1 www.jacksonlewis.com D uring a talk at the University of California Hastings College of Law, P. David Lopez, General Counsel for the U.S. Equal Employment Opportunity Commission, declared that family responsibilities discrimination is a litigation priority for the EEOC under the Obama Administration. What is Family Responsibilities Discrimination? Family responsibilities discrimination is disparate treatment of caregivers and may include sex-based disparate treatment, gender stereotyping, hostile work environment, and retaliation. Such discrimi- nation may occur when an employee suffers an adverse action based on an employer’s opinion about how workers with certain family caregiving respon- sibilities can or should act. For example, it would constitute discrimination if an employer were to assume a female regional manager would miss more work than her male counterpart because she recently had a baby. She is given a smaller, less lucrative territory to manage upon her return to work. Another example is an employee whose hours are reduced because his elderly father has moved in with him, and the employer wants to ensure there will be sufficient coverage in the event the employee misses work. What Types of Claims are Involve? While there is no federal law that prohibits discrim- ination based on family responsibilities, some states and municipalities have laws prohibiting discrimi- nation based on categories such as “parenthood,” “family responsibilities,” and “familial status.” In addition, lawsuits have been filed under Title VII or analogous state laws and common law, such as wrongful termination, retaliation, and intentional infliction of emotional distress. Claims on the Rise A 2010 study by The Center for WorkLife Law at the University of California Hastings College of Law reported that the number of family responsibilities discrimination cases filed has increased approximate- ly 400 percent over the previous decade. With the record number of women in the workplace, stiff competition for jobs and the unstable economy, this number is expected to rise. How Can Employers Prevent Claims? There are many ways employers can minimize the risk of family responsibilities discrimination claims, including: • Consider including “family status” or “caregiver responsibilities” in the company’s EEO statement or non-discrimination policy. • Train managers and supervisors to recognize biases and stereotypes that could lead to family responsi- bilities discrimination claims and provide concrete examples of prohibited conduct. • Review promotion guidelines to ensure employees in protected categories are not being overlooked for advancement due to unlawful stereotypes. • Examine standards for merit increases and bonuses to ensure they reflect employees’ job performance, not unreasonable expectations or personal biases. • Consider flexible work arrangements, part-time work, telecommuting and job sharing options. • Promote a culture that acknowledges and respects employees’ personal and family obligations. For further information regarding preventing family responsibilities discrimination in the workplace, please contact Angela M. Duerden, [email protected], Susan McKenna, [email protected], or the Jackson Lewis attorney with whom you usually work. INSIDE THIS ISSUE: University Discloses Data Breach Affecting More Than 30,000 Individuals Employer’s Right to Monitor Employee E-mails is Limited Jackson Lewis News 2 4 ABULLETIN ON EMPLOYMENT ,LABOR,BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP Spring 2012 All We Do Is WorkSM Family Responsibilities Discrimination a Priority for EEOC; Private Suits Continue to Rise "The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience." Rule 4-7.3, Rules Regulating the Florida Bar. ADVERTISEMENT
Transcript
1www.jacksonlewis.com
During a talk at the University of CaliforniaHastings College of Law, P. David Lopez,
General Counsel for the U.S. Equal EmploymentOpportunity Commission, declared that familyresponsibilities discrimination is a litigation priorityfor the EEOC under the Obama Administration.
What is Family ResponsibilitiesDiscrimination?Family responsibilities discrimination is disparatetreatment of caregivers and may include sex-baseddisparate treatment, gender stereotyping, hostilework environment, and retaliation. Such discrimi-nation may occur when an employee suffers anadverse action based on an employer’s opinion abouthow workers with certain family caregiving respon-sibilities can or should act. For example, it wouldconstitute discrimination if an employer were toassume a female regional manager would miss morework than her male counterpart because she recentlyhad a baby. She is given a smaller, less lucrative territory to manage upon her return to work.Another example is an employee whose hours arereduced because his elderly father has moved in with him, and the employer wants to ensure therewill be sufficient coverage in the event the employeemisses work.
What Types of Claims are Involve?While there is no federal law that prohibits discrim-ination based on family responsibilities, some statesand municipalities have laws prohibiting discrimi-nation based on categories such as “parenthood,”“family responsibilities,” and “familial status.” Inaddition, lawsuits have been filed under Title VII or
analogous state laws and common law, such aswrongful termination, retaliation, and intentionalinfliction of emotional distress.
Claims on the RiseA 2010 study by The Center for WorkLife Law atthe University of California Hastings College of Lawreported that the number of family responsibilitiesdiscrimination cases filed has increased approximate-ly 400 percent over the previous decade. With therecord number of women in the workplace, stiffcompetition for jobs and the unstable economy, thisnumber is expected to rise.
