Oleanna

I wanted to extend the conversation about Oleanna from class today. I have one question that has been plaguing me: what is Mamet saying? The whole thing is so ambiguous. I get the feeling that he wants the reader (or viewer) to contemplate John's hypocrisy and elitism and eventually feel that Carol was justified in finding a way to exert power over him. I get that feeling, and yet I don't buy it. Why does he make Carol so abrasive and dislikeable if he wants us to sympathize with her? Why doesn't he make John's actions more clearly harassment? Why include the allegation of rape which I feel totally ruins Carol's credibility? Does anyone have any idea what he's trying to say or why he chose to be so ambiguous about it? I understand subtle writing, but I think this goes beyond that.

IU's code of Student rights in regards to student-teacher relations

As you know we have been talking about student-teacher relations. So i thought it would be interesting to see Indiana University's take on the subject. Here is the Indiana University code of Students rights it starts at the Part I: Section B Academic Affairs of the code book, and the provision with student teacher relations is #5. Do you think that students and teachers should be able to have a relation if they are in the classroom together? What if it is a grad student and a undergrad? What if the student doesn't even have that teacher in his major and will never have him or her as a teacher, is it OK then?

Here is the site - http://www.life.iupui.edu/help/docs/Part_1all.html

Former state employee accuses director of sexual harassment

I found this article online and thought it was interesting part of it talks about a sexual harassment complaint from a former Agriculture Department employee that has accused the department's director of sexual harassment. The interesting thing is that she is also accusing the director of gender discrimination and punishing her for complaining about the way she was treated. It seems like the director is being accused of hugging her, kissing her cheeks and telling her he would like to see her in a wet T-shirt contest. The director has said that he has already apologized for his actions. I am wondering if you guys think that this conduct is severe enough or pervasive enough to create an objectively hostile or abusive work environment. Because if it is not then it is beyond Title VII's purview. If you remember the reading of HARRIS v. FORKLIFT SYSTEMS INC, the same issue came up. So do you think it falls under title XII? What is she does get it granted to a jury what then, should she be able to supervisor job if she wins the case? or do you think that the suit she bring up will compromise her relations with her fellow workers to a point where if she is their boss, they will be very careful about how they approach her or talk to her out of fear and hurt the success of the business if she is promoted?

Here is the link to the story

Faculty-Student Relationships

As we have been covering the professor-student relationship in Oleanna, I thought that it would be interesting to see what, if any, universities have specific policies establishing what is or is not acceptable in a relationship like John and Carol shared. Although most of the class agreed that Carol was the "villain" in this case, imagine if John's actions were explicitly sexual in nature. The University of Pittsburgh actually has a specific policy governing faculty-student relationships, which states:

"If an intimate relationship should exist or develop between a faculty member and a student, the University requires the faculty member to remove himself/herself from all supervisory, evaluative, and/or formal advisory roles with respect to the student. Failure to do so may subject the faculty member to disciplinary action" (http://www.pitt.edu/HOME/PP/policies/02/02-04-03.html)

Had the exchange between John and Carol taken place at the University of Pittsburgh, what would the outcome have been? Is this policy fair? Do you think that university policies like this are necessary or useful?

Rape charge for Israeli president

Since we have been discussing sexual harassment in class. I thought that this article i read on CNN a while ago was interesting. It seems that Israeli President Moshe Katsav was charged with sex crimes, including rape, which stem from allegations from four of his former female employees. He is also charged with unlawful intercourse and indecent acts against another woman who worked with him while he was president in 2003-04. Katsav also faces charges of indecent acts with abuse of power against two women who worked for him as president. This is probably not a good time for charges like this to pop up because of Israel's war with Hezbollah. So if he is indicted what should the punishment be for a man of this ranking? Should he be made of example of? I ask this because they have had problems in the past. A previous Israeli president and several prime ministers have been suspected of financial misdeeds and a former defense minister was convicted of sexual harassment. But the charges facing Katsav are the most serious criminal counts brought against a serving Israeli official. Let me know what you guys think.

