Workplace Prof Blog

Doorey's Law of Work Blog Updated

David Doorey is a labour law professor at York University in Toronto who many of you know. His popular blog on labour and employment law, Law of Work Blog, has had a professional makeover.  

You should check it out as a great source of issues and events in Canadian law and policy.  Last year it received the honour of Best Law Blog in Canada. 

Defintely worth a look.

PS

Interesting Whistleblower Decision from Michigan Supreme Court

Thanks to Sam Bagenstos (Michigan) for passing on this recent whistleblower decision, Whitman v. City of Burton, from the Michigan Supreme Court.

Here is the summary from Justia.com (opinion also included at this link):

Plaintiff Bruce Whitman had been employed by defendant City of Burton as the police chief from 2002    until 2007. Codefendant Charles Smiley, the Mayor, declined to reappoint plaintiff. Plaintiff then filed suit under the [Michigan] Whistleblowers' Protection Act (WPA), alleging that he was not reappointed because he had threatened to pursue criminal charges against the mayor if the city did not comply with a city ordinance and pay him for unused sick, personal and vacation time he accumulated in 2003. Defendants contended that plaintiff had agreed to forgo any payout for accumulated leave in order to avoid a severe budgetary shortfall and that plaintiff was not reappointed because the mayor was dissatisfied with plaintiff's performance as police chief. A jury returned a verdict in favor of plaintiff; the trial court denied defendants' motion for judgment notwithstanding the verdict or a new trial. Defendants then appealed. The Court of Appeals reversed, concluding that plaintiff's claim was not actionable under the WPA because he had acted to advance his own financial interests and not out of an altruistic motive of protecting the public. Upon review, the Supreme Court concluded that nothing in the WPA's language addressed an employee's motivation for engaging in protected conduct, nor did any language mandate that the employee's primary motivation for pursuing a claim under the Act be a desire to inform the public of matters of public concern. Accordingly, the Court reversed the appellate court and remanded the case for consideration of remaining issues on which that court did not formally rule, including whether the causation element of the WPA had been met.

This is an interesting ruling, especially since the Michigan WPA seems to diverge from the federal WPA as far as what is considered protected activity.  I may be wrong on this point and I'll let other experts, like Richard Moberly, weigh in. 

Also, I do not know enough about the Michigan WPA to know whether this interpretation jibes with something peculiar in the way this state law is written, or whether this provision exists in many states and is similar to the federal law.  If the latter, this decision could be persuasive authority for other states and as far as the federal law. 

One additional thought.  Interesting that the plaintiff decided not to file a First Amendment claim.  Just speculation, but perhaps the attorney thought this would be considered official capacity conduct under Garcetti or not a matter of public concern under Connick.  Regardless, given all the hurdles a plaintiff must negotiate to win a public employee First Amendment claim, clearly his counsel made the right call in focusing on the state WPA law.

PS

D.C. Circuit Strikes Down NLRB Notice Rule

Here we go again.  You know the saying, "Bad facts makes bad law"--well, for the D.C. Circuit you might replace "bad facts" with "NLRB."  I know from my time as an NLRB appellate attorney that a lot of circuit judges don't like the NLRA, but much of the D.C. Circuit seems to go into a frenzy when presented with an important NLRB issue.  Recently, we saw the court strike down over 150 years of recess appointment practice in Noel Canning; today, the court expands the First Amendment far beyond what I've seen (in an admittedly narrow area) and strike down the NLRB's long practice of equitable tolling--all in a case involving something as common as a government employee right's notice.  The case is NAM v. NLRB (the judges were Randolph, Henderson, and Brown--another reminder that the White House's inability to get nominees on teh D.C. Circuit has a real impact).

Although the court starts with Section 8(c), which prevents the NLRB from using non-threatening speech as evidence of a ULP, the bulk of its holding makes an argument that First Amendment prohibits the government for telling companies to disseminate government information (Judges Henderson and Brown would also hold that Section 6 does not allow the Board to issue prohphylatic rules either).  Indeed, based on my quick reading of the opinion, it seems to cast doubt on the ability of the government to require notice postings in most instances, or at least punish any employer for refusing to post notices (it did hold that its opinion didn't oerturn pre-election notice posting requirements, which don't implicate Section 8(c)).  In other words, we may see challenges to FLSA, OSHA, and EEOC notices--although I'm guessing that most employers are used to these and don't get as worked up about informing their employees about the right to be paid the minimum wage, not to die at work, and not be discriminated against than they do about informing employees about their right to unionize.

