Lawyers Must Advise Employee-Clients About Lack of Email and Text Confidentiality

By Cameron G. Shilling (originally published 5/27/2011)

Courts in New York, California, Florida, Texas, Arizona, New Jersey and Idaho recently ruled that an employee waived his or her right to privacy with respect to attorney-client email communications that took place via an employer-owned email account.  As a result, the American Bar Association (ABA) issued a formal ethics opinion stating that lawyers must warn clients in such circumstances that their communications are not confidential.  The ABA opinion states as follows:

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Social Media and the NLRB (Addendum): More Fuel for the Fire

By Cameron G. Shilling (originally published 10/17/2011)

A new decision has emerged prohibiting companies from adopting and enforcing policies that impact employees’ use of social media.  We recently posted a three part blog discussing the role the National Labor Relations Board (NLRB) has adopted with respect to scrutinizing and invalidating policies that expressly or impliedly apply to employees’ use of social media, and protecting employees from discipline or discharge based on content they post to social media sites.  Before our keyboard had cooled, however, an Administrative Law Judge (ALJ) issued another such decision in Karl Knauz Motors, Inc. d/b/a Knauz BMW.  The Karl Knauz case underscores the points made in our prior blogs, and will serve to further bolster the NLRB’s self-appointed role as protector of social media freedom. Continue reading

Social Media and the NLRB (Part 3): Discipline and Discharge – The Breadth of Concerted Activity

By Cameron G. Shilling (originally published 10/7/2011)

Activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  This includes individual action if the employee “seeks to initiate, induce or prepare for group action” or raises “group complaints to the attention of management.”  In fact, a mere “conversation may constitute concerted activity, even though it involves only a speaker and a listener,” as long as “it had some relation to group action in the interest of employees,” according to National Labor Relations Board (NLRB) in Meyers Industries, Inc.
The nature and breadth of this definition has significance to social media, which frequently involves on-line conversations about work between employees who are social media “friends.” Continue reading

Social Media and the NLRB (Part 2): Employment Policies – The Chilling of Concerted Activity

By Cameron G. Shilling (originally published 10/5/2011)

The “mere maintenance” of a policy or practice that tends to chill employees’ exercise of their right to engage in concerted activity violates the National Labor Relations Act (Act), according to the National Labor Relations Board (NLRB) in Lafayette Park Hotel.  Thus, if the policy or practice “explicitly restricts activities protected” by the Act, it is unlawful.  In addition, as the NLRB found in Lutheran Heritage, even if the policy or practice does not do so, it still is unlawful if any one of the following is true:

  1. Employees would reasonably construe the policy or practice to restrict or prohibit concerted activity.
  2. The policy or practice was promulgated in response to union activity.
  3. The policy or practice is applied to restrict protected concerted activity.

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Social Media and the NLRB (Part 1): The NLRB Intervenes in Social Media

By Cameron G. Shilling (originally published 10/3/2011)

New and exciting developments are a hallmark of the social media revolution.  The least expected of these developments, however, is that social media would be regulated by the National Labor Relations Board (NLRB).  Over the past few years, the NLRB has reviewed more than 130 social media cases, filed numerous complaints against businesses, issued several decisions, and published a report summarizing its position.  Is the NLRB’s activity justified and helpful, or an unwarranted hindrance?  The courts have not resolved that issue yet.  Until then, businesses should beware not to unwittingly stumble into these legal problems. Continue reading

HHS Issues Proposed Rule Governing Clinical Laboratories

By Cameron G. Shilling (originally published 9/26/2011)

The United States Department of Health and Human Services issued a proposed rule that expands the rights of patients to access test results directly from clinical labs covered by HIPAA.  The rule would amend the regulations under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) to require that, upon a patient’s request, the lab must provide access to completed test reports concerning the patient.  The proposed rule was published on September 14, 2011, and has a 60 day comment period.

Disney Subsidiary Will Pay $3 Million for Violating Children’s Online Privacy

By Cameron G. Shilling (originally published 5/19/2011)

A Disney subsidiary, Playdom, Inc., has agreed to pay a $3 million penalty to settle a Federal Trade Commission (FTC) charge that it violated the FTC’s Children’s Online Privacy Protection Act (COPPA) Rule by collecting and disclosing personal information from hundreds of thousands of children under age 13 without their parents’ prior consent.

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