Harassment, privacy among concerns; also, big federal laws loom

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NORTH BAY -- In addition to lost productivity, employers can add legal risk to the list of annoyances related to employee use of social networking at work, according to North Bay legal experts who sounded off on trends for 2010.

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Several of the region’s top employment law specialists included the use of Web sites like Facebook and MySpace as among new issues in employment law, along with the possibility of the Employee Free Choice Act, health care reform and H1N1 flu.  Employers should also expect the repeated appearance of litigation hot spots, including disability, leave and wage and hour issues.

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“One area that is really untested ground that I expect to see a lot of in years to come is this issue of ‘sex-ting,’ or sexual harassment via text message or e-mail or social networking,” said Smith Dollar attorney Heather Bussing.

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She said where harassment cases in the past were based primarily on what someone said, electronic documentation is showing up more in related court cases. E-mail, profile or phone transcripts can provide highly traceable and concrete evidence that harassment occurred, and already several major cases using the proof have surfaced.

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“Social media in general is particularly dangerous because often times people ignore or blur the lines between what is professional and personal behavior,” she said.

In addition to the harassment risk,  social networking can also increase susceptibility to discrimination and invasion of privacy claims by current employees, according to O’Brien, Watters & Davis attorney Diane Singleton.

“With job applicants, if the potential employer is checking Facebook and MySpace to see what the applicant is like and using that information in the hiring decision, you could be found as discriminatory,” she said.

The employer faces the same risk if it bases employment decisions on things found on an online profile of a current employee. Ms. Singleton said unless you have a written policy that employees have read and acknowledged, it can become a breach of privacy if they are punished for using the site at work or for what is found on a profile.

“It seems a little backwards. A lot of employers think, ‘It’s my computer and I can look at what’s on it,’ but employees have an expected level of privacy, and if you go in and start looking at search history and so on, you could be liable,” she said.

Dickenson, Peatman & Fogarty employment law specialist Brandon Blevans said he’s getting the most calls about recent and future federal legislative changes.

“Obviously, everyone in the world is talking about the Employee Free Choice Act, health care reform and whether Obama will be able to get something passed,” Mr. Blevans said.

“What I am advising employers do now, particularly in the ag and service industries, is writing employee policies and trainings to make themselves less likely a union would find avenue of entry. Usually it is working with employees to determine what types of things they are dissatisfied with and opening the lines of communication so they feel comfortable approaching management with issues.”

Also, with increasing attention around the H1N1 virus, Mr. Blevans said employers should be ready for the possible return of mandatory sick leave legislation. Bills with this kind of language have failed again and again on the state and federal level, but he said the swine flu panic could provide a “launching pad” for advocates of such legislation.

All the interviewed attorneys agreed that wage and hour issues continue to dominate litigation, but the highest uptick has resulted from disability accommodation and discrimination claims.

California in the last year broadened what qualifies as a protected status, and federal officials are considering comparable policies nationwide. Also commencing next year with implementation of the National Defense Authorization Act, the family of veterans or those in active duty have more conditions that qualify for leave.

“Employers should be increasingly wary in a down economy. There are more desperate workers – laid off, unemployed – that would file a complaint, where in a positive economy they would more likely just move on,” said McMillan & Shureen attorney Valorie Bader.

Of particular significance in California, Carle, Mackie, Power & Ross partner Dawn Ross called policy changes by the U.S. Department of Homeland Security a “watershed event” for businesses that knowingly or unknowingly use undocumented workers.

“Typically what happened if there was a raid, it was the employees that were targeted and penalized, but now the focus is on the employer. If you knowingly hire these people and that is found, it’s not the employee that goes to jail, it will be you,” she said.