Law Commons^™

Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Employment Privacy Law For The 1990'S, Kurt H. Decker

Pepperdine Law Review

No abstract provided.

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melissa C. Loomis

Articles in Law Reviews & Other Academic Journals

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than …

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

The Inalienable Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …

Implementación De Políticas Corporativas Sobre Internet Y Redes Sociales En México, Rodolfo C. Rivas Rea Esq.

Rodolfo C. Rivas

The author analyzes and describes the necessary elements of a successful social media and Internet corporate policy; through citing common pitfalls and learning lessons from different jurisdictions across the world. The author then offers general guidelines on policies for Mexican enterprises under Mexican legislation.///////////////////////////////////////////////////////////////////////////////////////El autor analiza y describe los elementos necesarios de una política corporativa sobre internet y redes sociales exitosa, citando los errores más comunes y aprendiendo lecciones de las legislaciones de distintos países.

The Benefit Of Adopting Comprehensive Standards Of Monitoring Employee Technology Use In The Workplace, Karin M. Mika

Law Faculty Articles and Essays

This article will examine issues as they relate to the privacy of employees’ lives given that nearly everything can be discovered by some form of electronic monitoring. It will posit that most laws as they exist today do little to apprise either the employer or the employee as to what type of electronic monitoring of personal communications is acceptable. It will further propose that most employer policies related to scrutinizing employee electronic communications are vague and unsuitable. The article will conclude that, given the leeway employers tend to be given (often justifiably so) in monitoring employees there is little chance …

Electronic Privacy And Employee Speech, Pauline T. Kim

Chicago-Kent Law Review

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees' privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments—weak protection of employee privacy and increased protection for …

Gina, Privacy, And Antisubordination, Bradley A. Areheart

Georgia Law Review

This Essay briefly considers both the current and
optimal role of privacy in employment discrimination
jurisprudence. The recently-passed Genetic Information
Nondiscrimination Act (GINA) is illustrative of a possible
trend in employment discrimination toward privacy. In
particular, GINA includes a prohibition on the use of
genetic information in all employment decisions, affording
a measure of genetic privacy to potential and current
employees.
GINA stands in contrast to prior employment
discrimination statutes, which have often encouraged or
required employers to be knowledgeable of and consider a
particular identity trait through policies such as
reasonable accommodation, affirmative action, and the
disparate impact doctrine. …

The Need To Prevent Employers From Accessing Private Social Network Profiles, Brett Novick

University of Michigan Journal of Law Reform Caveat

In March 2012, social network privacy became a conversation topic after news reports of the story of Justin Bassett, a job applicant who withdrew his application in the middle of an interview when the interviewer asked him for the username and password of his private Facebook account. Although the issue has received much attention from the public and media, the Department of Justice (DOJ) has stated that it has no interest in prosecuting employers for asking for social networking account information. Fortunately, legislation that would make it illegal for employers to ask for the username and passwords for social networking …

Montgomery County V. Shropshire: Trying To Shoehorn Police Intradepartmental Disciplinary Files Into The Wrong Cabinet, Wayne Heavener

Maryland Law Review

No abstract provided.

Privacy In The Workplace: Are Collective Bargaining Agreements A Place To Start Formulating More Uniform Standards?, Karin Mika

Law Faculty Articles and Essays

This paper discusses ambiguities related to laws in employee privacy and posits that this is problematic for both employers and employees. The article discusses how private employers have almost no restrictions when it comes to employee monitoring, especially when there is an announced (albeit vague) policy. The article then suggests that unions have at least some negotiating power in terms of setting standards for when an employee may be disciplined and thus, labor unions have at least a modicum of power in negotiating clear rules regarding employee monitoring. The paper further suggests that clear policies aren't a bad thing, and …

The Privacy Bailout: State Government Involvement In The Privacy Arena, Corey A. Ciocchetti

Corey A Ciocchetti

In the midst of massive government involvement in the financial, real estate and automotive sectors, other important problems linger without sufficient governmental attention. This article focuses on one area where federal intervention has been particularly absent - the realm of individual privacy in the Information Age. The problem is that monitoring in the United States is increasingly powerful and takes many forms. Online, prominent Web sites collect, store and disseminate a great deal of personally identifying information (PII) without clearly and simply informing users. This is the case even though such notice is cheap and can be effective. Offline, technology …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

Intrusive Monitoring: Employee Privacy Expectations Are Reasonable In Europe, Destroyed In The United States, Lothar Determann, Robert Sprague

Robert Sprague

This Article examines the contrasting policy and legal frameworks relating to data privacy in the United States and the European Union, with a particular focus on workplace privacy and intrusive surveillance technologies and practices. It examines the U.S. perspective on modern work-related employer monitoring practices, the laws giving rise to possible employee privacy rights, and specific types of employer monitoring that may lead to actionable invasions of employee privacy rights. This article then addresses the issue of employee privacy from the EU perspective, beginning with an overview of the formation of authority to protect individual privacy rights, followed by an …