In spite of the broad First Amendment language, the court ultimately holds that the central problem is that the NLRB cannot issue a ULP finding for a failure to post a notice or use that failure as evidence in a ULP case.  One might think that the Board would still be able to "require" the notice postings--but be unable to punish an employer for not following the requirement.  However, the court killed that option for the time being by refusing to sever the notice requirement from the enforcement provisions because the Board had earlier decided not to issue a voluntary rule.  That seems like a weak reed to knock out the entire rule, especially given that the court left open the question whether the NLRB had authority to issue an enforcement-less notice rule.  If the Board even gets its quorum question settled, it may try to issue the notice requirement while avoiding the enforcement problems.  Issuing a notice requirement without a way to enforce it perhaps seems a wasted effort, but I think there is some force in a government requirement, even one without a penalty.  On the other hand, the NLRB may be exhausted by its attempt to merely inform employees of their rights and just give up.  I'll also note that the court stressed the Board's failure to list employees' right to decertify in the notice, which--as I've noted before--I thought was bad judgment.  That wouldn't have affected the outcome, but it didn't help.

Of perhaps even greater significance was the court's rejection of the NLRB's alternate means of enforcing the rule:  by tolling the statute of limitations for a failure to post.  But, the court didn't just reject tolling for notice violations.  Instead, it when much farther by rejecting the Boad's use of equitable tolling in general.  

In many ways, this is the same thing we've seen for a long time from circuit court and the D.C. Circuit in particular.  But I do think that this case and Noel Canning illustrates a new level of activism.  The court is reaching far beyond what it needs to strike down a NLRB rule without much thought (or at least much care) about the broader ramifications.  For instance, the court dismisses the Board's reliance on a decision upholding a Bush-era rule requiring posting of notice of workers' right not to join a union or the right to make dues objections because the challenge to that case did not have a free-standing First Amendment claim.  Fair enough, perhaps, but the court didn't seem to grasp the signficance that this ruling might cut different ways.  For instance, once unions start attacking restrictions on its speech (seriously, what's been taking so long?!), will the D.C. Circuit be just as committed to its construction of the First Amendment?  We'll have to see . . . .

Hat Tip:  Patrick Kavanagh

-JH

Zelinsky on California Dreaming: The California Secure Choice Retirement Savings Trust Act

Edward A. Zelinsky (Yeshiva University - Benjamin N. Cardozo School of Law) has posted on SSRN is new piece forthcoming in the Connecticut Insurance Law Journal: California Dreaming: The California Secure Choice Retirement Savings Trust Act.

Here is the abstract:

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual retirement accounts under the Code. Hence, employees participating in savings arrangements established under the Act will not receive the income tax benefits associated with individual retirement accounts.

If the Act were to be amended to make its accounts individual retirement accounts, the Act would survive ERISA preemption under New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995), though not under Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). Since Travelers is the Court’s more recent and more compelling construction of ERISA preemption, the Act should survive ERISA preemption if the Act is amended to have true individual retirement accounts.

A final section addresses the choices other state legislatures (as well as Congress) confront if they elect to follow part or all of the path on which California has embarked to encourage private retirement savings. President Obama has recently proposed a federal mandate under which employers with more than ten employees would be required to maintain either retirement plans or IRA coverage. The President’s proposal ensures public debate about the appropriate function of government in encouraging retirement savings. The Golden State’s Act will play an important role in that debate. In that debate, I favor state-by-state experimentation rather than any single approach to the task of encouraging greater retirement savings.

As always, Ed wrties a comprehensive, easily-understandable explanation of the new California state-run pension plan for private employees. I have read this piece in full and agree with Ed that California has failed to set up IRAs for employees as they desired and instead have created an ERISA plan.  I also agree with Ed that such provisions should be amended so that this scheme is given a chance to work to provide an additional vehicle for retirement savings for California residents.

PS

April Unemployment Data

The Department of Labor released its April unemployment report today and, overall, it was a good one.  The unemploymetn rate went down a tenth of a percent, to 7.5% on an increase of 165,000 last month.  The revised numbers for the past two months were also quite good, with an overall increase of 114,000 jobs.  And the rate wentdown despite an additional 210,000 entering the job market last month.  The job increases were also broadly spread out with only construction and government (yet again) showing job losses.  

 

 

 

Happy May Day!

rb

Youngdahl on Investment Consultants and Institutional Corruption

Jay Yougdahl (Harvard University - Edmond J. Safra Center for Ethics) has recently posted on SSRN his new piece entitled: Investment Consultants and Institutional Corruption.

