employer Access to High Level Executive Profiles

Edcomm, Inc., a banking education company, strongly urged its employees to create LinkedIn accounts using their company email addresses as a business networking tool.  It had employee policies governing online postings and specified that if employees identified themselves as an Edcomm employee, they needed to use a specific template that contained pre-approved content about the company and referred to the company’s website.  The company provided a photographer to take professional photos for employee use on their LinkedIn accounts.  It also allowed some Edcomm employees to access, develop and administer the LinkedIn accounts of senior management, such as responding to invitations, inviting new contacts and researching good news stories to include on their LinkedIn pages.

After being acquired by another company, Edcomm, Inc. terminated its company president and founder, Linda Eagle, as well as several other top executives. After her termination, Edcomm locked Eagle out of her LinkedIn profile by changing her password.  It then changed the information on the profile to that of the new acting CEO.

Company Argues LinkedIn Account was Akin to a Client List

Eagle sued Edcomm alleging numerous violations of state and federal law, including invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft and conversion.  Edcomm argued that the LinkedIn accounts were used to contact new clients and promote the company’s services.  As such, the company claimed that its take over of Eagle’s account was similar to the company keeping possession of a client list after an employee is terminated. 

The Judge didn’t buy it.  At a recent hearing, Judge Ronald Buckwalter stated that Edcomm likely had no right to change Eagle’s LinkedIn password and change her profile information.  He noted that the company had no internal policy that would hand over ownership of employee profiles when employees left the company and that the LinkedIn accounts belonged to the individual employees. 

Be Prepared For An Employee’s Departure

Although it is wise to implement a social media policy to address employee use of company information on personal or company-sponsored social media accounts, you need to be wary of who owns the rights to such information.  First, as indicated in the Edcomm case above, you risk potential invasion of privacy and other claims.  Second, the employee might have rights to the account independent of the employer, as established in an agreement between the service provider and the employee.  At a minimum, consider implementing specific policies that address these issues up front, and consider what services your employees are using to establish and maintain connections with clients.  The fact that contacts are connected through LinkedIn, Facebook, or some other social media site can significantly impact an argument that such contacts are protectable trade secrets.  Lastly, don’t forget that forcing access to employees’ social media can be risky.  Four states have enacted legislation to prohibit or restrict employers from asking for social media access and many other states are currently debating similar restrictions.

February 15, 2013

Immigration Law Seminars: H-1B and I-9 Compliance

Last month, President Obama and the U.S. Senate announced sweeping changes to current immigration laws. The new proposal would legalize 11 million undocumented workers, radically change the current immigration system, and impose new obligations onto employers. 

Please join us for a discussion on the implications for your business.

Visa Basics for High-Tech Foreign Workers
Healthcare, high-tech, and mining companies are increasingly turning to the global labor market to find the right talent. In 2012, U.S. employers sponsored 85,000 new H-1B workers, including many computer software developers and engineers from China and India. In preparation of the April 1st H-1B filing date, we will discuss the fundamentals of the H-1B visa process, including:

  • Jobs that qualify for the H-1B visa
  • H-1B cap and cap exempt employers
  • Recent changes in the Labor Condition Application process
  • Documents that must be retained after filing an H-1B petition
  • Transitioning H-1B workers to permanent residency
  • Legal liabilities to be aware of in the H-1B process

 

I-9 Audits and Investigations
How will new Congressional immigration reform affect your business? From October 2011 through June 2012 Immigration and Customs Enforcement (ICE) issued 2,600 notices of inspection, issued 275 final orders totaling $6 million in fines, and criminally arrested 91 managers accused of violations related to employment eligibility verification. Join us for discussion on:

  • The federal I-9 immigration audit and investigation process
  • Industries targeted for immigration investigations
  • The effect that deferred action for Dream Act beneficiaries
  • Changes to current immigration enforcement based on Congressional proposals

THREE OPPORTUNITIES TO ATTEND:

February 28, 2013
8:00 – 8:30 a.m. MST:  Breakfast and Registration
8:30 – 10:00 a.m. MST:  Presentation with Roger Tsai and Peter Wingate
10:00 – 10:30 a.m. MST:  Q&A

Holland & Hart Denver Office Click here for a map and directions
555 17th Street, Suite 3200
Denver, CO 80202


March 7, 2013
8:00 – 8:30 a.m. MST:  Breakfast and Registration
8:30 – 10:00 a.m. MST:  Presentation with Roger Tsai and Michael Cousins
10:00 – 10:30 a.m. MST:  Q&A

Holland & Hart Salt Lake City Office Click here for a map and directions
222 S. Main Street, Suite 2200
Salt Lake City, Utah 84101


Via webinar: March 6, 2013
Noon – 1:00 p.m. MST:  Presentation with Roger Tsai
1:00 – 1:15 p.m. MST:  Q&A
Webinar login information will be included in your RSVP confirmation.