Here is the article. http://www.cnn.com/2007/WORLD/meast/01/23/israel.president.rape/index.html

Thoughts on today's movie

What did everyone think of the movie that we viewed this afternoon? Personally, I felt extremely different about the role's of each character than I had before viewing the film. It seems as though a visual interpretation of a story can completely alter how one views the same story when read. What types of connectors did you see between the two characters? Was there some symbolism in the use of the term "understanding" between the relationships of John and Carol, as well as John and Jerry? Do you think it was easier to understand some of the language used in the story after it was portrayed by actors? Is the language of the characters relevant, or is the story really focusing on the relationship between John and Carol?

Religious Accomodations in the Workplace

As the subject of religion becomes a topic that more and more people feel comfortable talking about in the public sphere, workplaces are being forced to make tough decisions regarding how to make the office a comfortable place for believers (of any faith) and non-believers alike. In When Religious Needs Test Company Policy Kelley Holland explores ideas on how to create a welcoming workplace.
She compares two major companies, Ford and Procter & Gamble...who take very different approaches to the religious accommodation issue. Ford takes a very involved approach. They established the Ford Interfaith Network, an employee-run committee that works to bring accommodations (such as sinks designed for religious washings for Muslims) and holds discussions on different religions. On the other side of the issue sits P&G who takes a "hands-off" approach. P&G does not offer ANY organized religious activities on company property, choosing to deal with accommodations by offering its employees "floating holidays" that they can use whenever they deem appropriate (such as for religious observations) and offers empty rooms that employees may choose to use as prayer rooms.
Ms. Holland also mentions the British Airways incident where a stewardess was told she could not wear her cross on the outside of her uniform. British Airways saw their uniform as a representation of the company and did not allow any type of jewelry to be worn on top of the uniform. The stewardess lost two appeals and was put on unpaid leave, until newspaper editorials, Prime Minister Blair, and the Anglican Church all criticized the airline. Recently British Airways had revised their policy to allow religious pins to be worn on the lapel. I feel like the airline had a great argument that their uniform was a representation of their company and they did not want to include religious symbols on the uniform. Do you agree with British Airways giving in to public and church opinion to allow employees to showcase their religion on their uniform?

Title VII Complications

The latest post from Dr. Jillian Todd Weiss's blog Transgender Workplace Diversity discusses a case where Julie Marie Nemecek, a Spring Arbor University professor, was fired after changing sex from male to female. Nemecek filed a complaint with the EEOC and the university rebutted with a BFOQ defense, citing Nemecek's acts were "inconsistent with the Christian faith". When I first read this, I thought this was a weak argument because non-Christian professors should be able to teach just as well as Christian professors. Indeed, the article states that proving religion as a BFOQ for "normal operations" of the school would be difficult to prove. There is another rule though, that allows religious schools to hire people of a particular religion if it is substantially controlled or supported by a church. Weiss then brings up the dispute among the courts as to whether or not firing an employee for "violation of religious rules" constitutes as religous discrimination or failure to conform to behavioral standards. Weiss also notes that courts have held that the religious exception to Title VII doesn't allow race or sex discrimination.

After reading the blog article, it seems to me that Spring Arbor University will not be able to hide behind the religious employer exception because it does not look substantially controlled or supported by a church. The case looks more similar to Prime v. Loyola University than other cases where religious seminaries fell under the exception. As for Spring Arbor's BFOQ defense, I think the "normal operation" of being a professor is not affected by religion, especially because most of the classes at the university are secular. The university may claim that it fired Nemecek because she didn't conform to the university's behavior standards. But then Nemecek may be able to make a sex discrimination claim because she does not act as men are expected to. What do you all think?