How Can Employers Prevent Claims?There are many ways employers can minimize therisk of family responsibilities discrimination claims,including:
• Consider including “family status” or “caregiverresponsibilities” in the company’s EEO statementor non-discrimination policy.
• Train managers and supervisors to recognize biasesand stereotypes that could lead to family responsi-bilities discrimination claims and provide concreteexamples of prohibited conduct.
• Review promotion guidelines to ensure employeesin protected categories are not being overlookedfor advancement due to unlawful stereotypes.
• Examine standards for merit increases and bonusesto ensure they reflect employees’ job performance,not unreasonable expectations or personal biases.
• Consider flexible work arrangements, part-timework, telecommuting and job sharing options.
• Promote a culture that acknowledges and respectsemployees’ personal and family obligations.
For further information regarding preventing family responsibilities discrimination in the workplace, please contact Angela M. Duerden,[email protected], Susan McKenna,[email protected], or the Jackson Lewis attorney with whom you usually work.
INSIDE THIS ISSUE:
University Discloses DataBreach Affecting More Than30,000 Individuals
Employer’s Right to MonitorEmployee E-mails is Limited
Jackson Lewis News
2
4
A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP
Spring 2012
All We Do Is WorkSM
Family ResponsibilitiesDiscrimination aPriority for EEOC;Private Suits Continueto Rise
"The hiring of a lawyer is animportant decision that should not be based solely upon advertisements.
Before you decide, ask us to send you free written informationabout our qualifications and experience." Rule 4-7.3, RulesRegulating the Florida Bar.
ADVERTISEMENT
Most employers monitor their employees’ use of Internet and e-mail on the employer’s
computer systems. Through disclaimers and policiesin the employee handbook, employers warn theiremployees that they have no expectation of privacywhen using the company’s equipment. Such warn-ings previously had been sufficient to allow employ-ers blanket monitoring rights of virtually everykeystroke made on a company-issued device.
Due to a server management error, more than30,000 University of Tampa (UT) faculty,
students, and employees were put at potential riskof identity theft when data files containing UTidentification numbers, Social Security numbers,names, dates of birth, and photos were publiclyaccessible, including in the form of a cache file onGoogle, the Internet search engine. A UT statement(http://www.ut.edu/databreach/) revealed that threedata files accidentally were made accessible to thepublic—one included the 6,818 records of Fall2011 students and the other two contained person-ally identifiable information concerning 29,540 faculty, staff, and students.
UT reports that the three temporary files containingthe information were created to help resolve an issuewith UT identification cards when the Universityinstalled a new server in July 2011. The Fall 2011file subsequently was inadvertently indexed byGoogle. The data breach was discovered on March13, 2012, during an in-class exercise regardingadvanced search techniques. University IT personnelthen secured the files and deleted them from searchcaches. UT said it did not discover any evidence offraud or malicious access.
While the facts are still unclear, including why thepublic access went undetected for almost a year, thedisclosure triggered Florida’s breach notificationlaws. Fla. Stat. §817.5681 provides, “Any person
who conducts business in this state and maintainscomputerized data in a system that includes person-al information shall provide notice of any breach ofthe security of the system, following a determina-tion of the breach, to any resident of this state whoseunencrypted personal information was, or is reason-ably believed to have been, acquired by an unautho-rized person.”
Breach notification mandates exist in almost everystate. Most employers are at risk of data breach andthe costs associated with responding to a breach,should one occur. Companies should consider takingsteps in response to these mandates, includingimplementing written information security pro-grams that contain privacy and security policies.These policies should include data breach detectionand response procedures and mandate training forall employees, not just those in IT. Other thingscompanies can do include continually assessing risks(e.g., examining the information it has, the nature of that information, how it moves through theorganization to or from vendors, and the company’scurrent safeguards), determine the best methods of protecting sensitive information they possess, and create a culture of data security and privacythroughout their organizations. This can be accom-plished only when data security and privacy aremade a priority through clear policies with frequenttraining and attention.
For assistance with data breach protection issues,please contact the Jackson Lewis attorney withwhom you regularly work, Joseph Lazzarotti, [email protected], or Lillian Chaves Moon,[email protected].
Increased Internet privacy concerns, however, havecourts across the country weighing in on the extentto which employers can monitor employee e-mails.Following are a few examples.
