The Employment Lawyer Blog by John F. Buckley IV
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
The Lawletter Vol 36 No 7
Maintaining a website has become a matter of business necessity for most professional, commercial, and retail establishments. Despite its undisputed advantages, however, the operation of a website also presents new areas of exposure to liability for its owner or operator. Fifty percent of businesses now report experiencing between one and five cyber risk incidents, and several recent high‑profile cases have significantly increased interest in a new form of insurance: Cyber Liability Insurance. This type of insurance is designed primarily to protect businesses from liability arising from the ownership or operation of a website. Sources of potential liability include infringement, privacy, defamation, reliance, or accessibility.
In addition to these sources of liability, a recent case involving a popular social media website demonstrates that there are other potential sources of liability for operating a website. In late 2011, Match.com settled a lawsuit filed by a victim of sexual assault and agreed to screen its members against state and national sex offender registries. See Doe v. Match.com (Cal. Super. Ct. filed Apr. 13, 2011).
Although the potential for liability is not in dispute, there is some debate about the degree of care a social media site must exercise. Some experts believe that the accessibility of sex offender registries will create a duty on the part of other sites to screen users, while other experts believe that Match.com made a mistake in agreeing to screen users and that the screening itself may give rise to liability. Nevertheless, eHarmony and Zoosk have since indicated that they, too, would be enhancing security for members and screening for sex offenders.
Although this Match.com lawsuit did not establish any legal precedent, it does underscore the trend toward increasing recognition of website liability. On the other hand, it may be the case that Match.com unnecessarily exposed itself to liability for the voluntary screening. Should a sex offender make it through the screening process and cause injury to another user, it could be significantly more difficult for Match.com to argue in a subsequent lawsuit that it does not have a duty to screen for not only sex offenders but other potentially dangerous users as well. Thus, the case has significance beyond the social media context, in that it demonstrates the difficulty website operators face in establishing policies calculated to reduce liability.
January 24, 2012
Topics: legal research, employment law, John Buckley, Legal Arizona Workers Act, sanctions against employers knowingly hiring undoc, E-Verify to check legal status, federal court challenge to Act, U.S. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, federal Immigration Reform and Control Act not pre
December 23, 2011
Topics: employment law, John Buckley, NLRB, legal resesarch, posting of employee rights, mandate, effective Nov. 14, 2011, right to organize a union and bargain collectively, application to employer covered by National Labor, criteria at 29 C.F.R. § 104.204 table, right to bring formal charges against employer for, six-month statute of limitations
June 7, 2011
Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" includes "all aspects of religious observance and practice, . . . unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business." Id. § 2000e(j). Thus, it is unlawful for an employer not to make reasonable accommodations for an employee's religious practices, unless doing so would impose an undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n.1 (1986).
May 6, 2011
If an employee's supervisor performs an act motivated by antimilitary animus and if that act is a proximate cause of an ultimate adverse employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). So the Supreme Court recently held in a case in which a U.S. Army reservist relied on the "cat's paw" theory of liability. Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011). A "cat's paw" case is one in which a plaintiff employee seeks to hold his or her employer liable for the discriminatory animus of a supervisor who did not make the ultimate employment decision but who nonetheless influenced that decision. In applying a tort "proximate cause" analysis to the case, the Court reversed the Seventh Circuit's holding that a court cannot admit evidence of a nondecisionmaking supervisor's animus unless it has first determined whether a reasonable jury could find that the supervisor exerted a "singular influence" over the ultimate decisionmaker.
January 21, 2011
The Lawletter Vol 34 No 3, June 4, 2010
As many employers have discovered too late, unrestricted use of the Internet and e-mail not only has the potential to drain productivity but also may subject an employer to liability for the improper use. These consequences were recently illustrated by employees of the SEC who spent up to eight hours a day surfing the Internet for pornography. Employers can protect themselves from liability, however, by implementing and enforcing a policy outlining the permissible parameters of employee Internet use, or an Internet acceptable-use policy ("IAUP").
The need for a well‑drafted and properly enforced IAUP is illustrated by several recent cases. In one case, Taxel Creative, Inc. v. Kelly, No. 93378, 2010‑Ohio‑263, 2010 WL 323430 (Ct. App. Jan. 28, 2010), the court held that an employee's termination was without just cause, despite the employee's purported violation of the employer's Internet use policy, and that, therefore, the termination did not render the employee ineligible for unemployment benefits. The employee had been terminated for excessive personal use of the Internet, but the employer's policy did not define what level of personal use was permissible, although it indicated that some amount of personal Internet use during business hours was expected. However, in another case, In re Pesant, 63 A.D.3d 1411, 881 N.Y.S.2d 227 (2009), the court held that a claimant was disqualified from receiving unemployment insurance benefits, because his employment had been terminated due to misconduct; the evidence established that the claimant had continued to violate his employer's Internet policy by downloading inappropriate materials to his assigned computer even though he had been previously warned about the consequences of such behavior.