Employment Law Blog Analyzes "The Office"

I stumbled upon "That's What She Said", a blog where labor/employment attorney Julie Elgar analyzes the NBC show The Office and estimates how much money the company stands to lose because of management's antics. In a recent post, Elgar looks at an episode where the company (under real-life circumstances) would be liable for sexual harassment for actions committed during an anti-harassment training program. Elgar discusses how an employee's inability to report harassment would ruin the defense of a company facing a hostile work environment claim. (Remember the employer has an affirmative defense if it can prove (1) it took reasonable measures to prevent and correct the harassment and (2) the employee unreasonably failed to take advantage of the mechanisms in place.)

What if your employer tied you and covered your mouth with duct tape?

Today, I was a little surprised to learn that NASA has developed a policy for how to deal with a psychotic astronaut. NASA's policy involves the use of force, through binding an individual's ankles and wrists together, and then injecting that individual with tranquilizers. Granted, the policy only applies to potential problems that arise while in space, but imagine if that policy were applied in an everyday workplace? Instead of a calling security for unstable behavior, an employee was tied up and shot with tranquilizers. This new policy by NASA determines on a case-by-case basis whether such action is necessary, depending on the severity of an astronaut's psychosis. This policy has recently been instituted because of the incident that occurred several weeks ago where one astronaut attempted to murder another because of a heated battle over the affection of another NASA employee. While I commend NASA for thinking of a new "what if" scenario, I have to wonder if this is the best policy to manage an unstable individual in space? I would think that involving physical restraint would place a crew in more danger than necessary. Do you think that there is a less restrictive way to make space safe if such an incident occurred? Focusing more on the impact of the employer-employee relationship, do you think that enforcing any organization's policy on a case-by-case basis is a good idea? What are some pros and cons? Who should be the one to make the decision that the policy needs to be enforced? How would you eliminate bias from this process?

The article can be found at: http://www.cnn.com/2007/TECH/space/02/23/astronaut.plan.ap/index.html

Same-Sex Harassment and Just Cause Protection (Two Unrelated, But Interesting, Stories)

The excellent Workplace Prof Blog has two interesting posts worth particular note today.

First, there is a post reporting on a recent jury verdict in favor of three men from Mississippi who claimed their employer was liable for violating Title VII by failing to prevent and correct a sexually hostile work environment at the hands of a male co-worker.

Second, there is a story about a Montana Supreme Court decision interpreting that state's Wrongful Discharge from Employment Act (WDEA). Montana is unique in the U.S. as the only state that does not adhere to the traditional employment-at-will rule. Instead, the WDEA sets up a form of a just cause requirement for termination. The case described in the post illustrates how inconsistent enforcement of workplace rules can be evidence of lack of cause. It's an interesting story of a "no grazing" policy at Costco and how a bite of a stale Danish nearly lost a worker his job (and would have in any other state).

Check out both!

Unintended Effects of Employment Laws

The idea of getting a start-up off the ground makes me think of working lots of late nights and weekends to get things ready on time. I think that many of you would agree that we have been brought up with the notion of doing whatever it takes to make sure things get done. This same concept of working late on projects does not translate across the Atlantic in France as many entrepreneurs are finding out.

The article Working in France, in Style of Silicon Valley describes the issues facing hopeful entrepreneurs in France. Many of them have come to the United States, often to Seattle to learn the culture and ways of the start-up world. There are many adjustments they must make to utilize their knowledge in their native France. The first major issue is the "no-failure" culture of France. This is not an employment law issue, but it is worth mentioning that the French culture does not have room for the "American approach of if-at-first-you-don't-succeed." The other problem facing entrepreneurs and their start-ups is an employment issue. French employment law requires a 35-hour work week. While that may sound great to those of us planning on working upwards of 60-hour weeks in a few years, it spells disaster for a start-up. Jacques Souquet is two years into his start-up, a company planning a medical device as described in the NYT article. He tells the story of asking an employee to come in on a weekend once and the furious reaction from his lawyer who feared penalties from the government.

