Archive for March, 2012


According to yesterday’s online version of — ready for this — Computerworld (Yes, I actually found a website called Computerworld yesterday, even though I can barely make my e-mail work),   U.S. Senators Richard Blumenthal and Charles E. Schumer posted an open letter on Monday to the EEOC and the DOL. What, you might ask, are Senators Blumenthal and Schumer upset about?  Seems a growing number of employers are asking, well not really asking so much as demanding, that applicants provide their personal passwords to social media sites like Facebook and Google + as part of the interview process.

According to Computerworld, Senator Schumer said:

“Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law. I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

You can read the entire article here:

So does it violate federal or, for that matter, state law to ask for passwords?  You can make a pretty good argument that it does. Under Michigan law, for example, it is illegal to ask questions that either directly or indirectly elicit information about membership in a protected category.

Facebook posts and “walls” tend to have a bunch of stuff that leads to information about protected categories, like how many kids you have, if you are married or what clubs you belong to. You can’t ask those questions, so the argument goes, so you can’t ask for my password to a site that has that information on it. That, I’m pretty sure, is what the EEOC will say to the Senators.

So, indirectly at least, you can make the argument that asking for the passwords may lead to information employers are not entitled to have. But that is not the only reason why employers are . . . how should we put this . . .  ill advised to demand these passwords.

The real reason is twofold:

First, what information (that is not illegal for an employer to have) do you really think you are going to find on Facebook? Are you going to find stuff that is actually related to a candidate’s ability to do his or her job? Does it really matter that Candidate A has a picture of herself with a beer in her hand? Does that mean that she can’t be a good computer programmer?  I don’t think so. I mean, who of us hasn’t . . .  Well, let’s not go there.

But second, and more importantly, asking for the password to a site like Facebook might lead to reenacting scenes from Platoon with Charlie Sheen.

I know you’re thinking I’ve lost my mind. I haven’t, I’m using an illustration. You have all seen the commercials: You start out being unhappy with your cable TV and end up having Charlie Sheen shooting at you with a crossbow from behind the ficus. I’m going to borrow that logic to show how really uncalled for it is for employers to demand passwords to private sites that are not likely to lead to useful information anyway:

When employers do ill-advised things, the press finds out and writes inflammatory stories.

When the press writes inflammatory stories, the public becomes outraged.

When the public becomes outraged, Senators become outraged.

When Senators become outraged, they write to the EEOC and hold hearings.

And when Senators write to the EEOC and hold hearings, they write overly broad laws that limit what employers can do.

Don’t let Senators write overly broad laws that limit what employers can do!

Don’t believe this can happen here? Sure it can. There are at least 70 bills pending in the current Congress that deal with online privacy or security in one way or another, from the Senate’s USA PATRIOT Act Improvements Act of 2011 to the House’s Do Not Track Me Online Act.  Most of these bills would have just faded away.  Not now.  Senators are pounding their fists on tables in outrage.

And if one of these bills does get passed and signed by the President, you can bet that it won’t just limit an employer’s right to ask for passwords. It may do things like prohibit monitoring of work computers. Or it may go even further.  So, don’t let Senators write overly broad laws that limit what employers can do.  Don’t ask for things you don’t need anyway.

Two out of Three is Bad: Judge Says Poster Goes Up.

Update 03/07/12:  The National Association of Manufactures and the National Federation of Independent Businesses have announced they intend to appeal Judge Berman Jackson’s decision. 

On Friday, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, ruled that the National Labor Relations Board does have the authority to make a rule requiring employers to post a notice outlining employee rights under the National Labor Relations Act.  You can read more about the poster here and here.  Judge Berman Jackson had two basic questions in front of her:  1) Does the Board have the rulemaking authority to require private employers to post the poster; and 2) Does the Board have the rulemaking authority to set the penalties that it set for failure to post the poster?  Yes I know, the title of this post says “two out of three.” What’s the third?  Well, a couple of the plaintiffs filed a motion seeking to have the court decide if President Obama’s recess appointments to the NLRB valid?    The Judge did not deal with that question in her memorandum order, but separately ruled that the poster rule was promulgated by a quorum of Board members who were undisputedly authorized to make rules well before the recess appointments were made.

Judge Berman held:

 The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the posting provision.  But it also holds that the provisions of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA are invalid as a matter of law.

 Finally, Judge Berman held that the invalidity of the enforcement mechanism in Subpart B of the rule did not invalidate the entire rule and that the posting requirement is severable and valid.

So, all in all, this is a win for the Board and the unions.  In fact, according to The Wall Street Journal, the General Counsel for the AFL-CIO said “While the judge invalidated two sensible enforcement mechanisms in the rule, her decision affirms that the Board has ample authority to enforce the notice-posting requirement on a case-by-case basis, . . .”  On the other hand, again according to The Wall Street Journal, the president of the National Association of Manufacturers said:  “We believe today’s decision is fundamentally flawed, . . .”  You can see the WSJ article here.

So, if you’re an employer, what does this mean to you?  It means you are going to have to post the NLRB poster by April 30, 2012.  If you want to see it, you can find the poster here.

If you want to discuss what your options are, give me a call.  You can find me here.