Privacy

On April 19, 2022, a new law went into effect in New Jersey that is designed to further protect employee privacy in the workplace. Under the new law, employers cannot utilize tracking or electronic communications devices in any vehicle used by an employee unless they first provide written notice to the employee. There are exceptions to this new law. Significantly, nothing in this law is meant to supersede regulations regarding interstate commerce, including but not limited to the usage of electronic communications devices as mandated by the Federal Motor Carrier Safety Administration, so if such regulations are applicable to your company, these new requirements do not apply. If not, employers need to revisit their policies to ensure that written notice of monitoring is provided to affected employees under the new law and is well-documented.  

The new law applies to employers, their agents, representatives and designees, but excludes public employers and public transportation systems (including chartered or scheduled bus transportation, whether operated by a public or private company). The law specifically defines electronic communications devices as any device that uses electronic signals to create, transmit and receive information, including a computer, telephone, personal digital assistant or other similar devices. Similarly, a tracking device is defined as an electronic or mechanical device that permits the tracking of the movement of a vehicle, person or device.

There are a number of potential remedies available for violations of the law. Penalties for violations of the new law can add up quite quickly, with a $1,000 civil penalty for the first violation and up to $2,500 for each subsequent violation. Failure to comply with these new legal requirements could also be considered a fourth-degree crime, punishable by a fine, imprisonment or both.

If you are an employer who monitors your employees in vehicles through any type of tracking or communication device, and are not exempted under the law, you must immediately provide your employees with written notice of your tracking activities. It is also strongly suggested that you also get individual written receipt acknowledgements from all employees receiving the notice so there is no dispute over whether notice was in fact provided. The time is now to bring your policies into compliance with this new legal requirement.      

As anyone who has read my blog articles know, I get a lot of questions from clients as part of the counseling work that I do, and frequently, I find that clients have the same sorts of questions on a particular topic.  One such question that I get often is whether an employee can surreptitiously tape record conversations between himself or herself and another employee or even a management representative of the employer.  With I-phones and similar technology, it has obviously gotten even easier for such surreptitious taping to happen in the workplace.  It is especially of concern to employers when employees are being called in to interviews as part of company investigations or meetings where employee performance may be addressed. Such concerns become even more heightened when dealing with an employee who the employer knows is a potential lawsuit waiting to happen.  The answer to this question about the legal allowance of such secret taping by employees might very well surprise you.

Believe it or not, such taping might not be illegal, depending upon the state where the taping is occurring.  The laws implicated in such situations are eavesdropping and state wiretapping laws.  These laws place certain restrictions on when such tapings of conversations can occur.  In a place such as New Jersey, tape recording a conversation is fine so long as one person to the conversation consents to the taping, and that one person can be the actual person doing the taping. Moreover, that individual need not even tell the other person that they are being taped for it to be legal under New Jersey law.  Conversely, in a place like Pennsylvania, each person to the conversation must consent to the taping, and any surreptitious taping could result in possible criminal charges against the wrongful taper.

So what should an employer do in a place like New Jersey to combat secret taping of workplace conversations?  For one thing, the company should have an unequivocal workplace policy prohibiting such taping in any areas of the company’s buildings and workplace.  If your company has very sensitive confidential and proprietary information, you could even go so far as to ban all personal communication devices and electronics from the workplace entirely.  For employers who do not wish to go that far, when involved in sensitive meetings or conversations with an employee, make sure that the employee has not brought any type of taping device with him/her before you start your conversation.  Tell them that if they are hiding such a device, or lie about having one on them at the time of the discussion, that discipline will be imposed which could include immediate termination.  That way, before the conversation happens, you the employer can exercise some control over whether such illicit taping happens. Moreover, remind managers to be careful in what they might tell an employee because you never know how that could be later used by an employee against the employer.  As the title to this article says, silence on sensitive topics being discussed with employees is indeed golden.

Being a proactive employer can go far in avoiding unwanted taping of conversations in your workplace.  They happen, and I have defended many cases where such surreptitious tapings have been produced, and countering what was said became a major part of the case defense.  So, the time is now to start taking preventive steps to ensure that the old proverb “silence is golden” continues to thrive in your workplace.

The Facts

James Kennedy was a crew member at the Havertown, Pennsylvania Chipotle restaurant.  On January 28, 2015, Kennedy posted two tweets regarding working conditions of Chipotle employees.  One of the tweets included a news article about hourly employees being required to work on snow days, when other workers were allowed the day off. The tweet was directed to Chris Arnold, communications director for Chipotle, and stated: “Snow day for top performers Chris Arnold?” Kennedy also replied to tweets posted by Chipotle customers by stating “nothing is free, only cheap labor. Crew members make $8.50/hr how much is that steak bowl really?”

Chipotle regional manager, Thomas Clark and general manager, Jennifer Cruz, became aware of Kennedy’s tweets and met with him regarding same. During that meeting, Clark and Cruz provided Kennedy with a copy of Chipotle’s social media policy which contained the following provisions at issue:

• Provision 1: “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential or inaccurate information.”
• Provision 2: “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition or investors.”

Upon reviewing Chipotle’s policy with Kennedy, Clark asked Kennedy to delete his tweets and Kennedy complied with the request.

Thereafter, Kennedy became concerned that Chipotle employees were not receiving their work breaks in accordance with applicable state law. Kennedy drafted a petition for employees to sign, advising management that Chipotle employees had been unlawfully denied breaks. Kennedy solicited signatures in the morning before work commenced. When Cruz was made aware of the petition, Cruz told Kennedy to stop circulating it. Kennedy refused. Cruz then told Kennedy to leave and terminated Kennedy for “insubordination.”

