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The Employment Lawyer Blog by John F. Buckley IV

Federal, State Legislation Banning Employer Requests for Social Media Information

Posted by John Buckley on Tue, Jul 26, 2016 @ 15:07 PM

John F. Buckley IV

     The proposed federal Password Protection Act of 2015 (H.R. 2277), introduced on May 12, 2015, would bar employers from requiring or requesting employees or job applicants to provide password information for their social media and email accounts as a condition of employment. The Act was introduced in order to curb this growing practice, and it was drafted in consultation with major technology companies and legal experts, its proponents stated.  A similar measure (H.R. 2077/S. 1426) was introduced but failed in the 113th Congress, which concluded on December 31, 2014.

     A similar bill, the Social Networking Online Protection Act (SNOPA) (H.R. 5107), has been introduced this year.  SNOPA would prohibit employers from requiring or requesting a username, password, or other access to online content, and it would extend this prohibition to colleges, universities, and K-12 schools. In addition, the bill would prohibit employers from demanding such access in order to discipline, discriminate, or deny employment to individuals, and from punishing individuals for refusing to volunteer such information. This measure was originally introduced in the 113th Congress as H.R. 537, but, like the proposed Password Protection Act, it died in committee.

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Topics: employment law, John Buckley, prohibition against employer request, social media information

CIVIL RIGHTS: Pregnancy Discrimination Under PDA—Supreme Court's Interpretation of Same-Treatment Clause in Young v. United Parcel Service, Inc.

Posted by John F. Buckley IV on Tue, Feb 23, 2016 @ 16:02 PM

The Lawletter Vol. 41, No. 2

John Buckley, Senior Attorney, National Legal Research Group

     Title VII of the Civil Rights Act of 1964 was amended by the Pregnancy Discrimination Act ("PDA") in 1978, which added the following language to Title VII's definitions subsection:

     The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes[.]

42 U.S.C. § 2000e(k). It is generally agreed that the first clause specifies that Title VII's prohibition against sex discrimination also applies to discrimination based on "pregnancy, childbirth, or related medical conditions." The meaning of the second clause, "or related medical conditions," has been the subject of debate and was directly addressed by the Supreme Court in this most recent case.

     In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the petitioner, Peggy Young, was a part-time driver for the respondent, United Parcel Service ("UPS"). Young became pregnant in 2006 and was placed on a 20-pound lifting restriction by her doctor. (UPS policy required drivers to be able to lift parcels weighing up to 70 pounds.) UPS failed to provide suitable accommodations, and as a result, Young was forced to take an unpaid leave of absence during most of the time she was pregnant, resulting in the loss of her employee medical coverage.

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Topics: John Buckley, disparate treatment, civil rights, related medical conditions, pregnancy discrimination

EEOC Announces Recent Charge Filing Statistics and Settlements

Posted by John Buckley on Thu, Feb 12, 2015 @ 12:02 PM

John F. Buckley IV, Senior Attorney, National Legal Research Group

    The Equal Employment Opportunity Commission (EEOC) has just reported that in fiscal year (FY) 2014 (Oct. 1, 2013 through Sept. 30, 2014) it received a total of 88,778 private sector discrimination charge filings. Although lower than the record high of 99,947 charges filed in FY 2011, the agency attributed the decrease in part to the government shutdown that took place during the reporting period. EEOC Press Release, Feb. 4, 2015. When charges filed with state fair employment agencies are factored in, there has been a significant increase in discrimination charges filed against employers.

    For the fifth year in a row, allegations of retaliation under all statutes (37,955) outnumbered those of race discrimination (31,073), which until FY 2010 had been the most frequently filed charge since the EEOC became operational in 1965. Following retaliation and race, sex (26,027) and disability discrimination (25,369) were the most frequently filed charges.

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Topics: discrimination, retaliation, statistics, EEOC

EMPLOYMENT LAW: Keeping Employment Policies Apace with Developments in Same-Sex Marriage and Gender Identity Discrimination

Posted by John Buckley on Mon, Dec 29, 2014 @ 14:12 PM

The Lawletter Vol 39 No 10

John Buckley, Senior Attorney, National Legal Research Group

     A periodic review of employment policies for changes in the law is always prudent. In light of the rapidity of recent developments, however, including marriage rights of same-sex couples and prohibitions against discrimination based on sexual orientation and gender identity, counsel for employers face an unprecedented challenge keeping workplace policies compliant in a changing legal landscape.

