As one who presumably has no nude selfies, you may not be too concerned about a “hack” like the one that continues to afflict celebrities like Jennifer Lawrence and Kate Upton. But that doesn’t mean there aren’t still plenty of technology issues that an employer should look out for. Are you guilty of any of these top ten technology blunders that are either committed or allowed by employers?

Blunder No. 1: Recruiting or hiring employees using “coherent people profiles” assembled by aggregators like Spokeo. Spokeo was fined $800,000 in 2012 by the Federal Trade Commission because it gathered all kinds of data about individuals – including race, ethnic background, religion, economic status, and age ranges – and sold the information to employers who used it in making recruiting and hiring decisions. Spokeo was hit because it was not complying with the Fair Credit Reporting Act, but use of this type of information can obviously also violate state, federal, and local anti-discrimination laws, as noted by an attorney from the Equal Employment Opportunity Commission, who spoke at a session on “big data” sponsored by the FTC.

Blunder No. 2: Asking applicants for their social media passwords. This is illegal in an ever-growing number of states, and a bad idea even if you live where it’s legal. As with Blunder No. 1, Blunder No. 2 could give you a lot of information that you’ll wish you hadn’t had.

Blunder No. 3: Legally reviewing “public” social media information too early in the hiring process. This isn’t as bad as Blunders 1 and 2, but it’s still a mistake – particularly if your social media review includes sources that generally contain a lot of personal information, such as Facebook. Again you may get TMI* about an individual’s medical condition or the condition of the individual’s family members, about religious beliefs, about age, and about all kinds of things that you’re not supposed to know early in the process. (On the other hand, reviewing a “professional” social media site like LinkedIn should not be as risky.)

*TMI = Too Much Information

Blunder No. 4: Having a weak, unrealistic, or nonexistent electronic usage policy. If it’s weak, it may not accomplish your goal of having a harassment-free workplace full of productive employees. If it bans all personal internet use during work time, it is unenforceable. Not having a policy at all is bad, too.

A good electronic usage policy will prohibit employees from using the internet and emails, texts, and social media in a way that (1) keeps them from getting their work done, (2) is harassing or discriminatory on the basis of any legally protected characteristic, or (3) is illegal (such as visiting internet gambling sites, doing illegal downloads, or viewing child pornography). Whether you want your policy to go beyond that depends on how much trouble you are willing to risk from the National Labor Relations Board. A good policy will also acknowledge that reasonable personal use of electronic communications is allowed.

Blunder No. 5: If you’re in a business or profession that requires you to preserve the confidentiality of your customers, clients, or patients, failing to ensure that all employees understand that they may never post on social media any individually identifiable information about such customers, clients, or patients. This seems to be a problem primarily with medical care providers, public safety officers, and teachers. Nurse Betty comes home after a hard day, goes on Facebook, and vents,

Or Officer Jim posts a photo of the crime scene he handled that day, including the faces of the victims and their families. Or Teacher Anne vents about the spoiled brats in her class (by name) and their idiot parents. Make sure your employees know before it’s too late not to do this – if you don’t, you may have to fire an otherwise good employee.

Avoiding these last five blunders will require the involvement of your IT professional:

Blunder No. 6. Not taking extraordinary means to protect highly sensitive information such as employee Social Security numbers, employee medical information, and the company’s trade secrets and confidential business information.

Blunder No. 7: Using a cloud-based system for employment information without taking reasonably prudent precautions, including consideration of the following:

Blunder No. 8: Not requiring employees to take reasonable security precautions with mobile devices, including use of passcodes, segregation of business information from personal information, and remote wiping of employer information in the event that the device is lost or the employee is terminated. And don’t forget “low-tech” security measures, such as requiring employees to lock their cars when they’re leaving laptops or tablets in them to minimize the risk of a security breach via an old-fashioned breaking and entering. (Better yet, encourage employees to never leave laptops or devices in the car at all.)

Blunder No. 9: Failing to keep your employees informed of the latest “hacks” and “phishing expeditions,” and other ways dishonest people may be able to get into your data through the employees’ devices. (This could also include the risks associated with storing nude or other sensitive photos in a “cloud” that is not secure.)

Blunder No. 10: Allowing employees to use unsecured WiFi when working on the road, or in restaurants, cafes, or other public places. (PS – If they’re non-exempt under the Fair Labor Standards Act, then this is “time worked,” too, and you have to pay for it.)

