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April 2016: Five Biggest Labor And Employment Law Stories

The world of labor and employment law is always rapidly evolving. In order to make sure that you stay on top of the latest developments, here is a quick review of the five biggest stories from last month that all employers...more

The High Costs of Violating Puerto Rico’s Breastfeeding in the Workplace Law: Supreme Court Decides Right to Privacy Claim

Protections for breastfeeding employees in Puerto Rico just became even stronger. A recent ruling from Puerto Rico’s highest court in Siaca v. Bahía Beach Resort & Golf Club, LLC, held that failing to provide a safe, private,...more

Barbulescu v. Romania clarifies an employers' rights to monitor the contents of their employees' private electronic communications

On January 12, 2016, the European Court of Human Rights ("ECtHR") delivered a judgement in Barbulescu v. Romania regarding the employers' right to access their employees' private communication. Following the judgement, a...more

Five on Monday – Five Recent Developments that We’ve Been Watching Closely

Time for another overview of developments in the field of business and human rights that we’ve been monitoring. This past week’s post includes: Apple’s refusal to comply with a federal court order; a new report...more

Federal Judge Rules Against NSA Telephone Surveillance Program

On Monday, November 9, Judge Richard Leon of the U.S. District Court for the District of Columbia ruled, in Klayman v. Obama, against part of the National Security Agency’s (“NSA”) surveillance program that collects domestic...more

NC General Assembly Overrides Veto of Property Protection Bill

Last week, the North Carolina House and Senate overrode Governor McCrory’s veto of legislation intended to shield employers from video or other data or documents release by employees. H.B. 405, called the “ag-gag” bill by...more

Second Circuit Rules PATRIOT Act Does Not Authorize Government's Bulk Telephone Metadata Collection Program

In yet another reminder of the importance of maintaining the privacy of personal information, the Second Circuit Court of Appeals, in ACLU v. Clapper, issued a unanimous decision striking down the National Security Agency’s...more

Social Media: Strategy and Implementation - Are you protected?

With more companies utilizing social media as a part of doing business, are you protecting yourself and your business from issues that can arise when implementing these strategies? Where do you stand legally when employees...more

BB&K Police Bulletin: California Court of Appeal Clarifies Eleventh Amendment Immunity for State Officials

Court Holds Sheriff Not Subject to Damages Under Section 1983 - Overview: The California Court of Appeal clarified that the Eleventh Amendment immunity does not apply in civil rights actions brought in California...more

Waldman: Stop Immunizing Websites That Allow Harassment

Nov. 18, 2014 (Mimesis Law) -- Ari Waldman, Professor at New York Law School, talks with Lee Pacchia about the recent theft and online dissemination of intimate photos belonging to a number of celebrities such as Jennifer...more

Public employers, you can’t drug test as if you were in the private sector

Karen Voss was offered a newly created position of Solid Waste Coordinator with the City of Key West. The job entailed marketing and planning related to the city’s recycling programs, and “overseeing other tasks within the City’s Solid Waste Utility.”more

Mexico’s online tax surveillance becomes operational

As part of the Tax Reform that became effective on January 1, 2014, the Mexican Congress passed a series of amendments to the Federal Tax Code for the purpose of modernizing and facilitating the compliance and enforcement of tax obligations. Such amendments gave tax authorities tremendous surveillance power over taxpayers, which we believe is contrary to human rights of privacy and legal certainty. As of June 30, 2014, Federal Tax Authorities in Mexico (“SAT”) may communicate with corporate taxpayers electronically by sending emails to a personal inbox kept in SAT’s website called the Tax Inbox (buzón tributario). That seems to be perfectly in line with modern forms of communication. However, when a taxpayer considers that SAT may serve all kinds of notices through the Tax Inbox, including notices of deficiency, initiation of audits, imposition of penalties or any other, some concerns start to arise. Please see full alert below for more information.more

Bill of law on Internet-related matters is voted in Brazil

The so-called “Marco Civil da Internet” (i.e. the Bill of Law 2,126/2011, which establishes a civil rights framework for the Internet) was voted and approved by the Brazilian House of Representatives (Câmara dos Deputados) this week. Now it will be submitted to the Senate (Senado). The rumor is that the Government will press the senators to vote the bill with urgency, preferably before the Global Multistakeholder Conference on the Future of Internet Governance, which will be held in Brazil on April 23 and 24, 2014.more

Top 5 Legal Trends For Hospitality Employers

There is much to be learned from 2013. Below are five legal topics that made headlines last year, and should provide valuable guidance for managing labor and employment law issues in 2014.more

Real ID: Why Does My New York Driver’s License Have Two Expiration Dates?

