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.

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.

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.