The Union (Pennsylvania Workers Organizing Committee) filed multiple charges against Chipotle on Kennedy’s behalf and a hearing took place before the National Labor Relations Board (“NLRB”).  The complaints alleged that Chipotle violated the National Labor Relations Act (“NLRA”) when it maintained an unlawful social media policy, directed an employee to delete tweets from his Twitter account, prohibited that employee from engaging in protected concerted activity and terminated that employee for protected activity.

Analysis

Section 7 of the NLRA protects employees’ rights to engage in concerted activities for the purpose of mutual aid or protection.  The NLRB reviewed Chipotle’s social media policy and found that the policy provisions referenced in the section above were unlawful under the NLRA.  Specifically, the NLRB found that these two policy provisions were overly broad/ambiguous, in that they may reasonably be read by employees to prohibit lawful Section 7 activity and may serve to chill employees in the exercise of their Section 7 rights.[1]

The NLRB found provision 1 (referenced above) from Chipotle’s social media policy to be unlawful because an employer may not prohibit employee postings that are merely false or misleading. An employer may only prohibit employee postings that have been posted with a malicious motive. The NLRB also found that Chipotle’s prohibition against disclosing confidential information was unlawful because it could easily lead employees to interpret it as restriction their Section 7 rights. Moreover, Chipotle’s policy prohibiting disparaging statements was also overly-broad.

In regards to Kennedy’s specific tweets, the NLRB found that they concerned wages and working conditions, which are matters protected by the NLRA. Chipotle’s request that Kennedy delete the tweets was a violation of the NLRA.  As for Kennedy’s termination, the NLRB held that Chipotle violated the NLRA when it directed Kennedy to stop circulating his petition and that Kennedy’s termination was unlawful because Kennedy was terminated due to his protected conduct (refusal to stop circulating the petition).

What does this mean?

Employers must be careful when drafting social media policies and when disciplining employees based upon those social media policies.  The policy must not be overly-broad or ambiguous to allow the possibility that an employee would interpret the policy as prohibiting concerted activity.  Furthermore, before requesting that an employee discontinue activity on social media, a full analysis of the facts should be undertaken by the employer to make sure that the employer’s actions are lawful under the NLRA.

[1] The NLRB has held that ambiguous rules are to be construed against the employer.

By Laurel B. Peltzman, Esq.

You have just terminated your most problematic and least productive employee. The employee leaves the premises immediately after his termination but then returns a few hours later with a request. He wants to review his personnel file. As an employer that terminated this employee just a few short hours ago, are you required by law to allow the former employee to review his personnel file? It depends.

In the recently decided case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance, No. 2275 C.D. 2014 (Pa. Commw. Ct. Jan. 6, 2016), a Pennsylvania court interpreted a specific provision of the Pennsylvania Personnel Files Act and found that it provides  recently terminated employees with the right to review their personnel files.

In Thomas Jefferson University Hospitals, a week after her termination from employment with Thomas Jefferson University Hospitals (TJUH), Elizabetth Haubrich made a request to inspect her personnel file. TJUH refused to provide her access because Haubrich was no longer employed by TJUH. Haubrich filed a complaint with the Department of Labor and Industry (the “Department”) and the Department directed TJUH to allow Haubrich to review her file. TJUH did not comply and petitioned the Commonwealth Court for review of the Department’s directive.

Under the Pennsylvania Personnel Files Act, “an employer shall, at reasonable times, upon the request of an employee, permit that employee to review his or her own personnel files used to determine his own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” The Act defines an employee as “any person currently employed, laid off with re-employment rights or on leave of absence…” TJUH argued before the Court that Haubrich did not fit the definition of “employee” as provided for in the Act.

The Court began its analysis by reviewing the definition of the word “current” in the dictionary, which is defined as “presently elapsing, occurring in or existing at the present time, or most recent.” The Court ultimately opined that because Haubrich was terminated one week before she made her request to review her file, she qualified as a “presently elapsing employee” or most recent employee, falling within the definition of “current employee” in Act. The Court found that because the Act explicitly allows someone to inspect his/her personnel file to determine the basis for his/her termination from employment, it only makes sense that a recently terminated employee has the right to review his/her file.

In contrast to Pennsylvania, New Jersey does not have any specific laws regarding an employee’s right to review a personnel file. Although there is no specific requirement that employees be allowed to review their personnel file in New Jersey, if an employee makes his/her request in order to prove that the employer has been discriminating against him/her and the employee is found to have been fired for making the request, the employer may be considered to have illegally retaliated against the employee. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) (holding that Plaintiff can pursue a claim of retaliation alleging that she was terminated because she requested to review her personnel file in order to find documents to support her gender discrimination claim).  Another factor that employers must consider is that refusing an employee’s request to review a personnel file may lead to unnecessary and expensive litigation because an employee may feel like the employer is hiding something (potential unlawful activity).  By providing access to employees, the employer can present an impression of transparency making it less likely that an employee will bring suit.

So what does this mean? If you are an employer in Pennsylvania, your actions regarding current and former employees’ requests to review personnel files are specifically governed by law. If a current employee or recently terminated employee requests to review his/her personnel file, you must allow him/her to do so.  If you are an employer in New Jersey, there is no specific law governing an employee or former employee’s access to his/her personnel file, so an employer must analyze each request on an individual basis to determine the best response.