I had never considered that an employment law like this could completely alter the playing field for businesses. I'm sure that the French government did not think they would be harming start-ups in their country when passing the 35-hour work week regulations, but the entire culture that this law represents makes it difficult for entrepreneurs to keep up and be successful. Are there other laws/regulations (either abroad or here in the United States) that you think have a similar unintended effect on businesses?

Title VII Applicability

Although we didn't cover this issue in detail, I think it is important to note who exactly is protected by Title VII. The article "Ex-Partner's Lawsuit Highlights Title VII Issues", discusses whether or not partners are considered as "employees" under Title VII. In making this decision, the article states that the courts will examine the claimant's "role as partner and the amount of management control she had in her job at the large firm". The article implies from this test that the larger the firm, the more likely the court is to hold that an employer-employee relationship existed. If this conclusion is correct, it would seem the courts are giving firms incentive to stay small if they wish to discriminate against their partners. Is this ok? Should Title VII responsibilities extend to other types of working relationships like partnerships?

IDS Article focuses on recent class topic

As I was perusing through today's IDS, I came across an article titled "Dropped Call Collision". The article discusses a current measure being discussed within the Indiana state legislature that imposes restrictions on cell phone use by teenage drivers. The article sparked my curiosity and brought me back to the issue of unintentional discrimination which was the focus of our most recent writing assignment. Obviously the bill is being brought forth in an attempt to make Indiana's roads safer, but is it fair to impose these restrictions only on teenagers? This issue raises the issue of disparate impact, but lacks the element of having an impact on the employee-employer relationship. The real question here is, what happens when the government uses discrimination as a means of protecting it's citizens? Does the fact that the bill is meant to promote safety make it acceptable that it discriminates against teenagers?

Perhaps a better solution to this problem that doesn't discriminate against a particular group of people would be to impose restrictions on new drivers, regardless of their age. Such a restriction based on experience would be similar to the "90-day rule" that currently exists in Indiana. The "90-day rule" doesn't allow new drivers to have anyone riding in the car for 90 days unless there is an individual that is at least 21 years of age. What do you think are some other proposals the state could use to promote safety that doesn't discriminate based on the age of the driver?

Employer Harassment Liability

In discussing harassment today, we touched on the fact that employers are especially liable for harassment by managers. When it comes to harassment by employees (usually involving hostile environment-type harassment claims), the employer may defend itself by proving that (1) the employer took reasonable care to prevent and correct the harassment and (2) the employee unreasonably failed to take advantage of the employer's harassment-reporting mechanisms.

But employers' harassment liability does not stop at its employees. In "Nurse May Sue for Third Party Harassment", the Seventh Circuit Court of Appeals rejected the lower court's ruling that the employer was not liable for harassment because the harasser was an independent contractor. The court stated,

"[I]t makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to 'control' the actor plays no role."

The court them continued,

"Employers are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible - and in this respect independent contractors are no different from employees"

What are the implications of the holding that the employer is liable for maintaining a harassment-free work environment? I suppose the court wants to emphasize the importance of employers implementating effective harassment-reporting mechanisms. But does this put too much responsibility on employers? In the Muir reading for today, Muir states that an employee raped by a coworker may succeed under a hostile-environment harassment claim. But through this same line of thinking, should a "stop-and-rob" convinience store be held liable if an employee is raped by a customer?

Should the law follow the NFL?

Within the packet of cases regarding disparate impact we read for Monday's class the issue of discriminatory hiring practices (even those that may be unintentional) keep coming to my mind. I know we discussed that word-of-mouth recruiting can be a very dangerous area as an employment practice when precautions are not used to ensure a diverse applicant pool. This idea of an employer being committed to looking at a balanced group of potential employees reminded me of the "Rooney Rule" in the NFL.

The Rooney Rule requires NFL teams to interview minority applicants for available head coaching jobs. While none of the NFL teams have admitted to hiring minority head coaches because of the Rooney Rule, several have picked minorities to coach their teams since the establishment of the Rooney Rule in 2002.

