Virtual Hawaii Employment Lawyer

According to a survey conducted by Liberty Mutual’s Responsibility Project, 56% of Americans think it’s “irresponsible” to friend your boss on Facebook, while 62% of bosses agree it’s wrong to friend an employee.

Reuters reports on other interesting results from the survey, including that 73% think it’s not OK to check Facebook at work, but 66% say checking personal e-mail is fine. Tweeting while at work is considered irresponsible for 72% of respondents, and watching online videos is wrong for 79%.

View article here:Facebook Friends

Recent changes enacted as part of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and its implementing regulations require Covered Entities and their Business Associates to implement Security Breach Notification procedures and may require revisions to existing Business Associate Agreements (“BAAs”). HITECH was passed as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). The new requirements became effective September 23, 2009, following the publication of the Department of Health and Human Services (“DHHS”) Security Breach Notification Interim Final Rule (the Interim Rule) in August of 2009. Their enforcement begins on February 23, 2010.

HITECH requires Covered Entities to report to the affected patient, and in some cases to the Centers for Medicare and Medicaid Services(CMS) and/or the local media, any breach to the security of “unsecure” protected health information (“PHI”) held in electronic form. The law applies to Business Associates and BAAs are required to incorporate specific provisions of the law. Accordingly, all Covered Entities and Business Associates should review their BAAs and policies/procedures to ensure compliance with HITECH.

Effective Jan. 1, Big Island motorists are prohibited from using hand-held cell phones while driving.  The new law also bans the use of other electronic devices such as laptop computers and video games but permits the use of hands-free devices.  Violators can be penalized up to $150, with fines increasing up to $500 if use of the electronic device causes an accident.  See Big Island Cell Phone Ban.

The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager.  The Supreme Court has given public employers wide latitude to search their employees’ offices and files.  But it has also said that the Fourth Amendment, which forbids unreasonable government searches, has a role to play in any analysis of that latitude.  It will now address a case involving the Ontario Police Department, which had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.”  It did not directly address text messages. 

Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month.  Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.  The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated.  Judge Kim McLane Wardlaw, writing for a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy.  Read the article here:  Supreme Court Case to Shape Electronic Privacy Issues.

More employees are using their own laptop computers at work, a trend that employers should approach with considerable caution, observers warn.  Concerns about establishing boundaries between personal and company information, protecting company networks against viruses and malware that may infect workers’ computers, and retrieving vital company data when the employee leaves the firm are just a few issues with which employers must contend, observers say.  Read article here: Employee-Owned Laptops Present Risks.

“Recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically.” View article here: Electronic Privacy and Email.

During an investigation into a harassment claim involving allegations of harassment by text message, can an employer access employees’ text messages outside of a discovery request without violating their expectations of privacy?  View an article on this issue here:  Text Harassment Investigations.

On August 24, 2009, the Department of Health and Human Services (“HHS”) issued its interim final rule with regard to breach notification requirements for unsecured protected health information.  Under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, which is part of the American Recovery and Reinvestment Act of 2009 (“ARRA”).  HHS was required to issue interim final regulations regarding notification provisions in the event of a breach of unsecured protected health information.  Covered entities and their business associates (service providers to covered entities) only have 30 days after publication (or until September 23, 2009) to comply with these new rules. Read more…

In a decision dated June 16, 2009, the 9^th Circuit Court of Appeals held that a Washington state teacher’s blog attacking co-workers, the union and the school district was not constitutionally protected speech, and therefore ruled that her demotion in connection with the publication of the blog’s contents was not unlawful.

Specifically, the plaintiff teacher, Tara Richerson maintained a blog that the Court found contained “several highly personal and vituperative comments,” to wit:

Save us White Boy!  I met with the new me today: the person who will take my summer work and make it a full-time            year-round position. I was on the interview committee for this job and this guy was my third choice … and a reluctant one at that. I truly hope that I have to eat my words about this guy…. But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him … He comes  across as a smug know-it-all creep. And that’s probably the nicest way I can describe him…. He has a reputation of crapping on secretaries and not being able to finish tasks on his own…. And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community…. Mighty White Boy looks like he’s going to crash and burn.

As a result of that and several other similar posts, her employer, the Central Kitsap School District, demoted Richerson from a “curriculum specialist” and “instructional coach” to a classroom teacher.  The demotion led to Richerson filing suit under 42 U.S.C. § 1983 alleging that the Human Resources manager violated her constitutional right to free speech.  The Court affirmed the dismissal of Richerson’s suit. 

Specifically, the Court noted that Richerson’s former position required her to enter into trusting relationships with less experienced teachers and to mentor.  The Court noted that undisputed evidence demonstrated that the employer received several complaints regarding Richerson’s blog and at least one employee who Richerson was assigned to mentor refused to work with her.  The Court also noted that even though Richerson did not specifically identify employees they could be discerned through the circumstances described by Richerson and by process of elimination.

Based on precedent that directed the Court to consider whether the speech affected relations with co-workers, compromised loyalty and confidences, or interfered with the performance of the plaintiff’s duties, the Court concluded that:  “Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog” . . . [T]he district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson’s First Amendment interests.”

Impact of Decision:  While the issue of internet speech by employees and to what extent it is constitutionally protected generally applies to public employers, private sector employer/employees should take note of the Richerson decision.  Regardless of the private/public employer distinction in the law disciplining an employee for blogging on “highly personal” issues of the workplace will depend on the extent specific information and identities in the workplace are revealed.

Generally a company has the right to protect its confidential and proprietary information during or after termination of employment.  Termination for revealing on-line information such as product development/pricing, sales figures, marketing goals/margins, customer preferences, reports, personnel issues, the workplace “scuttlebutt” and business strategies will very likely not be found unlawful in public and private workplaces alike.

OK.   I must admit feeling somewhat better about my “upgrade” from the Blackberry Pearl to the Storm after reading this article:  Apple Admits Overheating Issues.

According to the article: “Apple has issued a warning on its support pages regarding iPhone 3G and iPhone 3GS overheating, marking the first time the company has officially acknowledged the problem.  Reports that the iPhone 3GS is having overheating problems have surfaced last week, merely days after the devices was launched.”

Had I not dropped my Pearl in the toilet last week, accidentally of course,  I would have been perfectly content to wait out the six months before Verizon had me bite on the “discount with two-year contract extension” deal.  Instead, after begging and receiving from Verizon a partial discount, the last two weeks have been spent actively engaging the Storm to find whatever hidden or underrated benefits it might offer that would rival the industry standard–the iPhone.  Alas, could the Storm have a brighter future?  Will any (more?) killer apps come out?  Will the heavier weight actually translate into a longer life?  Will upgrades be made to address stability and keyboard error issues, which might convince me to buy the $70 “Documents to Go” software app?  Will the Storm eventually render netbooks obsolete?  We’ll see.

Honolulu’s ban on drivers using cell phones and other electronic devices goes into effect July 1, 2009. The new law prohibits the use of cell phones without a hands-free device while operating a motor vehicle. It also prohibits text messaging, the use of laptop computers, e-mailing and electronic game-playing while driving. Violators will be subject to fines of $15 to $100. Read more…