In Global Policy Partners, LLC et al. v. Yessin, 2009U.S. Dist. LEXIS 112472 (D. Va. Nov. 24, 2009),based upon an interpretation of Florida law, a courtruled that one partner has limited authority toaccess another partner’s e-mails. The court foundthat even assuming Florida law authorized managersto access e-mail information stored on a company’ssystem, it is limited to carrying out the company’sbusiness.
In Stengart v. Loving Care Agency, Inc., 990 A.2d 650(N.J. 2010), the New Jersey Supreme Court heldthe attorney-client privilege applied to e-mails sent
Lillian Chaves Moon is Of Counsel inthe Orlando, Florida office of JacksonLewis LLP. Ms. Moon earned aBachelor of Arts degree in 1995 andher Juris Doctor degree in 2000 fromBrigham Young University in Provo,Utah. The majority of her practice isdevoted to employment litigation,defending employers in federal andstate courts, as well as before theEEOC and other administrative agen-cies. She also provides clients withday-to-day advice and counselingregarding employer policies and vari-ous workplace law issues as theyarise. In addition, prior to practicingin Florida, Ms. Moon served as anappellate attorney for the UnitedStates Department of Labor inWashington, D.C., representing theSecretary of Labor in federal appel-late courts in cases brought pursuantto the Occupational Safety andHealth Act. Ms. Moon is a memberof the Florida Bar, and the U.S.Supreme Court Bar.
This update is provided for informa-tional purposes only. It is not intendedas legal advice nor does it create anattorney/client relationship betweenJackson Lewis LLP and any readers orrecipients. Readers should consultcounsel of their own choosing to dis-cuss how these matters relate to theirindividual circumstances. Reproductionin whole or in part is prohibited with-out the express written consent ofJackson Lewis LLP.
This update may be considered attor-ney advertising in some states.Furthermore, prior results do notguarantee a similar outcome.
Jackson Lewis LLP represents man-agement exclusively in workplace lawand related litigation. Our attorneysare available to assist employers intheir compliance efforts and to repre-sent employers in matters beforestate and federal courts and adminis-trative agencies. For more informa-tion, please contact the attorney(s)listed or the Jackson Lewis attorneywith whom you regularly work.
University DisclosesData Breach AffectingMore Than 30,000Individuals
Employer’s Right toMonitor Employee E-mails is Limited
by an employee to her attorney on a company laptopusing her personal, password-protected Yahoo!account. It found the employer’s counsel had violat-ed the employee’s privacy rights and the rules ofprofessional conduct when they read the employee’se-mails, which were automatically saved on the laptop hard drive through the employer’s browsersoftware.
In Pure Power Boot Camp Inc. v. Warrior Fitness BootCamp LLC, 759 F.Supp.2d 417 (S.D.N.Y. 2010), acourt awarded $4,000 to former employees as dam-ages for a violation of the Stored CommunicationsAct when it found the employer had accessed theirpersonal e-mail accounts after the termination oftheir employment. The dispute arose when twoemployees left to start their own fitness facility. Theemployer commenced a non-compete action afterlearning through 546 e-mails it had accessed over anine-day period from its former employees’ accountsthat they had taken its customer lists, training andinstruction materials, and had solicited its cus-tomers. It was able to access these accounts becausethe former employees stored their usernames andpasswords on its computers. The court ruled thataccessing the former employees’ personal e-mailaccounts violated the SCA.
In Holmes v. Petrovich Development Co., LLC, 191Cal.App.4th 1047 (Cal. App. 3d Dist. 2011), aCalifornia appeals court held that an employee didnot have an expectation of privacy in e-mails shesent to her attorney from her company account. The court reasoned that, considering her employer’spolicies warning that the company monitored com-puter use and e-mail was only for work and not personal business, communicating with her attorneyusing her work account was “akin to consulting her attorney in one of [the employer’s] conferencerooms, in a loud voice, with the door open, yetunreasonably expecting that the conversation over-heard by [the employer] would be privileged.” Thekey to the court’s reasoning was that the employeeused a company account rather than a personalInternet account to send the e-mails.
A case pending before the District Court inWashington D.C. may add another wrinkle to thisarea. Six Food and Drug Administration doctors andscientists recently filed suit, Hardy et al. v. Shruen etal., alleging the FDA began monitoring their per-sonal Gmail and Yahoo! accounts in 2009 after theyalleged to Congress that the agency had approvedcertain screening and medical devices against theirwarnings about safety or effectiveness. The FDAprovides its employees all the usual warnings aboutthe privacy of data transmitted or otherwise storedon its system. The FDA asserted that it monitoredemployee personal e-mail accounts to investigateallegations that they had leaked confidential infor-
mation to the public. Certainly, the case will turnon the purpose for which the FDA was accessing theaccounts and whether employees had a reasonableexpectation of privacy in their personal e-mailaccounts, which they accessed through the FDA’scomputer system.
