Articles Posted in Employee Privacy

Social media has become the preferred method for many to air their grievances. It’s not surprising Texas employees are increasingly relying on social media when they organize in support of establishing more favorable work conditions. At the same time, many employees have been fired for posting on social media. This has created uncertainty regarding which social media posts are protected and which may be cited as a valid basis for an employee’s termination.

The National Labor Relations Board (NLRB) is a federally created organization that protects employees’ right to organize. Historically, the NLRB was mostly involved in traditional organized labor movements involving employees’ rights to either join or not join a labor union. However, the NLRB’s protections have expanded over time. Most notably, the NLRB’s protections extend to any activity that is both “protected” and “concerted.”

Texas employees have the right to raise issues involving labor conditions on social media. This includes sharing information and openly discussing matters involving pay, benefits, or any other working conditions. To be protected, a social media post must pertain to protected, concerted activity.

In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.

When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.

As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.

Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.

A few of the problematic questions employers routinely ask are:

  • whether an applicant is married, engaged, single, or divorced;
  • whether an applicant has any children and, if so, how old they are;
  • whether an applicant plans on becoming pregnant;
  • what an applicant’s spouse or boyfriend does for a living;
  • whether an applicant attends religious services and, if so, what days; and
  • the origins of an applicant’s last name.

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In today’s society, almost everyone has a cell phone. And while the primary purpose of cell phones used to be to make and receive phone calls, cell phones are now used not just for communication, but also as a form of entertainment and for web browsing. Cell phones are also used to keep schedules and conduct important business. In short, cell phones contain a significant amount of personal information, including passwords, contacts, and private communications. Given the enormous role cell phones have in our lives, it is clear why many are concerned about an employer’s ability to search an employee’s cellphone. It will come as a relief to many that, as a general rule, a Texas employer cannot conduct a search of an employee or their belongings against their will. This includes an employee’s personal cell phone. That being said, if an employee is using a company cell phone, the employer will likely be determined to have a possessory interest in the phone, and as a result the employee will have a greatly diminished expectation of privacy in the contents of the phone.

Of course, an employee is entitled to greater privacy rights when it comes to their personal cell phone. However, that does not prevent an employer from asking an employee if they will consent to a search. If an employee feels pressured by the fact that their supervisor asked to search their phone and the employee agrees, the search will likely be considered a legal one. However, an employer cannot use excessive force or make threats to obtain an employee’s permission to search their cell phone.

A coerced search is uncommon, however, because those employers who foresee the need to search an employee’s cell phone are likely to be proactive in obtaining employees’ consent. Indeed, the Texas Workforce Commission recommends that employers should have a written cell phone policy stating that “the employer reserves the right to physically and digitally search any devices with storage or memory capabilities that they might bring to work.” Absent such a policy, an employer’s search of an employee’s cell phone may constitute an invasion of the employee’s privacy.

Most people on social media assume that their posts, while not necessarily private, are beyond the access of their employers. Indeed, part of what makes social media so valuable is that users are able to express themselves and their beliefs freely and without fear. However, many employees over the last few years have learned the hard way that employers can often find ways to access their posts. But when a Texas employer finds something they don’t like on an employee’s social media account, can the employer actually take action based on the employee’s social media posts?The answer, as is often the case with legal questions of this nature, is “it depends.” As a general matter, Texas is an at-will employment state, meaning that a Texas employer can terminate an employee for any reason at all, so long as it is not an illegal reason. Thus, if an employer does not like something that an employee posted on social media, the employer may be able to fire that employee over it.

Texas employers cannot discriminate, however. And if the post in question was expressing participation in or support of a protected group, the line of what the employer is permitted to do becomes blurry. That is because engaging in discriminatory employment practices regarding protected classes is illegal. In Texas, the classes that are protected by both state and federal anti-discrimination statutes are:

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