Articles Posted in Privacy

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This week, the U.S. Third Circuit Court of Appeals resurrected a class action lawsuit which alleges that the Southeastern Pennsylvania Transportation Authority (SEPTA) violated the Fair Credit Reporting Act (FCRA) when it refused to hire applicants based on their criminal history reports without first giving the applicants a chance to review the reports.  The FCRA regulates how companies may use consumer reports for a variety of purposes, including hiring.  And the FCRA has a broad definition of the term “consumer report” which includes criminal history reports.  Under the FCRA, employers must provide copies of criminal history reports to applicants and give them notices about their rights under the FCRA before they refuse to hire them based on their criminal history reports.

SEPTA argued that the plaintiffs in this case suffered no actual harm from SEPTA’s violation of the FCRA because the plaintiffs do not dispute the accuracy of the criminal history reports and the crimes they committed disqualified them from employment.  The Third Circuit rejected this argument, in part, because the FCRA not only protects an applicant from suffering harm due to an erroneous consumer report; it also gives him the opportunity “to advocate for [the report] to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”

The trial court had dismissed the case and, as such, this Third Circuit victory breathed new life into the case.  Ossai Miazad, the lead attorney for the plaintiffs, said, “this is a significant victory for our clients, who first challenged SEPTA’s unfair background check hiring policies and practices in 2016.  This ruling is an important affirmation that a defendant like SEPTA cannot block access to the court and cannot avoid scrutiny of their actual employment practices that serve to unfairly deny employment to individuals like our clients who have paid their debt to society.”

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A recent research study has cast doubt on the theory that the unemployment rates of minorities will decrease if employers cannot screen applicants by credit history.  There has been discussion among lawmakers around the country about legislation that would prohibit employers from considering credit history when they hire employees.  Some places have already passed such laws.  A bill has been debated in the Maine legislature in recent years that would place limits on when employers could consider credit history.  The rationales for such legislation are normally (1) minority applicants, particularly African American applicants, tend to have worse credit than white applicants and/or (2) credit history is a poor indicator of how good of an employee an applicant will be and, thus, it does not make sense to let employers access applicants’ private financial information.  However, this recent study, performed by an economist from the Federal Reserve and a professor from Harvard, shows that minority employment rates actually decreased in states that instituted bans on credit history checks.  So, what gives?

To understand these results, one of the researchers who conducted the study explained that “employers have many screening measures to narrow down who they want to hire” and “if you take one away, they’ll put more weight on the others.”  When a law eliminates one screening method, such as credit history, employers put greater emphasis on other screening methods.  Employers use credit history as a proxy for personality traits such as trustworthiness.  Without credit history as a proxy, some employers may just fall back on impressions gleaned from interviews where unconscious bias against minorities can more heavily influence hiring decisions.

Does this mean that legislators should not pass laws that prohibit consideration of credit history in hiring decisions?  Not necessarily.  There is still ample evidence that credit history is a poor indicator of whether an applicant will be a good employee and, thus, it is unnecessary for employers to intrude upon applicants’ private financial information.  With respect to minority employment, this study shows that unless other measures are taken to combat systemic barriers to minority employment, just focusing on the disparities in credit histories will not improve minority employment and, at least according to this study, might make it worse.

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Maine recently enacted a law that will prohibit employers from requiring or coercing applicants or employees to grant an employer access to their personal social media profiles. This means that employers will not be allowed to make applicants or employees, for example, “friend” them on Facebook or require them to provide the passwords to their Facebook profiles.

This law was passed in the wake of more and more employers checking the interent and social media to learn as much as they can about applicants and employees. According to the National Conference of State Legislatures, 21 states have laws similar to this new law because they want to protect workers’ privacy.

Maine’s new social media privacy law has exceptions for when employers need to conduct investigations into employee misconduct. However, if your employer requires or coerces you to let it access your social media profile and one of those exceptions do not apply, the statute will enable you to pursue legal action.

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Back in August 2012, we reported on efforts in other states to pass laws that would prohibit employers from demanding that their employees give them access to the employees’ personal email and social media accounts. This debate has now reached Maine and it has received some news coverage.

Rep. Mike McClellan (R-Raymond) has introduced a bill in the Maine legislature that would, among other things, prohibit employers from demanding access to employees’ and applicants’ personal email and social media accounts, such as Facebook accounts. “From my intent, if it’s your own personal Facebook page, you own it and employer doesn’t have the right to that password,” Rep. McClellan said.

The Maine Chamber of Commerce has opposed the bill citing concerns about it hampering workplace investigations, such as sexual harassment investigations. While they may not say so publicly, many employers likely oppose the bill because they want the ability to monitor employees’ private email and social media accounts so that they can see whether employees are disparaging the employer or its management. Many employers also likely oppose the bill because they want the ability to invade employees’ privacy when they take medical leave or collect workers compensation. They want to see whether an employee is “faking” an injury or a health condition in order to get out of work. One’s opinion about this bill likely will depend on whether he or she thinks privacy interests should outweigh employers’ interests to monitor their employees’ personal activity for these types of purposes.

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Earlier this month, Illinois became the latest state to pass a law that prohibits employers from requiring job applicants and employees to give employers access to their profiles on social networking websites like Facebook. Maryland and Delaware have also passed similar laws. Illinois, Maryland, and Delaware enacted these laws because some employers had begun to ask job applicants for their social networking website usernames and passwords during interviews.

“Employers certainly aren’t allowed to ask for the keys to an employee’s home to nose around there, and I believe that same expectation of personal privacy and personal space should be extended to a social networking account,” said Senate Minority Leader Christine Radogno, who sponsored the legislation in the Illinois state senate.

Employees and applicants have far fewer privacy rights than some people may think. For instance, while Sen. Radogno’s quote above makes sense, it is certainly an open question in Maine and many other states whether a private employer could ever legally require an employee to give him permission to “nose around” his home. Indeed, when employees have to miss work due to a health condition, some employers will conduct surveillance at the employee’s home to determine whether he is actually unable to work–and, with some exceptions, this can be done legally. With respect to internet privacy, Maine does not yet have a law to prohibit employers from asking employees and applicants for access to their social networking sites. As such, you should be particularly careful about what you put on your social network profile if you think your employer or a prospective employer may want to look at it.

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On July 27, 2011, the First Circuit Court of Appeals, which has jurisdiction over most New England states, including Maine, issued a decision in Haggins v. Verizon New England, Inc. This case involves a challenge to Verizon’s use of cell phones with GPS tracking capability to track its field technicians. The company used GPS, in part, because it did not trust that its employees were always where they were supposed to be. The field technicians, who were represented by a union, claimed that Verizon violated their privacy rights when it tracked them with GPS. The First Circuit dismissed the technicians’ lawsuit under a federal law that prohibits these types of lawsuits in certain circumstances when the employees have a collective bargaining agreement with the employer.

Employees, particularly in the private sector, are often surprised to learn that they have very few privacy rights in the workplace. If you believe that your employer has violated your privacy rights, you should contact an experienced employment lawyer to learn more about your rights.

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