Employers Beware: A Florida court has yet torule on this issue, but the cases discussed above andthe continued evolution of the jurisprudence onemployee privacy has implications for Floridaemployers. While an employer generally has theright to review stored e-mails on its system, it musthave a legitimate business purpose for such review,not a nefarious reason, such as trying to gain anunfair advantage in litigation with the employee byreading attorney-client communications. Considerperiodically reviewing and revising, where necessary,policies and procedures for accessing employee e-mails to ensure that employees adequately andclearly are warned that they have no expectation ofprivacy when accessing or using any account whileon the employer’s system and that the individualswho access lawfully stored e-mails not only have theappropriate status within the company, but also aredoing so for legitimate business purposes.
For additional information, please contact the Jackson Lewis attorney with whom you regularly work or Lillian Chaves Moon,[email protected].
MIAMI OFFICEOne Biscayne TowerTwo South Biscayne BoulevardSuite 3500Miami, FL 33131305-577-7600
ORLANDO OFFICE390 North Orange AvenueSuite 1285Orlando, FL 32801407-246-8440
Offices Continue ExpandingWe are pleased to welcome the following newAssociates to the Jackson Lewis family: Colin A.Thakkar, in Jacksonville, Diane Perez andMendy Halberstam, in Miami, and MatthewKlein, in Orlando.
Mr. Thakkar represents and counsels small and largebusinesses on all aspects of employment-relatedissues. He has represented employers in federal andstate disputes and litigation involving allegations of discrimination, wage and hour claims, ERISAclaims, non-compete, non-solicitation, non-disclo-sure agreements and various employment-relatedcommon law claims. Mr. Thakkar also advisesemployers regarding traditional labor law issues,including labor arbitrations, unfair labor practicecharges, and the interpretation of collective bargain-ing agreements. Mr. Thakkar is active within theJacksonville community, serving as a member of the Society for Human Resource Management, theIndo-U.S. Chamber of Commerce of NortheastFlorida, the Denison University North FloridaAlumni Association, and the Ronald McDonaldHouse Discovery Circle. Mr. Thakkar earned hisJ.D. from the College of William and Mary’sMarshall-Wythe School of Law.
Ms. Perez represents management in a wide varietyof labor and employment matters. Among othersservices, she defends employers against employmentdiscrimination, sexual harassment, retaliation,whistleblower, and wage and hour claims underboth federal and state laws. She also advises man-agement on all types of labor and employment matters, including issues relating to non-competeagreements, reductions in force, employee hiring,disciplining and firing, and union avoidance. Ms. Perez also trains managers and supervisors on important employment law issues. She is amember of the Cuban American Bar Association(CABA), where she serves as Editor-in-Chief forCABA’s quarterly publication, CABA Briefs. Ms.Perez earned her J.D., magna cum laude, from the University of Miami, where she served as anAssociate Editor of the University of MiamiInternational and Comparative Law Review.
Mr. Halberstam has experience in both state andfederal civil rights litigation matters. He has repre-sented various municipalities and police officers indefending complex civil rights lawsuits and has litigated numerous cases in federal court arisingunder the Fair Housing Act and the ADA. Mr.Halberstam has experience representing parties
before the EEOC, and he has handled cases involv-ing claims of race, age, disability and sex discrimi-nation, as well as sexual harassment, retaliatory discharge, wage and hour, and non-compete/restric-tive covenant issues. Mr. Halberstam earned hisJ.D., cum laude, from the Florida InternationalUniversity College of Law, where he ranked fourthin his graduating class and served as a CommentsEditor of the Law Review.
Mr. Klein focuses on employment litigation andrepresents and counsels employers on employmentlaw matters under a variety of laws, including TitleVII, the ADA, and whistleblower statutes. He hasrepresented employers in federal and state court, aswell as before the EEOC and other administrativeagencies. He is active within the Central Floridacommunity, serving as a 2012 Orange CountyCharter Review Commissioner, Treasurer of theOrange County Young Republicans, as a member of the Orange County Republican ExecutiveCommittee, a member of the American Israel Public Affairs Committee, and as a board memberof the Jewish Young Professionals of GreaterOrlando. Mr. Klein earned his J.D., cum laude, fromthe University of Florida.
On the MoveThe Jacksonville office of Jackson Lewis has moved to:
Everbank Plaza501 Riverside Ave., Suite 902Jacksonville, FL 32202(904) 638-2655
Hope to see you at the new office!
Jackson Lewis News
Mail regarding your subscription should be sent to