Driver’s licenses in New York are generally valid for eight years. I just checked mine and see that it was last renewed in 2011 for an eight-year term expiring on my birthday in 2019. The issuance date and expiration date are clearly shown at the bottom of the card. To make it even clearer for the reader, the expiration date is printed boldly in red.more

No Right of Privacy for Bikini-Clad Image on Facebook

The use at a seminar on internet safety of a picture of a 17-year-old bikini-clad student taken from her Facebook page by a school district technology director did not violate the student’s right to privacy under federal law, a Georgia District court ruled. The school district’s director of technology services pulled the student’s image from her Facebook page as part of his presentation at a county-wide community awareness seminar at the student’s high school. He used the photo to demonstrate the permanency of posting to social media sites. The photo, taken while the student was on vacation, showed her in a bikini standing next to a life-size cutout of singer Calvin “Snoop Lion” Broadus. The slide presentation included the student’s full name. The student filed a lawsuit against the director in his official capacity, as well as individually, and against the school district under the Fourth and Fourteenth Amendments as well as under state law. The district court dismissed the claims against him in his official capacity and against the school board. The student argued that she had a reasonable expectation of privacy and that the use of her image violated her expectation when it was used in the presentation. The student’s Facebook privacy setting was for “friends and friends of friends.” The court found that, “[b]y intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends).” By using this setting, “Chaney surrendered any reasonable expectation of privacy when she posted a picture to her Facebook profile, which she chose to share with the broadest audience available to her. Thus, Chaney cannot show that society would be willing to recognize her expectation of privacy as legitimate,” the court wrote. The court also found that the school district “had express policies that appear to prohibit Cearley’s use of Chaney’s photo,” so there is no violation by the district of the Fourteenth Amendment. The court order did not address the claims against Cearley in his individual capacity. Chaney v. Fayette County Public School District et al., N.D. Georgia No. 13 CV 89 TCB, issued September 30, 2013. more

The EEOC’s Latest Investigative Tactic: Trolling for Evidence Through Employee Email Blasts

In an unprecedented move, the United States Equal Employment Opportunity Commission (“EEOC”) recently dispatched 1,330 emails to the work and personal email addresses of current and former employees and managers of Case New Holland, Inc. and CNH America, LLC (collectively, “CNH”), asking if such individuals would assist the EEOC in their “official investigation” of CNH’s “alleged” discriminatory conduct. The June 5, 2013 email blast was targeted at more than 300 current and former members of CNH management, whose responses potentially could be claimed by the EEOC as admissions by the company itself. more

Commentary on the planned work on the act “against the Big Brother” presented by the Minister of Internal Affairs B. Sienkiewicz (Poland, 2013)

In 2013 the Minister of Internal Affairs B. Sienkiewicz announced work on the bill “against the Big Brother”. The announcement of B. Sienkiewicz of the act regulating among others the principles of operation of video surveillance was soon after he took his ministerial position.more

Opinion on the proposed reform of the secret services in Poland - the Bill on the Internal Security Agency's (2013)

In fact, the biggest problem of Polish secret services (including ISA) is their lack of specialization. Despite determining their activities, under the current law, the ISA deals with “everything and nothing”, which means that from the beginning of its existence (before as OSP – Office of State Protection, Polish: UOP – Urzad Ochrony Panstwa) for the following years this secret service did not determine any area of its activities. Changes prepared for 2015 provide for the limitation of the field of interest of ISA, which in this case should be viewed positively. Limitation of the right of inquiry of this service should be judged negatively, however, in this respect this service is not effective anyway.more

Illinois Supreme Court to Decide Constitutional Challenge to Parental Notice of Abortion Act on Thursday

The Illinois Supreme Court has announced that on Thursday morning, it will hand down its decision in Hope Clinic for Women v. Adams. more