     Same-sex marriage rights. Recent legislative and judicial developments related to same-sex marriage rights impact workplace rights involving benefits, leave time, and related issues. An employee's same-sex spouse may be entitled to coverage under employer-provided health insurance plans and have rights as the alternate payee, beneficiary, and/or survivor in employee pensions and other retirement benefits. Upon divorce, an employee's spouse may recover an interest in the portion of the employee's pension or other retirement benefit that accrued during the marriage. Upon an employee's death, the surviving spouse may be entitled to receive any wages due the employee. Similarly, under federal and many state laws, an employee is entitled to paid or unpaid leave time to care for a spouse with a serious medical condition or a spouse who is a military servicemember or veteran. Thus, it is essential for employment policies to reflect the current legal definition of "spouse" under federal law and in the employer's particular state(s) of operation.

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Topics: employment law, employment policies, review for currentness

Supreme Court Holds 2012 Recess Appointments to NLRB Invalid

Posted by Gale Burns on Tue, Aug 12, 2014 @ 12:08 PM

The Lawletter Vol 39 No 6

John Buckley, Senior Attorney, National Legal Research Group

     On June 26, 2014, the Supreme Court held that the President lacked authority under the Constitution to fill three of the five seats on the National Labor Relations Board ("NLRB" or "Board") through "recess appointments" made on January 4, 2012, during a three-day break between two pro forma sessions of the Senate. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)
(Breyer, J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ.; Scalia, J., concurring in the judgment, joined by Roberts, C.J., and Thomas and Alito, JJ.). The case turned on the precise definition of the term "recess" within the meaning of the Constitution's Recess Appointments Clause ("Clause"). Although the Court acknowledged that the term includes both inter- and intrasession recesses and can apply to vacancies that occur before a recess commences, the January 2012 appointments were nevertheless invalid. The Court explained that the three-day period was too short to constitute a "recess" within the meaning of the Clause, and the pro forma sessions could not be construed a

s recesses, thereby lengthening the period.  Because of the unconstitutionality of the appointment of the three Board members, the NLRB lacked a quorum when it rendered its decision in the case on appeal.

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Topics: legal research, John Buckley, NLRB, constitutional law, Recess Appointments Clause, NLRB v. Canning, no presidential authority, includes intersession and intrasession recesses

EMPLOYMENT DISCRIMINATION: Religious Harassment in Workplace—Cautionary Tale for Employers

Posted by Gale Burns on Thu, Apr 10, 2014 @ 12:04 PM

The Lawletter Vol 39 No 2

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Topics: legal research, John Buckley, The Lawletter Vol 39 No 2, employment, workplace, religious harassment, employer liability, 7th Cir., May v. Chrysler Group, less severe incidents in continuous pattern, hostile work environment, discrimination

EMPLOYMENT LAW: Employment Non-Discrimination Act ("ENDA")

Posted by Gale Burns on Mon, Dec 30, 2013 @ 15:12 PM

The Lawletter Vol 38 No 10

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Topics: legal research, employment law, John Buckley, nondiscrimination, ENDA, S. 815, sexual orientation, gender identity, antidiscrimination protections extended to same-se

The American Taxpayer Relief Act of 2012

Posted by John Buckley on Tue, May 21, 2013 @ 10:05 AM

 John Buckley, Senior Attorney, National Legal Research Group

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Topics: legal research, employment law, John Buckley, The Lawletter Vol 37 No 11, American Taxpayer Relief Act of 2012, extended some Bush-era tax cuts, SS withholding increased, increased credit for employer-provided child-care, education assistance, and transit/carpool benefits, extension of federally funded unemployment compens

EMPLOYMENT LAW UPDATE: Supreme Court Upholds ACA—What Employers Must Do Now

Posted by Noel King on Wed, Jul 18, 2012 @ 17:07 PM

July 19, 2012

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Topics: legal research, employment law, John Buckley, Commerce Clause, individual mandate, Supreme Court, ACA, health insurance coverage, Medicaid expansion, penalty, SBC, Sebelius

EMPLOYMENT LAW UPDATE: Legislation Banning Employer Requests for Social Media Information

Posted by Gale Burns on Wed, Jun 13, 2012 @ 12:06 PM

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Topics: legal research, employment law, John Buckley, Michigan, employer requiring usernames and passwords, Maryland first state to prohibit this practice, similar legislation pending in California, Illinois, Minnesota, federal legislation introduced, Password Protection Act of 2012, Social Networking Online Protection Act ("SNO

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