GETTING THE NET TO WORK What is a Social Networking Site December Stay... · Forensic labs GINA Be careful what you ask for ... Lewis and Roca 40 N. Central Avenue Phoenix, AZ 85004

Stay ConnectedKirstin Story – [email protected]

December 2, 2009

©2009 Lewis and Roca LLP

GETTING THE NET TO WORKHow Social Networking Impacts the Workplace

What is a Social Networking Site (SNS)?A web-based service that allows users to:

Construct a public or semi-public profile within a closed system;Create a list of other users with whom they share a connection;View and traverse their own list of connections, as well as those made by others in the system.

boyd, d. m., & Ellison, N. B. (2007). Social network sites: Definition, history, and scholarship. Journal of Computer-Mediated Communication, 13(1), article 11. http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html

Top 20 Social Networking Sites

Facebook.comMyspace.comTwitter.comFlixter.comLinkedin.comTagged.comClassmates.comMyyearbook.comLivejournal.comImeem.com

Reunion.comNing.comBlackplanet.comBebo.comHi5.comYuku.comCafemom.comFriendster.comXanga.com360.yahoo.com

Top Twenty Five Social Networking Sites – February 2009 – Social Media Optimization


December 2, 2009


Broadening Usage of SNS’s

In September The Nielsen Company reported that time spent on social network and blogging sites accounted for 17 percent of all time spent on the Internet in August 2009, nearly triple the percentage of time spent on the sector a year ago.Nearly 65% of respondents in a recent Business.comstudy reported using social media as part of their normal work routine, including reading blogs, visiting business profiles on sites like Facebook or LinkedIn or using Twitter to find information and/or communicate about business-related matters.

Boo!

Legal Tricks and Treats of SNS’s in the Workplace

At-Will Employment

A non-contractual employment relationship is terminable for good cause or no causeExceptions:

Violation of state statuteRetaliation

Refusal to violate state lawReporting a violation of state law


December 2, 2009


The First Amendment

Termination and disciplineGovernment employees: qualified protectionPrivate employees: no protection

Anonymous blogs and postsRight to speak anonymouslyEnhanced protections against compelled disclosure

Libel, defamation, and slanderStatements made on the internet could be interpreted as opinion rather than fact

Privacy

Is there a reasonable expectation of privacy?Email usageInternet usageBlackberry usageConduct outside the workplace

The more open the communication, the less reasonable the expectation of privacyTort of Invasion of Privacy

Trade Secrets

Any formula, pattern, device, or compilation Derives value by not being known or readily ascertainable to competitorsEfforts to maintain secrecyOnce a trade secret is posted on the Internet, it is effectively part of the public domain, impossible to retrieve

Publisher may be liableSubsequent downloaders may not be liable


December 2, 2009


Trademarks, Trade Dress, Etc.

Delta Air Lines Case“Queen of the Sky” blogTermination for inappropriate photographs of employee posted on blog

Photo featured employee in DAL uniformViolation of uniform policy

Infringement: consumer confusion as to the origin, sponsorship, or approval of the usage

Usage occurs with respect to related goods or services

Harassment and Retaliation

Harassment: explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.Retaliation: may include any action that is likely to deter reasonable people from pursuing their rights.Doesn’t have to occur at the worksite or during work hours.

A few suggestions…


December 2, 2009


Written Policies

PrivacyUse of company equipment, email, and networksConfidential, sensitive, trade secret, or personnel informationConduct during (and after*) work hoursUse of company name, logos, affiliation, and uniformsEEO Policies

Document Document Document

Policy Distribution Policy AcknowledgmentPerformance Counseling and Discipline

Screen ShotsPrint-outs

Termination and Separation AgreementsNon-disparagement clauses

Avoid Sticky Situations

DO NOT hack into websites, web pages, or accountsConsider what information you DON’T want to knowSupervisees and co-workers are still supervisees and co-workers outside the workplace


December 2, 2009


Please don’t do this.

That’s all, Folks!