Invasion Of The Social Networks: Blurring The Line Between Personal Life And The Employment Relationship, Robert Sprague

Robert Sprague

Over one-half billion people worldwide have registered accounts with Facebook, the most popular online social network. This article addresses some of the more significant employment-related legal issues arising from the growing popularity of online social networks. First, the need for employers to investigate the background of prospective employees is examined from the context of employers using online social networks to conduct those investigations. In particular, this article analyzes the degree to which job applicants have privacy rights in the information they post online. This article then examines the interrelationship between online social networks and employees, focusing on limitations faced by …

The Eavesdropping Employer: A Twenty-First Century Framework For Employee Monitoring, Corey A. Ciocchetti

Corey A Ciocchetti

The twenty-first century continues to usher in new and increasingly-powerful technology. This technology is both a blessing and a curse in the employment arena. Sophisticated monitoring software and hardware allow businesses to conduct basic business transactions, avoid liability, conduct investigations and, ultimately, achieve success in a competitive global environment. Employees can also benefit when monitoring provides immediate feedback, keeps the workforce efficient and focused and discourages unethical/illegal behavior. The same technology, however, allows employers to monitor every detail of their employees’ actions, communications and whereabouts both inside and outside the workplace. As more and more employers conduct some form of …

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public …

Electronic Surveillance In The Global Workplace: Laws, Ethics, Research And Practice, Roland Kidwell, Robert Sprague

Robert Sprague

This paper considers the legal, ethical and cultural factors that must be addressed in evaluating the appropriateness of employing electronic surveillance (ES) in varying international contexts. It critically evaluates the rationale that underlies the use of ES in a variety of settings and types of organisations. It suggests guidelines for the adoption and use of ES and potential directions for future research.

The Newest Way To Screen Job Applicants: A Social Networker's Nightmare, Carly Brandenburg

Federal Communications Law Journal

Social networking is an easy way to share information with friends, family, and the company that just offered you an interview. Employers are utilizing all of the tools available to them as they strive to hire the right people, and this means that social networkers may need to self censor in order to protect their information from falling into the wrong hands. This Note questions whether social networkers can legally expect or enjoy any right to privacy with respect to their online postings.

The Fair Use Doctrine And Trackjacking: Beautiful Animal Or Destroyer Of Worlds?, S. Wayne Clemons, Jr.

Vanderbilt Journal of Entertainment & Technology Law

"Trackjacking" is the unauthorized replacement of the original soundtrack of an audiovisual recording, such as a movie or television show, with another that is designed to alter substantially the plot and/or characters of the original work. While trackjacking is a creative and entertaining form of art, it may also constitute copyright infringement if the original work is one that is copyrighted. However, if certain criteria are met, the "fair use" doctrine provides a mechanism for courts to excuse what otherwise would be considered copyright infringement. Because the unique nature of trackjacking allows the new work to be distributed in such …

Six Clicks Of Separation: The Legal Ramifications Of Employers Using Social Networking Sites To Research Applicants, Ian Byrnside

Vanderbilt Journal of Entertainment & Technology Law

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, college students and other job applicants voluntarily divulge an increasing amount of personal information on them, often unaware of the potential negative effects it may have on their search for employment. Employers are beginning to take note of this trend and are increasingly using applicants' social networking profiles to supplement traditional application information. Many applicants feel that employers should not base employment decisions on social networking profiles in any way and believe that it is illegal for employers to do so. Yet, it appears that employers that …

Rethinking Information Privacy In An Age Of Online Transparency, Robert Sprague

Robert Sprague

No abstract provided.

Fired For Blogging: Are There Legal Protections For Employees Who Blog?, Robert Sprague

Robert Sprague

No abstract provided.

Googling Job Applicants: Incorporating Personal Information Into Hiring Decisions, Robert Sprague

Robert Sprague

No abstract provided.

From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, Robert Sprague

Robert Sprague

No abstract provided.

No Direction Home: Will The Law Keep Pace With Human Tracking Technology To Protect Individual Privacy And Stop Geoslavery, William A. Herbert

Publications and Research

Increasingly, public and private employers are utilizing human tracking devices to monitor employee movement and conduct. Due to the propensity of American labor law to give greater weight toemployer property interests over most employee privacy expectations, there are currently few limitations on the use of human tracking in employment. The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase “geoslavery” to describe the abusive use of such technology underscores its power. This article examines the use of such …

Workplace Blogs And Workers' Privacy, Rafael Gely, Leonard Bierman

Faculty Publications

In this article we focus on a related issue. We discuss the development of blogs, and the virtual “space” where blogs and bloggers interact the “blogosphere” and their impact on the issue of workers' privacy. To some extent it would seem a bit of a contradiction to talk about privacy and blogging in the same article. Blogging, as we will discuss below, does not appear to be the most private of enterprises. There are, we argue, a number of interesting privacy issues raised by the development of blogs as an employee communication tool and by the way employers have reacted …