That Bum Facebook Friend of Yours? Could Cost You a Loan ...
Posted
3:15 PM
by Michael Fox
At least that's the headline, Creditworthy? Lenders delve into your social networks. The actual story is more about the possibility than the actuality of it happening. However, knowing that there is a business devoted to perusing social media to prepare "social graphs of your likes, dislikes, strengths and weaknesses" does give one pause.
Rapleaf's web site, the company discussed in the article, emphasizes that it is a marketing company, which is what the article really says about it, notwithstanding the headline.
And of course before an employer could utilize a "social graph of your likes, dislikes, strengths and weaknesses," at least if prepared by a third party, they would do well to check on the requirements of the Fair Credit Reporting Act.
In particular they need to remember that using a consumer report for any employment decision must be preceded by obtaining permission in a very specific way and then following up with very specific notice procedures.
And that a "social graph" seems pretty likely to fit within the definition of a a consumer report which is defined as:
any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under section 604 [§ 1681b].
Labels: privacy
9th Cir. Corrects 4th Amendment Mistake, But Employer's Right to Monitor Computer Survives
Labels: privacy
What Is It About Art Teachers? Part II
Labels: privacy
Smoker's Suit Hits a Nerve
I am a non-smoker who is very grateful for the societal changes that reduce my exposure to second-hand smoke. But even I found it pretty disturbing that an employer would think it right to control employees' private behavior. It leads to all sorts of disturbing scenarios that have been raised as testing for various diseases and genetic pre-disposition for disease became possible. A hat tip to Jon Coppelman at The Worker's Comp Insider for his post, Where There's Smoke, You're Fired, Revisited. Labels: privacy
A Border Problem of Different Sorts for Employers
One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal." Labels: privacy
Posted
1:45 PM
by Michael Fox
Rarely do I venture into the criminal law domain, but sometimes there is an overlap between criminal and employment law. Contents of a company owned computer — when those contents involve child pornography — is a good example.
In August, the 9th Circuit faced with such a case held that an employee of a private sector company had no 4th Amendment expectation of privacy so that a warrantless search of his company owned computer was not unreasonable and the results of the search could be used against him in a criminal proceeding. U.S. v. Ziegler (9th Cir. 8/8/06) [pdf] . That resulted in considerable consternation for 4th Amendment scholars such as Orin Kerr at the Volokh Conspiracy, whose post, Ninth Circuit Mostly Eliminates Private-Sector Workplace Privacy Rights in Computers points out what the 9th Circuit had done in their opinion, and goes on to show why it was wrong.
From an employer's viewpoint, the decision was fine because it did nothing to support an argument that an employee had a privacy right that might bar such a search by an employer. However, the effort to get the court to change its mind which was soon undertaken, raised the possibility that if it did so, the court might say something that would resurrect that fear.
But, if you were worried, you didn't have to be, as yesterday the 9th Circuit panel withdrew its original decision, replacing it with this one. It corrected the 4th amendment problem, at least to Orin Kerr's satisfaction, New Ninth Circuit Decision in Ziegler, doesn't hurt the employer's position and as an added bonus for those who didn't want to see a child pornographer off the hook, reached the same result — there was a valid search that allowed the contents found on the computer to be used in the criminal prosecution.
The difference? Instead of finding that the employee had no reasonable expectation of privacy as against a search by the police, the court found that the employer had the power to search, and thus to consent to the search, which it did.
A nice ending for all, except of course Ziegler.
Posted
1:13 PM
by Michael Fox
This past summer the biggest news in Austin seemed to be about the nude photo's of an Austin art teacher. See, What Happens When the Art Teacher Is the Model? That case was resolved, but the art scene has shifted to Richmond, Virginia where another art teacher's website has gotten him into trouble. It also has led to what may arguably be the biggest groan of a headline of the year, the AP's Teacher in Crack Over Butt Art.
It seems that Stephen Murmer, a popular art teacher in the Chesterfield County Schools, is also an artist, selling his paintings for up to $900. But like Tamara Hoover, it was a website that got him to trouble. More specifically it was his video demonstrating his particular painting technique — "plastering his posterior and genitals with paint and pressing them against canvas" — which did him under.
Although leading to all sorts of bad puns, "cheeky creations" etc. it does raise a serious question about an employer's right to discipline for an employee's legal, if somewhat unusual, off-work behavior. The ACLU is looking at the case for Murmer.
This is not new ground for Murmer as a description of his technique and how it came to be appeared here in a May 2, 1999 post on the blog Stare. Although none of the art shows up for me, you can attempt to check out his paintings here.
Hat tip to Howard Bashman's How Appealing post.
Posted
4:54 PM
by Michael Fox
When you think of The Scott's Company you probably think about issues with your lawn (assuming that you think of them at all). But this winter, they are in the news for an employment matter. As with a few other companies, Scott's has adopted not just no smoking, but a no smoker policy.
Which led to the following, as summed up in the lead in a Boston Herald story:A Buzzards Bay man peed into a cup and lost his job when the Scott Co. discovered he’d been inhaling more than the chemicals he sprayed on lawns - he was allegedly smoking cigarettes - according to a lawsuit he filed.
You might not be surprised to know that the employee has filed suit alleging violations of his privacy rights, but what is a unusual is the response it has caused. One web site, Do No Evil , already has more than 200 posts — although mixed, most comments were along these lines:Our freedom is being chipped away at, little by little, always in the name of a perceived good. Allowing this to go on will at some point in time transform us to semi zombies at the beck and call of the righteous ones. Everything we do will become sanctioned for the "good of all". Free will, free expression, free movement, free thought will cease to exist as we know it today. Is this really the road we wish to travel on ???
Out of the Jungle did some great work in coming up with additional sources on the whole issue, and offered this point of view:
Posted
1:13 PM
by Michael Fox
An article with the phrase "employers have a new worry" naturally catches my eye,which is why I picked up the the TP! wire service link to today's NYT story, At U.S. Borders, Laptops Have No Right to Privacy.
The concern - all that confidential information contained on your employees' laptop as they cross borders may well be subject to search and review based merely on the desire of immigration officials -- no reasonable cause for a search required.
At least one group, Association of Corporate Travel Executives, is taking it up with the government to at least get some understanding of what the policies are. How big an issue, well purely anecdotal, but:
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