Q&A will follow the presentation on GINA

Stay Connected Christy Hubbard – [email protected]

December 2, 2009

©2009 Lewis and Roca

GINAGINAOur New Best FriendOur New Best Friend

Beyond Genetic TestingBeyond Genetic TestingWhat You Need to KnowWhat You Need to Know

To To Stay CompliantStay Compliant

GINAGINA

Genetic Information NonGenetic Information Non--Discrimination Discrimination Act of 2008Act of 2008

42 U.S.C. 2000ff, et. seq.42 U.S.C. 2000ff, et. seq.Title II prohibits employment discrimination Title II prohibits employment discrimination on the basis of genetic informationon the basis of genetic informationGoals to Goals to

Prohibit discriminationProhibit discriminationEncourage genetic testing and researchEncourage genetic testing and research

GINAGINA

Seems very sciSeems very sci--fi, but itfi, but it’’s more than s more than genetic testing genetic testing ……


December 2, 2009


GINAGINA

Genetic information isGenetic information isGenetic tests of the EmployeeGenetic tests of the EmployeeGenetic tests of the EmployeeGenetic tests of the Employee’’s family s family membersmembers

ManifestationManifestation of a disease or of a disease or disorder disorder in a family memberin a family member

GINAGINASoSo…… Knowing that an employeeKnowing that an employee’’s s mother/sister hasmother/sister has

Cystic FibrosisCystic FibrosisDown SyndromeDown SyndromeHemophiliaHemophiliaSickleSickle--cell diseasecell diseaseAlzheimerAlzheimer’’s diseases diseaseAggressive onset breast cancerAggressive onset breast cancerCongenital heart diseaseCongenital heart diseaseHuntingtonHuntington’’s diseases disease

Means having Protected Genetic Means having Protected Genetic InformationInformation

GINAGINA

Genetic information is NOTGenetic information is NOTA manifested (existing) disease, disorder or A manifested (existing) disease, disorder or condition condition in the employeein the employee

EEEE’’s with manifested diseases may be protected s with manifested diseases may be protected by ADA, FMLA, state lawsby ADA, FMLA, state laws

Information about genderInformation about genderInformation about ageInformation about age


December 2, 2009


GINAGINA

Unlawful toUnlawful toRefuse to hire Refuse to hire DischargeDischargeDiscriminate inDiscriminate in

CompensationCompensationTerms, Conditions or Privileges of EmploymentTerms, Conditions or Privileges of Employment

Limit, segregate or classify in a way that limits Limit, segregate or classify in a way that limits opportunitiesopportunities

Because of genetic information related to Because of genetic information related to the employeethe employee

GINAGINA

Unlawful toUnlawful toRequestRequestRequireRequirePurchasePurchase

Genetic information in relation to Genetic information in relation to an employeean employeeA family member of the employeeA family member of the employee

GINAGINA

Family memberFamily memberDependentDependentRelative of first through fourth degreeRelative of first through fourth degreeGenetic information of a fetus or embryoGenetic information of a fetus or embryo


December 2, 2009


GINAGINA

Unlawful to retaliate forUnlawful to retaliate forOpposing unlawful act or practiceOpposing unlawful act or practiceFiling a chargeFiling a chargeTestifyingTestifyingParticipating in Participating in

InvestigationInvestigationProceeding Proceeding HearingHearing

GINAGINA

ExceptionsExceptionsInadvertent requests Inadvertent requests

““water coolerwater cooler”” conversationsconversationsInformation gathered in relation to FMLA Information gathered in relation to FMLA certificationcertificationAs part of a wellness program where only EE As part of a wellness program where only EE and HCP receive individualized resultsand HCP receive individualized resultsGeneral newspapers, magazines, booksGeneral newspapers, magazines, booksMonitoring of toxic substancesMonitoring of toxic substancesForensic labsForensic labs

GINAGINA

Be careful what you ask for Be careful what you ask for EEOC Draft Guidelines include Water Cooler EEOC Draft Guidelines include Water Cooler exceptionexception

““HowHow’’s your mom doing?s your mom doing?”” not illegal if good faith not illegal if good faith question, information kept confidential and not question, information kept confidential and not used to discriminateused to discriminateBUT BUT …… EEs can still claim this is the source of EEs can still claim this is the source of information used for discriminatory purposeinformation used for discriminatory purpose