As technology continues to evolve, methods of attack will also become more sophisticated and creative. It’s probably unrealistic to expect that you will never experience some type of technology-related “event.” If you do, act as promptly as possible to limit the damage, and make sure all affected individuals are aware.

Ain’t technology grand?

Right?

Well, mostly right. But, as a couple of EEOC lawsuits show, there may be times when you have to make an exception to this rule.(Otherwise, it would be too easy for employers to stay our to leagal trouble.) 

The general rule, of course, is that you don’t get into these topics during the hiring process, and in fact it is usually against the law to get into these topics. But here are two situations — admittedly, rare — when you may be legally required to talk about religion or disability pre-offer.

The general rule, of course, is that you don’t get into these topics during the hiring process, and in fact it is usually against the law to get into these topics. But here are two situations — admittedly, rare — when you may be legally required to talk about religion or disability pre-offer.

1. The religion (or disability) is obvious to anyone with eyes to see, and it appears to disqualify the candidate. Last year, I blogged about EEOC v. Abercrombie & Fitch. The store had a “Look Policy” with a fairly strict set of rules about how store employees (called “models”) were expected to dress at work. The policy prohibited anything on the head. Well, hair was ok, but that was it.

(Abercrombie has since amended its Look Policy to specifically allow for reasonable accommodations.)

One day, Samantha Elauf, a Muslim, applied for a “model” job at an Abercrombie’s in Tulsa, Oklahoma, wearing a hijab (head scarf), which violated Abercrombie’s “Look Policy.”

The hiring manager made the assumption that Ms. Elauf was wearing her hijab for religious reasons but still gave her scores high enough to make her eligible for hire. However, when the hiring manager consulted with her boss about it, he told her to lower Ms. Elauf’s scores so that she would be ineligible. Ms. Elauf was not hired, and she filed an EEOC charge, and the EEOC sued on her behalf and won summary judgment. Abercrombie appealed to the Tenth Circuit, which hears appeals from federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The Tenth Circuit reversed and found in favor of Abercrombie.

According to two judges on the three-judge Tenth Circuit panel, Abercrombie didn’t break the law because it didn’t know whether Ms. Elauf was wearing her hijab for religious reasons (could have been cultural, the majority said), and didn’t know whether she needed a reasonable accommodation to comply with the Look Policy. If Ms. Elauf wanted a reasonable accommodation, she should have asked for it, the majority said. I disagreed with the Tenth Circuit decision, and now please allow me a moment to dance in the end zone:
Yes, the U.S. Supreme Court agreed yesterday to review the Tenth Circuit decision. As I told Scott Flaherty of Law360 yesterday, the way the SCOTUS has framed the issue makes me think they may find in favor of the EEOC:(DISCLAIMER: I am gloating only because I actually managed to predict something correctly.)

“Whether an employer can be liable [for discrimination based on an employee’s religious belief or practice] only if the        employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge    resulted from direct, explicit notice from the applicant or employee.”

(Emphasis is mine.)

If I’d been the Abercrombie hiring managers, and if I had thought the hijab might disqualify Ms. Elauf because of the Look Policy, and if I wasn’t sure whether she was wearing it for religious reasons, I would have asked her in the interview her reason for wearing the hijab. If she said it was a cultural thing (or that she wore it because it was cute, or because her head was cold, etc.), then I would tell her that she couldn’t wear it to work. But if she said she was wearing it for religious reasons, I would have told her in the interview that the store would be able to accommodate the hijab, and I would not have penalized her in the scoring for needing to wear it. (And if there was any question about whether it was “cultural” or “religious,” I would have given her the benefit of the doubt and assumed it was religious.)

Of course, it’s always possible that the Supreme Court will agree with the Tenth Circuit, in which case you can ignore everything I just said.

According to EEOC guidelines on the Americans with Disabilities Act, the same principle applies when a seemingly disqualifying disability is obvious. Let’s say you’re hiring for a maintenance position, and an applicant who looked very qualified on paper shows up for the interview in a wheelchair. This appears to be an obstacle to the performance of a maintenance job, which would require the candidate to climb, crawl, lift, and do all kinds of other physical things. But you can’t just “ignore” the wheelchair and then refuse to hire the applicant. Instead you are supposed to ask how he would perform the job, and at that point you may even end up talking with him in the interview about possible reasonable accommodations. If you can accommodate the disability, then you should hire the individual if he’s the most otherwise-qualified candidate. If you reject him because no reasonable accommodation is possible (based on facts, not assumptions), then you should be on legally solid ground.

