On May 19, Governor Dannel P. Malloy signed into law Public Act No. 15-6, titled "An Act Concerning Employee Online Privacy" (the act). The act applies to both employees and job applicants and prohibits employers from: (1) requiring or requesting employees or applicants to provide the employer with a user name, password, or other means to access the employee's or applicant's personal online account (such as e-mail, social media and retail-based Internet websites); (2) requiring or requesting employees or applicants to authenticate or access a personal online account in the presence of the employer's representative; or (3) requiring employees or applicants to invite, or accept an invitation from, the employer to join a group affiliated with any personal online account. The act is effective October 1.
Prohibition on Adverse Action
In addition to banning employers from seeking access to employees' personal online accounts, the act also prohibits employers from (1) discharging, disciplining, discriminating against or otherwise retaliating against an employee who refuses to provide access to a personal online account (subject to certain exceptions discussed below); (2) discharging, disciplining, discriminating against or otherwise retaliating against an employee who files a complaint with a public or private body or court about the employer's request for access or retaliation for refusing such access; or (3) refusing to hire an applicant because the applicant would not provide access to his or her personal online account.
Employer-Related Online Accounts and Company Devices
Online accounts that are not exclusively personal in nature do not fall within the act. Thus, the act permits employers to request or require an employee or applicant to provide access to any account or service that is provided by the employer, or that the employee has access to by virtue of the employee's work relationship with the employer or uses for business purposes. The act also permits employers to request access to any employee's electronic communications device supplied or paid for, in whole or in part, by the employer. The term "electronic communication device" is broadly defined and includes any computer, computer network or cellular telephone.
The act does not transform personal online accounts into complete zones of privacy. Under certain circumstances, employers are permitted to conduct investigations into personal online accounts, with certain limitations.
Employers can conduct an investigation involving an employee's personal online account:
Even under these exceptions, however, an employer cannot require unfettered access to an employee's personal online account. The employer may require the employee to privately access an online personal account and provide the content to the employer, but cannot require disclosure of the user name, password or other means of accessing the personal online account.
If the investigation reveals misconduct, the employer is not without remedy under the act. The act states it is not intended to prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations (including the Securities and Exchange Commission). The act specifically permits an employer to appropriately discipline (which may include termination) an employee or applicant who misappropriates the employer's proprietary information, confidential information, or financial data to or from the employee's or applicant's personal online account.
Enforcement and Remedies
Employees and applicants who believe their employer or potential employer has violated the act may file a complaint with the Connecticut Department of Labor (the CTDOL). The CTDOL must then hold a hearing to investigate the employee's or applicant's complaint and must issue a written decision. If the employer is found to be in violation of the act in that it either requested access to an employee's personal online account or retaliated against an employee for failing to provide access, the CTDOL may grant the employee a wide range of remedies including reinstatement, back pay and any other relief it deems appropriate. The CTDOL may also levy civil penalties of $500 for the first violation and $1,000 for each subsequent violation.
In the case of an applicant, the remedies available are lesser and include civil penalties of up to $25 for first-time violations and $500 for subsequent violations. An employee or applicant who prevails in the hearing is also entitled to reasonable attorneys' fees and costs. Although the act does not permit an employee or applicant to file a lawsuit in court, any party aggrieved by the CTDOL's decision may appeal the decision to the Connecticut Superior Court.
Permissible Employer Policies
Under the act employers may still monitor, review, access or block electronic data (1) stored on an electronic communications device paid for in whole or in part by the employer, or (2) traveling through or stored on an employer's network.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."
Day Pitney Alert
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.