No Warrant Necessary to Place GPS Device on Employee's Car

Placing a global positioning system (GPS) tracking device on a state employee’s personal car as part of an investigation does not require a warrant, but using the GPS to track the employee 24 hours a day for a month was unreasonable, a New York appeals court majority found. A concurring opinion would have required a warrant for the search. The New York State Department of Labor used a GPS device as part of an investigation of its Director of Staff. The GPS information showed that the Director’s times of arrival and departure from his office were inconsistent with the number of hours he claimed on his time records to have worked. The department filed 11 charges against him, four of which were based on the GPS reports. He was ultimately fired. A majority of the appellate court found that the department did not need a warrant to place the GPS device on his personal car because “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search.” However, the majority ruled that the search was unreasonable in its scope because it was “excessively intrusive.” The majority wrote that the GPS tracking device “examined much activity with which the State had no legitimate concern—i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity—especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month.” The majority found that in the past when a search exceeds its permissible scope, the use of information discovered during the permissible scope would be allowed. “But we hold that rule to be inapplicable to GPS searches like the present one, in light of the extraordinary capacity of a GPS device to permit ‘[c]onstant, relentless tracking of anything.’ Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as whole must be considered unreasonable.” Although the concurring opinion agreed with the outcome, it would have based the decision on the fact that the state “cannot, without a warrant, place a GPS on a personal, private car to investigate workplace misconduct. “While government employers need to know whether their employees actually worked during the hours for which they were paid, public employees are entitled to at least some expectation of privacy concerning their movements throughout the workday. A search as intrusive as GPS surveillance, which, as this case demonstrates, is highly susceptible to abuse without judicial oversight, requires a warrant,” the concurring opinion stated. “The ramifications of the majority’s decision will extend far beyond this case,” the concurring opinion observed. “All government employees, at all levels, in all three branches of government, may now be subject to electronic surveillance based upon a mere ‘reasonableness’ standard, without any judicial oversight at the inception of the search. Given the majority’s imprimatur of warrantless GPS tracking, less intrusive methods for investigating government employees will almost certainly be replaced with electronic surveillance.” In the Matter of Michael A. Cunningham v. New York State Department of Labor, New York Court of Appeals No. 123, decided June 27, 2013. more

BB&K Police Bulletin: Search Warrants - BB&K Victory Securing Qualified Immunity Controls in Child Molestation Case

Overview: The Ninth Circuit recently refused to suppress evidence of child pornography found on the iPod of an alleged child molester during a search of his home. The court explained that the outcome was controlled by its previous grant of qualified immunity in Dougherty v. City of Covina, a case in which BB&K attorneys defeated civil rights claims brought against the city and police personnel under similar facts.more

Warrantless Searches of Electronic Communication

Recent news about federal executive agencies obtaining information on private citizens without warrants has many Americans concerned about an erosion of civil liberties. Both the Internal Revenue Service (IRS) and the National Security Administration (NSA) have been accused of collecting information about Americans without obtaining warrants. In response, last month, the IRS issued a policy statement clarifying that it would no longer read taxpayer emails without first obtaining warrants. An open question, however, is whether the NSA will take similar steps to protect Americans’ privacy rights in light of recent leaks about its practices.more

Fenwick Employment Brief - May 2013

The NLRB's controversial requirement that employers post notices informing employees of their rights under the National Labor Relations Act (as reported in our January and May 2012 FEBs) has been held unconstitutional by the District of Columbia Court of Appeals in National Association of Manufacturers v. NLRB.more

In Clapper v. Amnesty International, Supreme Court Dismisses Privacy Suit for Lack of Article III Standing: Poses a Clear and Present Danger to Data Breach Class Actions

In 2008, the Foreign Intelligence Surveillance Act (FISA) was amended, broadening the surveillance powers of the federal government with respect to communications outside of the United States. In Clapper v. Amnesty International, a group including journalists, human rights activists, and labor leaders challenged those amendments. Plaintiffs claimed that their work required open communication with persons around the globe, and that the prospect of government surveillance chilled that communication. Plaintiffs also claimed that they had incurred costs to prevent this surveillance, such as the cost to travel abroad to communicate in person with potential surveillance targets.more

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