An op-ed piece I found co-written by a D.C. attorney and NYU law student use the Rooney Rule as an example for the hiring practices of all companies. They make the point that while the rule is not going to eliminate discrimination completely in the employment decisions of NFL head coaches, it has created a process that helps to decrease the impact of discrimination. In the article, they state that

"the key to eliminating racism in the 21st century lies not in curbing conscious displays of bigotry, but in forcing people to deliberate carefully when making decisions."

Aside from the employment law issue, do you agree with the authors that most discrimination is not a display of deeper bigotry? If it is true that much of discrimination results from quick decisions made due to "implicit biases" of stereotypes, maybe employment law should take a hint from the NFL's Rooney Rule to slow down employment decisions in the workplace.... What do you think?

response to Justin's article

In response to the report that Justin found, the tests still seem too unclear and subjective to me. The author is exactly right when he states "Determining whether a particular test truly discriminates against a certain group can be extremely complex". Decisions and testing for discrimination seem to be inconsistent and unrelated in each case. As an employer, I would be confused and frustrated as to how to protect myself and obey the rules while remaining productive and trying to keep hiring costs low.

Adverse Impact Analysis

I found this adverse impact analysis report and found it to be a good summary of how an adverse impact study is done. The report cites two criteria used when conducting an adverse impact study. The first is the 4/5ths rule, which states that protected class must be at least 80% as successful as other groups (the article uses the example that women must be at least 80% as successful in men in determining growth potential). The second criteria is to see if the differences in results is statistically significant. I think this second criteria has the tendency to place more responsibility on bigger companies. It's been a while since I took statistics, but I'm pretty sure that smaller the sample size, the harder it is to prove statistical significance within a 95% confidence level. For instance, in the case of hiring procudures, smaller companies will most likely not have as many applicants and may not have enough data points to prove statistical significance. What do you all think?

Review of a previous topic

A little over a week ago we discussed the Doe v. XYZ case. I recently came across an article that holds some relevance to the discussion that was held in class regarding that case. This scenario involves an employee of IBM who was fired because he was caught using sexually explicit chat rooms while at work. In addition, this employee was allegedly warned about his behavior after a similar incident had occurred four months earlier. The employee described his visits to such chat rooms as a sort of Internet addiction that developed out of psychological trauma endured in the Vietnam war. According to the employee, this addiction serves as a form of disability, and therefore argues that he should not be fired based on the provisions of the Americans with Disabilities Act.

Although the article doesn't focus directly on the main topics we discussed in class (ownership of computer, monitoring visited sites, etc.), it does promote a legal theory that is relatively unheard of. Are Internet addictions a disability? What are the repercussions if it is found to be a disability? To focus this addiction in terms of college students, what if spending massive amounts of time on facebook, myspace, or other sites was somehow justified as being a disability?

The article can be found at:
http://www.cnn.com/2007/LAW/02/18/chat.room.lawsuit.ap/index.html

Continuing Today's BFOQ Discussion

At the beginning of class today, we discussed the BFOQ claim Hooters made regarding failing to hire men because the purpose of its business is sexual entertainment rather than serving food. This reminds me of Mel's January 18th post, which discussed L.A. Weight Loss Centers's failure to hire an applicant for a sales job because he was morbidly obese. Although the case was argued under the Americans with Disabilities Act of 1990 (ADA) rather than Title VII (which doesn't protect against discrimination on the basis of "weight" anyway), I wonder if the case's outcome would have been different if the case was held in Michigan and argued under state law. Michigan's Elliott Larsen Civil Rights Act does protect against discrimination on the basis of "height" and "weight". Would L.A. Weight Loss Centers successfully be able to argue that being in shape is a BFOQ (i.e. reasonably necessary to the sales position)? Is "fitting the company image" necessary in fulfilling the duties of the job? What do you all think?