2. The applicant volunteers that he has a disability (or religious need) that you think may disqualify him from the position. Which brings us to the case of EEOC v. Howard University, which a federal judge in Washington, D.C., decided will go to a jury trial. This time we have Clarence Muse, an applicant for a campus security job who disclosed in his job interview that he had end-stage renal failure, and had to go for dialysis three mornings a week. (He was apparently able-bodied otherwise.) The university said that it required employees in the positions to work rotating shifts, but it wasn’t clear that this was required on more than an ad hoc basis.

Anyway, after Mr. Muse mentioned his renal condition, the interview ended, and he was not selected. The university had conflicting explanations for rejecting him, but arguably it was because of his inability to work rotating shifts because of his dialysis appointments.

The university moved for summary judgment, saying that inability to work rotating shifts was a legitimate reason to reject Mr. Muse, and the court agreed that it could be . . . in theory. Unfortunately for the school, though, the EEOC had some evidence that Mr. Muse could have worked the schedule that the school actually required, and even could have adjusted his dialysis schedule as needed, exactly as he had done in his previous job which he had performed well and for which he had received kudos for always being available to sub for others. According to the court, the university should have followed up after Mr. Muse disclosed his condition by asking whether he would be able to handle the schedule, or how he would do it.

In other words, although it would have been illegal for the school to initiate a conversation about Mr. Muse’s medical condition in the job interview, once Mr. Muse brought it up, the school could not reject him because of his condition without doing the necessary follow-up.

The same principle would apply if an applicant disclosed that she had religious beliefs that mightpresent a problem performing the job.

So, there are two morals to this story: (1)  occasionally you really ought to ask about disabilities or religion in hiring even though 99.99 percent of the time you should not, and (2) notice how the EEOC just keeps rocking’ along with these lawsuits.

Instead of ”interactive process,” it should be called “sit-down.”

When an individual needs a reasonable accommodation, the employer is supposed to have an actual or virtual “sit-down” with the individual to brainstorm about reasonable accommodation options. As with all sit-downs, face to face is best, but it’s also fine to do it by telephone or email.

Once all the accommodation options are on the table, the employer considers them all, giving due consideration to any suggestions made by the individual. The employer then chooses the one that works best. If the employee suggests an accommodation that costs $10,000, and the employer knows of an effective accommodation that costs $10, the employer has the right under the law to pick the $10 accommodation.

Sometimes neither the individual nor the employer will know of any accommodation that will work. In that case, you document what you did, and take whatever action is appropriate under the circumstances.

Isn’t that easy?

Now that you’ve had that quickie lesson on the ADA “sit-down” “interactive” process, here’s a quiz. As usual, there is no grading and no pressure, because the answers immediately follow the questions.

The correct answer, of course, is “Talking directly about reasonable accommodations with the individual.”

You did a great job! Read on . . .

Next question!

The correct answer is “False.” Reasonable accommodations may be required at any point in the hiring and employment process. An individual may need accommodations to even be able to apply for the job. After an offer of employment is made, the individual may not be medically cleared by the doctor to work but may still be able to do the job with a reasonable accommodation (or, possibly, be considered for a more appropriate vacant position). So these “pre-employment” accommodations may also require the employer to talk with the individual about possible reasonable accommodations.

Here is another one:

The correct answer is “Give it first consideration.” The key word here is “consideration.” You have to consider it (and in good faith), but you don’t have to do whatever the individual wants. You should credit the suggestion and seriously consider it because many times the individual will be the best judge of what’s needed. But not always. The individual may not know enough about your jobs, or how her proposed accommodation will affect the productivity or performance of others. This is why the law allows you, the employer, to make the final decision. And, as stated above, you can choose the cheapest and easiest accommodation . . . as long as it works. (That is, as long as it allows the individual to perform the essential functions of the job.)

And here’s the last one:

The correct answer, of course, is “Sometimes complicated, but sometimes very simple and easy.” It really does not have to be a hassle, and getting reasonable accommodation issues resolved early, and with the cooperation of the individual, will save you a great deal of trouble — including EEOC charges, lawsuits, and legal fees — later on.

That said, “Greatest thing ever!“? Let’s not get carried away.