SPEAKERS CLICK NAME TO VIEW BIO
Roger Tsai, Of Counsel, Holland & Hart llp
Michael Cousins, ICE Investigator (Speaking in Salt Lake City)
Peter Wingate, Colorado Dept. of Labor Deputy Director (Speaking in Denver)

CLE & HRCI CREDITS PENDING  

Click here to RSVP now.

February 12, 2013

Minimizing Exposure to Employment Claims: What Every Employer Should Know

Employment lawsuits drain your time, money, energy and perhaps your brand.  Whether you are new to human resources or an experienced manager,  you need to stay abreast of the latest legal issues that could land your organization in hot water. 

 At this Employment Law breakfast primer, two leading employment law experts will lead you through recent court decisions and significant regulatory changes affecting the employer/employee relationship.  We will offer practical pointers on how to manage your workforce while staying out of court.

In this seminar, you will learn: 

  • Red flag issues that often lead to costly litigation.
  • Practical tips for avoiding hiring, firing, and discipline mistakes.
  • Best practices that help you defend an employment lawsuit, if one is filed.

Agenda:

Thursday, March 7, 2013

7:30 a.m. – 8:00 a.m.

Registration and Breakfast

8:00 a.m. – 9:00 a.m.

Program

Westin Westminster CLICK HERE FOR A MAP AND DIRECTIONS
10600 Westminster Blvd  
Westminster, CO 80020
(303) 410-5000

Speakers: CLICK NAME TO VIEW BIO
Steve Gutierrez, Partner, Holland & Hart LLP
Mark Wiletsky, Of Counsel, Holland & Hart LLP

CLE & HRCI Credit Pending

February 12, 2013

FMLA and Facebook Don’t Mix – Vacation Pictures Catch Employee in a Lie

By Mark B. Wiletsky

Co-workers “friend” each other on Facebook all the time.  But sometimes those “friends” turn against their own, providing employers with evidence of wrongdoing.  In a recent case (Lineberry v. Richards), an employee learned the hard way that posting pictures on Facebook can come back to bite you. 

Lineberry, who worked as a full-time Registered Nurse, claimed she needed Family and Medical Leave Act (FMLA) leave after suffering severe pain in her lower back and legs.  Her employer granted her request.

About four weeks into her leave, Lineberry took a prepaid, planned vacation to Mexico.  As many people do today, Lineberry posted photos of her Mexico trip on her Facebook page.  Her co-workers, who had legitimate access to Lineberry’s Facebook page, saw the photos, including pictures of Lineberry riding in a motorboat, lying on her side while holding up two bottles of beer, standing while holding a grandchild on each hip and making trips to Home Depot.  Based on the Facebook postings, the co-workers complained to Lineberry’s supervisors.  Responding to her supervisor’s inquiry about her activities, Lineberry wrote that she had used a wheelchair at both airports while on her trip.

When Lineberry was released to return to work, her employer called her into an investigative meeting.  Initially, she stood by her claim that she had used wheelchairs in the airports on her trip, but after questioning, she admitted that she lied and had never used a wheelchair while on vacation.  A week later, Lineberry was terminated for dishonesty and falsifying or omitting information, a violation of the company’s policies.  Lineberry sued, claiming that her employer violated her FMLA rights. 

Termination Was Based on Dishonesty, Not FMLA

During her deposition, Lineberry admitted again to lying about her use of a wheelchair while on vacation.  Because of the undisputed evidence of Lineberry’s dishonesty, the Court ruled that her employer had the right to terminate her without regard to her leave status.  The Court explained that the FMLA does not afford an employee greater rights that he or she would have if not on FMLA leave.  Because her employer had the right to terminate Lineberry for dishonesty whether or not she took leave, the termination on that basis was permitted by the FMLA.

Employer Lessons

A few key pointers for employers:

1)  Although you should always be cautious before disciplining or terminating an employee on protected leave, keep in mind that the employee’s leave status is not a free pass to lie or commit fraud. 

2)  Of course, before firing or taking disciplinary action against an employee on leave, make sure you have all the facts.  If you have a progressive discipline policy, follow all procedures set forth in the policy.  The employer in Lineberry waited to make its termination decision until it called Lineberry in for an investigative meeting, as was required under its discipline policy.  Failure to follow your own procedures can lead to lawsuits even when your underlying reasons for discipline or termination are justified.