Here is the abstract:

Analyses of the financial crisis of 2007-2009 and the continuing effects of a difficult investing environment have largely focused on factors such as the roles of failed and complex financial products, inadequate credit rating agencies, and ineffective government regulators. Nearly unexamined, however, is a key group of actors in the financial landscape, investment consultants. Investment consultants stand as gatekeepers between large investors, such as private and public retirement funds, and those from “Wall Street” who design and sell financial products. Investment consultants hired by these asset owners practically control many investment decisions. Yet, as a whole the profession failed to protect asset owners in the recent financial crisis and has yet to engage in serious self-examination. Much of the reason for the failure can be traced to institutional corruption, which takes the form of conflicts of interest, dependencies, and pay-to-play activity. In addition, a claimed ability to accurately predict the financial future, an ambiguous legal landscape, and a tainted financial environment provide a fertile soil for institutional corruption. This institutional corruption erodes the confidence and effectiveness of the retirement and investment systems today. While not proposing a comprehensive system of reform, this article illuminates a way forward for those in the industry who have the desire to address and implement necessary corrective activity.

This is a timely and provocative contribution by Jay. In light of the increased movement from traditional pension to consumer driven defined contribution plans like 401ks, there is a very significant role being played by investment consultants in the pension world today, perhaps more than ever.

This role is largely misunderstood or ignored by many who practice ERISA law, and of course, by many plan participants and beneficiaries. It will be interesting to see what impact this paper may have on the increasing reliance on 401ks on the one hand, and the new trend among larger companies (like GM and Verizon) to derisk their pension obligations by purchasing group annunity contracts from large insurers (like Prudential) on the other.

PS

Investment Consultants and Institutional Corruption

Jay Youngdahl

Harvard University - Edmond J. Safra Center for Ethics

April 25, 2013

Edmond J. Safra Working Papers, No. 7

Abstract:     
Analyses of the financial crisis of 2007-2009 and the continuing effects of a difficult investing environment have largely focused on factors such as the roles of failed and complex financial products, inadequate credit rating agencies, and ineffective government regulators. Nearly unexamined, however, is a key group of actors in the financial landscape, investment consultants. Investment consultants stand as gatekeepers between large investors, such as private and public retirement funds, and those from “Wall Street” who design and sell financial products. Investment consultants hired by these asset owners practically control many investment decisions. Yet, as a whole the profession failed to protect asset owners in the recent financial crisis and has yet to engage in serious self-examination. Much of the reason for the failure can be traced to institutional corruption, which takes the form of conflicts of interest, dependencies, and pay-to-play activity. In addition, a claimed ability to accurately predict the financial future, an ambiguous legal landscape, and a tainted financial environment provide a fertile soil for institutional corruption. This institutional corruption erodes the confidence and effectiveness of the retirement and investment systems today. While not proposing a comprehensive system of reform, this article illuminates a way forward for those in the industry who have the desire to address and implement necessary corrective activity.

Slater on Interest Arbitration

Joe Slater (Toledo) just posted on SSRN his article (OSJDR) Interest Arbitration as Alternative Dispute Resolution: The History from 1919 to 2011. Here's the abstract:

This paper comes from a February 2012 Symposium, "The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector." It discusses the history of an important form of alternative dispute resolution: the use of what is called “interest arbitration” to resolve bargaining impasses in public-sector labor relations. This process is used in many states as an alternative to strikes. While interest arbitration has been a crucial part of public-sector labor law and labor relations for decades, it has come under increased scrutiny recently. Indeed, in the wave of laws passed in 2011 restricting the rights of public-sector unions to bargain collectively, interest arbitration was repeatedly attacked, and in several states it was eliminated or restricted.

This paper gives a historical overview of the development of interest arbitration, discussing how and why it developed as it did. This development was neither inevitable nor “natural” in that many other western democracies generally allow public workers to strike. But only a few states in the U.S. allows any public workers to strike. Thus, the question is: why did U.S. law and policy develop the way it did? This paper traces the relevant history from 1919 through to the new, restrictive laws of 2011. It starts with the Boston Police strike of 1919 — a seminal event in the history of public-sector labor law, that had a profound and lasting impact on how U.S. policymakers felt about dispute resolution in public sector labor law. It then turns to the first public-sector labor law permitting collective bargaining — passed, ironically in view of recent events, in Wisconsin in 1959 — and describes how concerns about dispute resolution were central to debates over that law. The paper continues by explaining how interest arbitration in public-sector labor relations has evolved and how it has worked from the 1960s into the 21st century. Finally, the paper explores the very recent developments in this area in the laws of 2011.