December 2, 2009


GINAGINA

Water cooler exceptionWater cooler exceptionUnsolicited emails or volunteered informationUnsolicited emails or volunteered information““How are you doing today?How are you doing today?””““HowHow’’s your son feeling?s your son feeling?””Overhearing information incidentallyOverhearing information incidentally

GINAGINA

Be careful what you ask forBe careful what you ask forPost offer medical examsPost offer medical exams

EEOC considers it a violation of GINA to ask about EEOC considers it a violation of GINA to ask about family medical historyfamily medical historyADA ADA –– can still require a medical exam of all EEcan still require a medical exam of all EE’’s s to whom a particular job is offered to whom a particular job is offered –– but cannot get but cannot get family medical history. Test must focus on EEfamily medical history. Test must focus on EE’’s s CURRENT ability to perform jobCURRENT ability to perform job

Same for Fitness for Duty examsSame for Fitness for Duty examsImportant to ensure your testing facilities are Important to ensure your testing facilities are complyingcomplying

GINAGINA

FMLA and ADA certificationsFMLA and ADA certificationsEEOC: Best practice is to ask HCP not to EEOC: Best practice is to ask HCP not to provide family medical history except where provide family medical history except where EE took leave to care for a family member EE took leave to care for a family member with a serious health conditionwith a serious health condition


December 2, 2009


GINAGINA

Protection of Genetic InformationProtection of Genetic InformationMaintained as a confidential medical recordMaintained as a confidential medical record

Similar to how ADA records are treatedSimilar to how ADA records are treated

Cannot disclose information unlessCannot disclose information unlessEmployee written request Employee written request Court orderCourt orderGovGov’’t officials investigating GINA compliancet officials investigating GINA complianceFMLA complianceFMLA complianceSpecified health agenciesSpecified health agencies

GINAGINA

RemediesRemediesGINA incorporates the remedies of Title VII GINA incorporates the remedies of Title VII protectionsprotections

Compensatory and punitive damagesCompensatory and punitive damagesback pay and front payback pay and front payEmotional pain and sufferingEmotional pain and sufferinghiring, promotion, reinstatement hiring, promotion, reinstatement other actions that will make an individual "whole" other actions that will make an individual "whole" attorneys' fees, expert witness fees, court costsattorneys' fees, expert witness fees, court costs

GINAGINA

Poster requirementPoster requirementEEOC: Must post notices in conspicuous EEOC: Must post notices in conspicuous places describing GINAplaces describing GINA’’S applicable S applicable provisionsprovisions


December 2, 2009


GINAGINA

To Do To Do ……Verify Medical Exam and Fitness for Duty Verify Medical Exam and Fitness for Duty examiners are not taking family medical examiners are not taking family medical historyhistoryTrain supervisors and managers that Train supervisors and managers that knowledge about EEknowledge about EE’’s family diseases can be s family diseases can be protected genetic informationprotected genetic informationEnsure medical records are separate from Ensure medical records are separate from employment recordsemployment recordsPut up appropriate posterPut up appropriate poster

GINAGINA

Questions?Questions?WeWe’’re available 24/7re available 24/7

Christy HubbardChristy HubbardLewis and RocaLewis and Roca40 N. Central Avenue40 N. Central AvenuePhoenix, AZ 85004Phoenix, AZ 85004602602--262262--0211 (O)0211 (O)602602--908908--1618 (C)1618 (C)

Arizona LawArizona Law

Arizona law protects the confidentiality of Arizona law protects the confidentiality of genetic testing resultsgenetic testing results

A.R.S. 12A.R.S. 12--28022802Primarily applies to the health care industryPrimarily applies to the health care industry’’s s handling of genetic tests and informationhandling of genetic tests and information

Documents

GETTING THE NET TO WORK What is a Social Networking Site December Stay... · Forensic labs GINA Be careful what you ask for ... Lewis and Roca 40 N. Central Avenue Phoenix, AZ 85004