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Monday, March 25, 2019

Don’t Trust Anyone in IT- Check it Out First

Elizabeth Frankhouser was the Executive Director of the Clearfield County Career & Technical Center. Frankhouser had a personal Dropbox account, which she used sometimes for business and sometimes for pleasure.  What happens on Dropbox stays on Dropbox . . . unless your IT guy hates you and has your password. According to Frankhouser, she never accessed the "personal" material in her Dropbox account from the Career Center and never downloaded it to her work computer. While she was at work and on the Center's systems, she used Dropbox strictly for business.

Shortly after she was hired in 2015, Frankhouser's supervisor allegedly began sexually harassing her. Frankhouser refused his advances and complained to his boss.  He then began making things difficult for Frankhouser at work, as she alleged in her federal court lawsuit.

At some point in 2016 or 2017, Frankhouser's computer started malfunctioning, and the IT administrator removed and replaced her old hard drive. Among other things, Frankhouser had all of her passwords stored on an Excel spreadsheet on her Career Center computer. After changing out her hard drives, the IT administrator allegedly took the old hard drive home and Frankhouser's "password" spreadsheet, allegedly logged into her Dropbox account using her log-in information, and found two "explicit" pictures of Frankhouser's boyfriend and some compromising pictures of Frankhouser at a party. The IT guy allegedly printed hard copies of the pictures and gave them to others at the Center and spread vicious untrue rumors about what else he found on her hard drive. Frankhouser was then terminated by the Center for allegedly having dirty pictures on her Career Center computer. 

Frankhouser then sued for violation of her rights under the Fourth Amendment to the U.S. Constitution (the Career Center is a public-sector employer) and for invasion of privacy under the common law of Pennsylvania. The Career Center and the individual defendants filed a motion to dismiss the "cyber-claims." This week the federal judge allowed some of the claims in the lawsuit, including the "cyber-claims," to go forward. This is what the judge said about the cyber-claims in a nutshell: the Center policy against improper use of Center computers did apply to an employee's private cloud account or material that had never been accessed through the employer's system. Based on the allegations in the lawsuit, Frankhouser absolutely did have a reasonable expectation of privacy with respect to her personal Dropbox material. It was her own private account, it was password-protected, and Frankhouser had never accessed the pictures while on the Career Center system or downloaded them. The fact that she sometimes used Dropbox for work did not mean that she lost the right to keep her personal Dropbox stuff private.

Common Sense Counsel: Employers Don't Overreach. If you have a good internet usage policy, you should have the right to monitor employees' emails in your system, as well as their online activities while on your system. But that doesn't mean you have the right to go "fishing" in employees' private accounts. Make sure you really know the facts before you make an adverse employment decision you'll regret in cyber technologies.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. He thanks Robin Shea for her Constangy Blog Post on the subject. Link to case at www.alabamaatwork.com

Friday, March 8, 2019

Proposed Salary Threshold Overtime Regulations are Here!

On Thursday, the U.S. Department of Labor released its long-awaited proposed regulations on the executive, administrative, and professional exemptions to the overtime rule under the Fair Labor Standards Act. Read the DOL’s official news release here.

Under the proposal, the salary threshold would increase from the current $455 per week to $679 per week ($35,308 per year). The threshold would also be subject to review and possible adjustment through new rulemaking every four years. Under regulations issued by the Obama Administration but blocked by a court, the threshold would have jumped to $913 per week, or $47,476 per year, and tied to costs of living thereafter.
The DOL has stated that proposed regulations would not change the "duties tests." Public comments will be accepted for 60 days after the proposed rule is published in the Federal Register, presumably early next week. The Final Regulation will become effective January 1, 2020

Common Sense Counsel: Constangy, Brooks, Smith & Prophete, LLP, will hold webinars on the new Final Rule and will issue follow-up bulletins as we continue to analyze the Rule. The key decision for Human Resources departments and management is whether to raise the salaries of currently exempt employees to $679 per week ($35,308), or to reclassify those employees to non-exempt status. If you are going to reclassify, you will need to determine the regular rate of pay for these employees in order to determine the proper overtime rate. This will require careful planning and consideration of a number of issues, not the least of which is how many hours of overtime are expected to be worked each week by the involved employee.

The East Alabama Society of Human Resources (EASHRM) will hold a briefing workshop soon.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with Links to regulations on Blog. Send an email to eandrews@constangy.com if you wish to be placed on the free Constangy newsletter and webinar list.