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More on Seiner's Post-Dukes Advice

Another shout out for Joe Seiner's (SC) recent article, "Weathering Wal-Mart," on post-Dukes class action lawyering.  Thomson-Reuters recently did a story on his article.  Some highlights:

"I do think there is a hunger for what are some of the procedural avenues to overcome the decision," Seiner said in an interview. "How can we achieve a class action? "That's where I'm trying to push the discussion." . . .

He prescribes three broad approaches. First, he writes, the EEOC, as a government plaintiff, is not bound by Dukes and should bring more broad-scale cases involving workplace discrimination. While noting that the EEOC is "historically underfunded," Seiner says the agency can nevertheless achieve meaningful injunctive and monetary relief.

Next, Seiner turns to procedural responses. When trying individual cases, plaintiffs' attorneys should make better use of collateral estoppel, the doctrine that says that a determination in one case should affect a related matter. . . .

Finally, Seiner writes, plaintiffs' lawyers should try to "cabin" Wal-Mart, by which he means making sure the decision applies only to the very, very large class actions such as Dukes. They should also try to take the decision "at its word," by flooding the courts with separate individual lawsuits.

In the article, Joe also notes that his next step maybe to focus more on practioners' ideas.  So I think I can speak for him in saying he'd love to hear from any of you with additional thoughts.

Hat Tip:  Suja Thomas

Bagchi Selected As One of New York Law Journal's 2013 Rising Stars

From Dean Michael Martin at Fordham Law School:

Please join me in congratulating Fordham Law Associate Professor Aditi Bagchi on her selection as one of the New York Law Journal’s 2013 Rising Stars. She is the only law professor among 44 honorees selected from more than 200 nominations of young lawyers who have established a record of accomplishments and demonstrated that they are top contributors to the practice of law and their communities. Read the NYLJ announcement.

Professor Bagchi—Fordham Law’s youngest tenured faculty member—has rapidly established herself as a leading academic in the field of contract law. As the recent recession has caused policymakers to reconsider methods of economic regulation, she has offered ways to reconcile interests in efficiency and equity within existing common law traditions. Her scholarship includes philosophical analysis of the nature of contractual obligation as well as detailed analysis of particular classes of contract, especially employment agreements.

Congratulations, Aditi! Well deserved.

Hat Tip: Mike Zimmer

PS

Conference: Violence, Health, & Labour

Daria Chernyaeva (National Reasearch University - Higher School of Economics, Moscow) sends word that our Spanish colleague prof. Lourdes Mendez has asked her to spread the word on an International Conference devoted to the "Violence, health and labour in the time of crisis" that is about to take place in the middle of July this year at the Law Faculty of the University of Santiago de Compostela (Spain).  Proceedings will be held in, or translated to, Spanish, English, French, and Portuguese.  Here's the tentative program; for more information, contact prof. Mendez directly.

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NLRB Files For Cert. in Noel Canning

Yesterday, the NLRB filed a cert. petition with the Supreme Court to overturn the D.C. Circuit's decision in Noel Canning.  You can see the petition here.  Lyle Dennison at SCOTUSblog has a nice summary of the issue here, including the fact that it's highly unlikely that the Court will hear the issue this term, leaving the NLRB twisting in the wind for a while longer.

Given the delay in resolving the issue, were largely back to where we were before:  One settled NLRB member, whose term is expiring later this year and who has been renominated; two recess appointments whose status is up in the air and who have been renominated; and two new nominees.  Basically, by the end of the year it's possible the the NLRB will have a full five members, no members, or something in between (how's that for covering all the bases?).  The Senate has scheduled hearings on the pending nominations for May, but I don't know how seriously to take that.  Stay tuned.

Hat Tip:  Patrick Kavanagh

-JH

McCormick and Sperino Receive Teaching Awards

Congratulations to Sandra Sperino (Cincinnati) and Marcia McCormick (SLU), both of whom have just received teaching awards at their respective schools.  Sandra received the Goldman Prize for Teaching Excellence, and Marcia the Student Government Association Faculty Excellence Award.  It's a well-deserved honor, Sandra & Marcia!