Workplace Flexibility

The article, How to Work More Hours and Still Go Home Early in Sunday's New York Times describes the increasing trend of employees to arrive at the office early, often hours before coworkers (and bosses). This "early-in" concept is an effort to finish all tasks and have the ability to make it home in time for bedtime stories with the kids. The lawyer profiled in this story is at work most days by 6 am to ensure that he can leave by 7 pm to spend time with his children. Ellen Galinsky, president of the Families and Work Institute in New York City, says that this trend is indicative of the change in the job force from baby boomers to Generation X & Y-ers. According to Ms. Galinsky those in Generation X & Y have values that center more around family than their baby boomer counter-parts.

The article mentions research that says people are rewarded for extra effort at work, usually for working "longer and later hours" as opposed to earlier. Personally, I believe that an employee coming in hours early should be valued/recognized just as highly as an employee burning the midnight oil. Advances in the flexibility of workplaces seems like a good thing to me. What do you think of the current system for recognition in many companies? Which strategy do you see yourself using to be most productive in the office, coming in early or staying late?

Internet addiction excuse for inappropriate conduct at work?

So, I was just perusing cnn.com and found this article which immediately made me think of L416! Basically, IBM is being sued by an employee that it fired for "inappropriate" use of internet at work (i.e. entering adult chatrooms) but the employee says he is an internet addict and cannot help himself. If it goes to trial, this case could definitely have an effect on the way employers monitor internet use. I just thought it was an interesting take on things. Do you think the man has a good argument? I don't know much about it, but does addiction affect the way an employer/employee relationship can be terminated? For example, if the man was an alcoholic, could he have been fired for drinking on the job? Since he doesn't appear to have been treating his psychological ailment, I feel that perhaps IBM was within reason of firing him. What do you think?

Interesting thought by my roommate...

So when I was telling my roommate about the Hopson vs. Daimler Chrysler case, she made an interesting comment. When I mentioned that Daimler Chrysler kept hiring people with less education than Hobson had or even than the job asked for, she said maybe that was a good business decision to hire someone you can train and pay less. While I think clearly there was discrimination going on in this case, her comment made me wonder if perhaps he was overqualified for the positions he applied for. As someone with both a masters and a bachelors degree, he might not be the best candidate for the company to hire because they would have to pay him more than other hires. And I wonder if there actually are discrimination cases that stem from people being overqualified. Just a thought...

Forced into the New Blogger "Upgrade"

For the other contributors to this site: I was forced today to "upgrade" the blog to "New Blogger." This means when you decide to post on the blog you'll have to create a Google Account (if you don't already have one) and use it to sign in to Blogger.

I didn't want to do this, because it adds another layer of administrative hassle for all of you, but I didn't have a choice. I couldn't get access to the blog anymore without doing so.

Sorry.

Recreational Activities and Smoke Breaks

Ever since class on Monday, I have not quite been able to reconcile the idea that dating does not fit into the category of "recreational activity." I think the definition of "recreational activity" provided by N.Y Labor Law encompasses most of the activities I think of as recreational - like sports and hobbies. But what about the case (and I think we have all known our share of these people) where someone literally spends all his or her time with their boyfriend or girlfriend? When people have few or no hobbies because they spend all their time 'dating', wouldn't dating in fact constitute their main "hobby"? (and thus, a recreational activity?) I think broadly there are only two categories of time - work and recreational activities. If dating does not fit into the category of recreational activity, where would it fit? Perhaps then dating might fit into both of those categories, depending on the well-being of the relationship. A second reason that I have a problem with the distinction between dating and recreational activity is because in reality, the line is often murky and gray. Sometimes two people will swear they are not dating, when outsiders would perceive them as being "on a date." Other times these same people might look back and see that yes, in fact, they actually WERE dating, but didn't see it that way at the time. At what time is dating defined? And is dating defined by the members involved or an outside observer? Lastly, I think the distinction is not warranted because at least personally, the best "dates" that I have been on have been comprised of the same activities that are included in the recreational activity category - going out to dinner, hiking or climbing, getting coffee, or watching a movie. All these activities were lawful, leisure-time activities for which I received no compensation. More often than not, they were the exact same "recreational activities" I would be pursuing in my free time singularly. Any thoughts??