3)  Don’t “friend” your employees so that you can surf their Facebook pages – you could be liable for invasion of privacy.  In addition, you could learn characteristics that you otherwise would not know (e.g., religion, national origin, disability, etc.) that could later serve as the basis for a discrimination claim. However, if others who legitimately obtained information from Facebook report it to you, treat it like any other workplace complaint and conduct an appropriate investigation.

February 11, 2013

Wage and Hour Collective Actions Face Higher Class Certification Standard

By Jeffrey T. Johnson

Employers can thank the Seventh Circuit Court of Appeals for raising the standard that employees must meet when seeking final certification of a Fair Labor Standards Act (FLSA) collective action or state wage and hour law class action.   In an opinion written by Judge Richard Posner, the Court recently refused to certify a proposed class of 2,341 employees, finding that a trial would not be manageable due, in large part, to the differences in damages among the class members.  Espenscheid v. DirectSat USA, LLC, No. 12-1943 (7th Cir. Feb. 4, 2013).  The ruling will likely make it more difficult for plaintiffs to get a wage and hour class certified at the critical final certification stage.

Court Finds No Reason for Different Certification Standards

FLSA collective actions are similar in many respects to class actions brought under Rule 23 of the Federal Rules of Civil Procedure—both permit an individual (or small group) to file suit on behalf of all similarly situated individuals.  One key difference, however, is that Rule 23 sets forth relatively rigorous standards for certifying a class while FLSA collective actions are reviewed under a more lenient “similarly situated” analysis, typically pursuant to a two-step approach.  The Seventh Circuit’s recent decision turns that distinction on its head.

Noting that Rule 23’s procedural provisions are intended to promote efficiency, Judge Posner stated “there isn’t a good reason to have different standards for the certification of the two different types of action.”  Moreover, he wrote that “[s]implification is desirable in law,” especially given the fact that plaintiffs often join a collective action and a class action in one lawsuit.  This collapse of differing class certification standards gives employers beneficial language to argue against collective action certification on the basis of Rule 23 commonality, numerosity and typicality requirements.

Decertification Proper Where Trial would be Unmanageable

The Court went on to reject certification of the proposed DirectSat “class,” finding that the plaintiffs had not presented a feasible trial plan.  The proposed “class” consisted of 2,341 technicians who installed and repaired home satellite dishes.  They worked directly in customers’ homes and were paid on a per job basis, not a fixed hourly wage.  They alleged that DirectSat forbid them from recording time spent on certain tasks, such as filling out paperwork and picking up tools, and that they often worked more than 40 hours a week without being paid overtime. 

Plaintiffs’ arguments to achieve class certification failed.  Judge Posner held that lack of uniformity on the amount of damages suffered by each technician doomed certification.  Plaintiffs’ proposal to use 42 “representative” members of the class to determine damages on behalf of the entire class was rejected.  A further complication was the piece-rate pay basis where those technicians who completed jobs quickly made a higher “hourly” rate than those who worked slower.  In the end, plaintiffs’ counsel admitted that it would “be difficult for Plaintiffs to provide an objective framework for identifying each class member within the current class definitions without making individualized findings of liability.”  The failure to provide a feasible litigation plan to address these complexities doomed the plaintiffs’ effort to obtain final class certification.

Good Development for Employers

This is a significant decision for employers facing wage and hour collective actions.  The standards for final class certification are not very well-developed in most jurisdictions, and Judge Posner’s well-reasoned opinion will carry substantial weight well beyond the Seventh Circuit.  Further, if the more stringent Rule 23 standard is to be applied upon final certification, it is only logical that courts will also begin applying it at the earlier conditional certification stage, thereby making class certification more difficult for plaintiffs.  Judge Posner and the Seventh Circuit have provided employers with an important tool to defend against these types of class and collective claims.

February 4, 2013

HIPAA Omnibus Rule

Have questions about the January 17, 2013 HIPAA Omnibus Rule?  Join Kim C. Stanger of Holland & Hart's Health Law Group in this recorded webinar. 

https://hollandhartevents.webex.com/hollandhartevents/lsr.php?AT=pb&SP=EC&rID=6311067&rKey=f55b55e7eb59d88e

There are significant changes that are reflected in the regulations that will become effective March 26, 2013.  Covered entities and business associates must comply with the new rules by September 23, 2013.  I think you will agree that Kim's presentation is very enlightening.  Enjoy! 

Steven M. Gutierrez