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ISO Chapters on Foreign Labor and Employment Laws

Oxford University Press is publishing a book titled "Global Labor and Employment Law: Reports From Law Offices Worldwide," which is being edited by Sam Estreicher (NYU), Michael Gray (Jones Day), and myself.  It is going to be a comprehensive book, both in the topics covered as well as the number of countries we have chapters for.  Thanks to many attorneys at Jones Day and elsewhere, in addition to academics, we've got most of what we need, but there are a few holes.  Below are a list of countries that we'd like to have chapters on--if you're knowledge about the labor and employment laws in any of these countries and would like to join what look to be a great book (I'm only a bit biased), please send me an email: jmhirsch@email.unc.edu.

• Thailand
• Cambodia
• Poland
• Czech RepubliC
• HUngary
• Egypt
• UAE

-JH

Hooter's Waitress Alleges That Brain Surgery Resulted In Her Losing To Her Job

A waitress at a Missouri Hooter's restaurant alleges that her post-brain surgery appearance cost her her job.  Following the removal of a brain tumor, her bosses at Hooters ordered her to wear a wig to cover up her bald head and surgical scar.  She responded that she couldn't afford a wig (Hooter's didn't offer to pay for it) and when she tried to wear a borrowed one, it hurt her healing wound.  Then, according the the waitress, her hours were reduced so much that she had to quit.  Our own Marcia McCormick was quoted on her ADA suit in the ABC News story:

Marcia McCormick, an associate professor of law at St. Louis University, said Lupo's surgery to remove a brain mass qualifies as a disability, but that Hooters could argue that her appearance was a bona fide qualification for her job.

"In the disability context, if Hooters is to say she's not as attractive now without this wig, if they're selling her attractiveness that might be a real function of her job and mean she isn't qualified by the Americans With Disabilities Act," McCormick said.

"Most companies can't say something like this, but Hooters sells this experience," she said.

There's at least something of a good ending, no matter what happens to the case, as the waitress, who was a nursing student at the time, is now employed as a trauma nurse.

Hat Tip:  Joe Seiner

-JH

Long & Sperino on Diminishing Retaliation Liability

Alex Long (Tennessee) and Sandra Sperino (Cincinnati) has just had their essay, "Diminishing Retaliation Liability" published in the NYU Law Review Online.  The essay's introduction:

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

An interesting topic from two folks who know their retaliation law, so check it out.

-JH

The Peggy Browning Fund's Take on the Academic Future of Labor and Employment Law

Continuing a conversation that was started on this blog a couple of weeks, Joe Lurie of the Peggy Browning Fund writes to provide his take on the academic future of labor and employment law in the greater legal academy and what his group, the Peggy Browning Fund, is doing to help to ensure the future of labor law in particular:

As most of you know, the Peggy Browning Fund’s core mission is educating law students as to the rights and needs of workers.  As recently as 20 years ago, law schools across the country recognized this educational goal as an important part of their curriculum.  Unfortunately, today this is no longer the case.  On April 11, 2013, Reuters reported that Professor Paul Secunda, who teaches labor and employment law at Marquette University School of Law, stated that “law schools give labor and employment law short shrift.”  Professsor Secunda went on to say that “hiring among law school professors specializing in labor and employment dropped this year, and the field is overlooked at many law schools.”

Thanks to your help, we have made, and continue to make, an impact in the education and recruitment of young lawyers for the labor movement.  Our 10-week summer fellowship program and our annual National Law Students Workers’ Rights Conference provide the training and education many law students want but do not receive in law school.  We offer law students wide-ranging opportunities to work for social and economic justice.  Building on these opportunities, many of our alumni have gone on to work for unions, the National Labor Relations Board, the U.S. Department of Labor, worker centers and union-side law firms.

Law schools have created a vacuum in labor law and employment law legal education. Even though we are proud of increasing the number of fellows we placed to 70 positions, we cannot begin to fill this vacuum.  This year we received well over 500 applications for the 70 fellowship positions we can afford to offer.  The waiting list for unions and worker centers wanting our students is long and continues to grow.  With your help, we can continue to strengthen the labor movement by educating the next generation of lawyers committed to working for economic and social justice.

Thanks to Joe and the Peggy Browning Fund for penning this piece and I can state from personal experience that my students over the years have very much enjoyed participating in the group's national conference and fellowship programs.  

Just another avenue (albeit on the union side of things) for providing the labor and employment law skills and education students need to be successful attorneys in this vital area of study.