On a unrelated tangent, I also wanted to touch on the mention of North Carolina's statute that protects employees from firing (or not hiring) based on "lawful use of lawful products off the premises of the employer during nonworking hours." The paper (Pagnattaro) also mentions that the use of such products must "not adversely affect the employee's job performance or the person's ability to properly fulfill the responsbilities of the position in question or the safety of other employees." Does anyone know, are there other guidelines for the lawful use of lawful products during working hours on the premises of the employer?? Because I wonder how smoking and smoke breaks fit into this equation. As a non-smoker, I have never seen smoke breaks as fair. Why should a smoker taking a 5 minute paid break get the same money that I should while I am doing work for the company. Non-smokers don't get to take chewing gum breaks, or granola bar breaks, or whatever else you could think of. Yet smokebreaks are accepted in the workplace and accomodated for. You could argue that smoke breaks DO adversely affect the employee's job performance and abilities to properly fulfill the responsibilities of the position because over time, smoke breaks build up and employees spend less time actually doing work for the company in question. Anybody know anything more about this or have opinions?

"Monitoring email: management or thought police"

This is the title of a CNN.com article I found about how companies monitor employee email, who monitors the emails, and how often they are monitored. Check it out below. I was surprised to learn that about 2/3 of "major American firms" use some type of email-monitoring system. What's interesting is that the article focuses on a small company of about 40 employees. This company does not use any type of email monitoring system simply because they are relying on professional work ethic and good judgment. Because of the size and type of company, this laissez-fair policy has worked. However, according to the article, "when intellectual property and sensitive corporate information pass through email on a regular basis, it is essential to have clear policies about what information may or may not pass via the Net, and you must have the software to back up those policies." I think the difference between the security and privacy needs of a smaller business and a large corporation is what we all needed to take into account during the debate on Wednesday. Furthermore, had we not been assigned definitive positions on this argument, I believe many of us would have noted this key difference in our argument papers.

The last point I would like to make is about the purpose of these monitoring systems in general. While in some ways it may seem this way, I don't believe businesses are simply trying to spy on their employees for the sport of it. The monitoring systems are in place protect both the business and the employees and act as a safeguard from offensive emails and websites; and as stated earlier, to protect sensitive corporate information from competitors. Anyway, go ahead and check out the article. It covers all the bases, and then some, from our debate on Wednesday.

"Monitoring email: management or thought police"

Telephone Conversations Across States

E-Mail Privacy in the Workplace Mark Rasch, 2006-07-31

Different states, different lawsThe legal issues around e-mail monitoring all began with the telecommunications giant WorldCom – remember them? Kelly Kearney and Mark Levy lived in California and worked for a company that was acquired by WorldCom. Their valuable WorldCom stock options were handled by the Atlanta branch of Salomon Smith Barney (SSB). When their options went underwater, they sued SSB, and learned that their phone calls from California to Atlanta had been routinely tape recorded in Atlanta.

That's where the trouble started. You see, Kearney and Levy didn't know they were being recorded. Under California law, you can't record someone's conversation without telling them. Of course, no such law exists in Georgia where the recordings were actually made. You see, Georgia law only requires that one of the parties to the conversation consent to the recording to make it legal. Thus, you can record your own conversations, or, if your boss has obtained your consent (they say it's "my way or the highway"), your boss may record your conversation with others. California, on the other hand, requires that everyone on the call consent to the monitoring. When Kearney and Levy learned they were recorded in Atlanta, they went to court in California and sued under California law. On July 17, the California court ruled that California's interest in promoting privacy outweighed Georgia's interest in not having its residents spend time in California jails. The case, Kearny v. Salomon Smith Barney, really focused on the concept of "conflict of laws" – or what to do when one state permits conduct that another state prohibits. Essentially, you balance the competing interests, and in this case, California's court said California's interests prevailed. Recognizing that it was a close case, the court did not apply its finding retroactively, and did not fine SSB for its actions.

