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FMG Law Blog Line

Archive for August, 2012

Better Not Ask for an Employee’s Facebook Password in Illinois

Posted on: August 9th, 2012

By: Brad Adler

Reacting to the chorus of critics lamenting the purported trend of employers demanding employees provide them with their social networking passwords, Illinois has now joined Maryland in prohibiting companies from demanding an employee’s social networking passwords as a condition of employment.  The law applies to both small and large employers and is administered by the Illinois Department of Labor.  In the event that employers violate this new law, employees can sue employers in state court.  It should be noted that several other states also are considering similar legislation, so if your organization currently seeks such information from employees as a condition of their employment, you need to stay current on this area of the law in the state where the employee is working.

Finally, there is nothing in this law that prohibits employers from implementing and enforcing electronic monitoring policies when employees are using the employer’s technology resources.  But this new law does remind employers that the language of any such policies have to be well-drafted and enforced in a manner consistent with state (and federal) law.

Employers Beware of Rules Against Employee Discussion of Internal Investigations

Posted on: August 1st, 2012

By: David Cole

On July 30, the NLRB issued a decision in the case of Banner Estrella Medical Center, which highlights the dangers of blanket instructions or policies prohibiting employees from discussing internal investigations.  The company’s human resources manager routinely asked complaining employees not to discuss the matter with their coworkers while the company’s investigation was ongoing.  The company did not have a formal policy, but this instruction was listed among several bullet points on its standard interview form.

The NLRB stated that, in order to justify a prohibition like this, an employer must show that it has a “legitimate business justification” that outweighs employees’ Section 7 rights to engage in concerted activity.  The company argued that the prohibition was justified by its “concern with protecting the integrity of the investigation,” but the NLRB held this was not enough.  Instead, the NLRB said that employees have a right to discuss their workplace complaints, and that before requiring confidentiality the company needed to first determine whether any witnesses actually needed protection, whether any evidence was in danger of being destroyed, or whether testimony was in danger of being fabricated.  The NLRB determined that the company’s “blanket approach” did not meet these requirements and, therefore, violated Section 7 of the NRLA.

This is a good reminder for employers to examine their practices and policies regarding confidentiality of internal investigations.  Before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns.  Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NRLA.

The “Stigma” of Repair – Georgia Supreme Court Requires Consideration Of Diminution In Value For All Property Damage Claims

Posted on: August 1st, 2012

By Seth Kirby

Since 2001, Georgia has required automobile insurers to not only repair the damage that a covered vehicle sustains, but also to compensate the owner for the loss in value that the car suffers as a result of its involvement in an accident.  The logic behind this requirement is that a car that has been in an accident, even if it has been expertly repaired, is worth less than an identical car that has remained accident free.  To make the owner whole, a carrier must pay for the repair and compensate the owner for the loss in value that is generated by the “stigma” of the repair.  Until now, the application of this rule and its logic has been confined to automobile insurance.  The rule has now been dramatically expanded.  In Royal Capital Development LLC, v. Maryland Casualty Company, the Georgia Supreme Court ruled that a diminution in value analysis must be conducted for damage sustained to any type of property to ensure that the property owner is fully compensated for the loss. (more…)

ADA Lawsuits Plaguing Property Owners

Posted on: August 1st, 2012

By Ben Mathis

Title III of the Americans with Disabilities Act (ADA), which covers “public accommodations,” is not widely known to the general public.  Property owners, however, are becoming too familiar with its requirements as they confront an avalanche of lawsuits for non-compliance. (more…)

Using the Common Interest Doctrine to Protect Information from Disclosure

Posted on: August 1st, 2012

By Kamy Molavi

Various methods are used in litigation to limit the disclosure of information and documents to opposing parties.  One is to invoke a privilege.  The most common privileges are the work product doctrine and the attorney-client privilege.  (more…)