Marking a Facebook Post “Private” is No Shield from Disclosure in New York State

By and on March 6, 2018

By now, most litigators are aware of the potential gold mine that an opposing party’s social media account can contain. The trick is getting the other side to give it up. One common tactic for the party trying to prevent disclosure is to claim that certain material is private and therefore protected from discovery. Well, now litigators in New York State can combat this argument, thanks to the state high court’s decision in Forman v. Henkin, 2018 NY Slip Op 01015, 2018 N.Y. Lexis 180 (Feb. 13, 2018), which held that making a Facebook post “private” does not give it any special protection under the liberal principles applicable to the discovery process. The court also provided guidance for how to apply those principles to social media accounts, which can prove very useful for litigators in the future. Click here to read the full article.

Filed under Social Media

“From the Office to Cyberspace: Workplace Violence in the Twenty-First Century” Article Published by DRI

By and on February 21, 2017

Gordon & Rees Partner Diane Krebs and Associate Jamie Haar authored an article, “From the Office to Cyberspace: Workplace Violence in the Twenty-First Century,” published in the January 2017 issue of DRI’s magazine, For The Defense.

In their article, Krebs and Haar, both members of Gordon & Rees’s Employment Practice Group, offer key legal considerations for employers on how to navigate workplace violence and bullying  in today’s social media-heavy world.

The article discusses the many forms of workplace violence and bullying, with a particular focus on workplace cyberbullying, as well as identifies legal implications and an employer’s potential liability. Among other things, the article discusses the privacy concerns implicated by the Stored Communications Act to assist employers in crafting their investigatory procedures.

To read the full article, click here.

Filed under Cyberbullying, Stored Communications Act

New Law to Restrict New York City Employers from Considering Credit History

By and on June 4, 2015

On April 16, 2015, the New York City Council overwhelmingly passed a bill that prohibits employers from using consumer credit history in hiring potential employees. Mayor Bill de Blasio signed the bill into law on May 6, 2015, which means the law goes into effect on September 3, 2015.

The proposed legislation, called the Stop Credit Discrimination in Employment Act (“Act”), will affect companies that consider consumer credit history (whether by credit report or otherwise) in making hiring decisions. It also bans the use of credit history for any employment purpose, not just for hiring. An employer could therefore not base any decision affecting, for example, compensation or the terms or conditions of employment on credit history.

It is important to note that, although this Act uses terms like “consumer credit reports,” it should not be confused with “consumer reports” that many may be familiar with from the federal Fair Credit Reporting Act, which can include all forms of background checks (though, unlike the Act, only if done by a third party). The scope of information covered by the Act is much more limited and truly only covers credit-related information.

The Act does not, however, apply in all circumstances. It contains several exemptions. It does not apply to:

  • employees required to possess security clearance under federal or state law;
  • employees required to be bonded under City, state, or federal law;
  • employees with signatory authority over third-party funds or assets valued at $10,000 or more;
  • employees with a fiduciary responsibility to their employer and authority to enter into agreements valued at $10,000 or more;
  • police officers;
  • employees at the department of investigation in a law enforcement position or who perform an investigative function;
  • certain employees subject to background investigation by the department of investigation;
  • non-clerical employees with access to trade secrets, intelligence information, or national security information; and
  • employees with authority to modify the company’s digital security systems.

Although ten states and the City of Chicago also ban employers from checking the credit history of job applicants, the proposed legislation for New York City is broader. For example, eight of the other jurisdictions exempt financial institutions, which the New York City legislation does not do.

The Act does not specify penalties or damages for using credit history in making an employment decision. Instead, the bill modifies the New York City Human Rights Law, Section 8-101 et seq. of the Administrative Code of the City of New York. The Act thus effectively creates a new “protected class” and allows a private cause of action for discrimination against an employer that uses such information. An employer found liable for using credit history in making employment decisions would consequently be treated the same as one engaging in an unlawful discriminatory practice on the basis of age, race, national origin, gender, and the like. These damages are among the broadest of all employment discrimination protection statutes and include the potential for back pay, front pay, unlimited compensatory damages, and unlimited punitive damages.

Attorneys in Gordon & Rees’s New York Employment Practice Group are available to assist employers with any questions or concerns regarding the above.

Filed under Consumer Credit History, New York City Human Rights Law, Stop Credit Discrimination in Employment Act