Privacy depends on business size (?)

Hey everyone. I was wondering today, while we were having our debate, if you would view the idea of privacy and monitoring employees the same way if the business was smaller. I understand that this is a business/law class and some of you would like to work for a large firm/business someday. I understand the protection that monitoring employees offers a large company. However, I hope to one day work in a somewhat smaller setting, where all the employees are together in one moderately sized office and "everybody knows your name." In that instance, would being a smaller business not require such lengths of monitoring? This idea kind of came from Prof. Prenkert's question to us about becoming autonomous when you go to work for someone else. In a smaller setting, I would think that the employer/employee relationship would be based on a somewhat more solid foundation and the mutual sense of trust would be more appreciated if there was a mutual understanding that each of you is a person with an outside life and that life may require some attention while in the work place. And when it comes to inappropriate behavior, the business is so small that everyone would probably know about it in about 5 minutes. Just a thought. :o) What do you all think?

A little more about genetics testing

We didn't get to talk very much about genetics testing today in class but I had no idea that employers could even ask you to get tested for a genetic predisposition. So I decided to google it and I found a couple of useful sites. The first is kind of old, from around 1999 or 2000, but it's interesting because it's from when this kind of testing was just being introduced. The second is IBM's stance on the subject. They apparently have a policy against using genetic information against employees, which I think is good. A lot of information came up from around the time when this was first introduced but I couldn't find a lot of new information. So if you know more about it (Professor Prenkert) or if you just have an opinion please leave a comment.

Wal-Mart Sex Discrimination

I know this is a little off topic from what we are covering right now, but it actually relates to the book I read for the review so I thought I would share it. Basically, 1.6 million current and former female Wal-Mart workers filed the biggest class action sex discrimination lawsuit in history and it was just approved to move forward. Among the evidence against Wal-Mart is that they paid women less than men for the same jobs, denied them promotions which were given to less qualified men, etc. Here's a link to the article: http://www.msnbc.msn.com/id/17008884/

Rules on Eavesdropping

I also found this article on the New York Times Online website. I was completely unaware of this, but apparently governmental eavesdropping without court warrants is legal. In this situation, the eavesdropping is now being put under court supervision. But by making the eavesdroppers accountable to the court, American's privacy is supposed to be further protected than before.

Here are my questions:
When did this law about legal eavesdropping come about?
Were there not already privacy laws in place that would have put eavesdropping laws in violation of those laws?
Should Americans feel more protected now that these Senators are moving to put eavesdroppers at the mercy of the court?

Article Link

Privacy on Myspace

Just a quick comment on Richelle's post...Myspace does offer privacy settings similar to those of Facebook. Anyone can find you on the site, but if your profile is set to private, only your those people who you have already accepted as your "friends" will be able to see the details of the profile. If someone outside your "friend" network searches for you, they will only be able to see your default photo, name, sex, age, and location (should you chose to fill out that portion of the profile).

I found this article in the New York Times that talks about companies that google interviewees to find additional information about them. College students seem to be upset because the companies may weight the information they find at online sites like Facebook, Myspace, and Xanga more than their resumes. While some companies claim to be looking for "red flags" in potential employees' personal lives, other companies prefer to separate worklife from social life, ignoring these personal websites all together.
The privacy settings on my Facebook profile are set so that only my friends can see my profile. Since Myspace doesn't offer similar privacy options, I choose not to use it. Many of my friends and family, on the other hand, use both Facebook and Myspace. Considering the article and your own use of these types of sites, here are a few questions:

* For those of you who participate in these online profiles, did you have privacy in mind when you were creating these profiles?
* Has your opinion of these types of sites changed since employers have started using them as a hiring tool?
* For those of you who don't use sites like Facebook and Myspace, did the idea of privacy influence your decision to avoid these sites?
* Are companies going too far by investigating students' personal profiles, or does the responsibility lie more in the students' hands?

New York Times article