PS

Labor Law Makes an Appearance on The Good Wife

From Harris Freeman (Western New England), a lighter entry on pedagogy and popular culture. Harris writes:

A rare cultural phenomena – labor issues driving the plot of a prime-time TV show. This week’s episode of The Good Wife (#21), a legal drama on CBS starring Julianna Marguiles, featured a plot devoted to labor law:  Attorney Alicia Florick (Marguiles) was ‘tricked/coaxed’ into representing a group of computer coders at a software company who sought to form a union. 

Much to my surprise, a series of hearings before an administrative law judge at the NLRB provided the adjudicatory framework.  Legal issues included whether: workers were employees; engaged in concerted activity; suffered from discrimination because they chose to form a union, and; whether employer electronic surveillance was lawful. What’s more, the firm’s representation of these employees proved a catalyst for the law firm’s administrative staff to complain about their own workplace conditions and a justifiably cynical take on how employers “lawfully” handle employee dissatisfaction. 

If you can get a hold of the episode, excerpts would make for some effective use of popular TV culture for classroom teaching and conversation.   A summary of the episode is available at Entertainment Weekly here.  

Does all this also mean that labor law is again bubbling up in Americans' consciousness? Have the events of Wisconsin, Michigan, and the NLRB finally got some in Hollywood to take notice of the importance of these issues to the future of our country?

OK, probably not. But one can dream.

PS

Bisom-Rapp on Cert in Another ATC Case

Thanks to Susan Bisom-Rapp (Thomas Jefferson) for sending us this:

This morning the Supreme Court agreed to hear another Alien Tort Statute case, DaimlerChrysler AG v. Bauman.  The defendant is a German corporation sued for human rights violations allegedly perpetrated by its Argentine subsidiary.  The plaintiffs are former employees and family members of former employees from an auto plant in Argentina, and they allege that during the Argentine dirty war the subsidiary labeled the former employees as subversives.  Those employees were subsequently detained by security forces and some “disappeared.”  The connection to the U.S. is that DaimlerChrysler sells automobiles in the U.S. via its U.S. subsidiary.  Whether that connection will be enough to supply jurisdiction under the ATS is the open question after last week’s decision in Kiobel.  Here is a link to a post about the case on SCOTUSblog.

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King and Spalding's Surprising New Email Policy

One of the areas that I have recently been researching regards the impact of technology of employees' expectations of privacy while at work or engaged in work outside of the workplace.  Though not completely related, now comes word that a large law firm, King & Spalding, has put into place a very aggressive email policy.  Here are some excerpts of that policy:

KING & SPALDING — FIRM-WIDE-ANNOUNCEMENT — EMAIL ACCESS

New Policy Prohibiting Access to Non-King & Spalding Email Accounts (“Personal Email Accounts”) from Firm Computers

The firm’s internal security experts, as well as our outside security experts, have advised us that accessing Personal Email Accounts from firm computers creates a significant security risk. Therefore, effective May 1, 2013, access to Personal Email Accounts (i.e., anything other than your kslaw.com email, including, but not limited, to personal email accounts like Gmail, Yahoo, Hotmail, cable company, etc.) from King & Spalding computers will no longer be permitted.

Most personal email sites will be blocked while you are on the firm’s network. However, you should not access Personal Email Accounts from a firm computer, even if you are not automatically blocked when trying to do so. For example, you should not access Personal Email Accounts from a firm laptop, even when the laptop is not connected to the firm’s network (i.e., from your home network, a hotel internet, etc.). The firm’s computer systems hold confidential information about our clients and the firm and, as you know from reading articles in the press, individual users who innocently click on malicious e-mails are often the cause of security breaches. We need your help in protecting our systems by following this and other security related policies, even when you can do things that you are not supposed to do . . . .

Permissible Ways of Accessing Personal Email Accounts

The prohibition against accessing Personal Email Accounts from firm computers does not impact your ability to access Personal Email Accounts such as Gmail, Yahoo or Hotmail from your own personal devices (e.g., smartphones, iPads, tablets, personal laptops, etc.) while at the firm . . . .

Clearly, K&S has acted decisively to protect against leaks of confidential information and perhaps against compromosing their system through viruses and other malware. Although this policy would appear to diminsih whatever expectations of privacy individuals have in personal email use during work, other cases, under the Electroic Communication Privacy Act (EPCA) stand for the proposition that whereas an employer has the ability to monitor work emails and other computer use for company violations, they do not have the same ability to monitor personal email accounts. 

Perhaps because of the inability to monitor personal email accounts, the firm decided to just prohibit all access to such email period.  I wonder whether there will be pushback from employees, or under current law, do employers like K&S have carte blanche when making these types of decisions in the workplace concerning email and use of technology?

PS