Employment Law This Week: Password Sharing, Organizing Mixed Units, Mental Health Accommodations, Privacy Shield

(1) Ninth Circuit Affirms Conviction for Unauthorized Password Sharing

Our top story: The Ninth Circuit says unapproved use of a former co-worker’s password can be criminal. An ex-recruiting firm employee used a current worker's credentials to gain unauthorized access to a company database. The Ninth Circuit held that this act violated the "without authorization" prong of the Computer Fraud and Abuse Act, noting that permission for legal access must be given by a computer system’s owner. This decision could have wide-reaching implications in an area of law that has become increasingly criminalized over the past few years. Jim Flynn, from Epstein Becker Green, has more.

"The Nosal case takes the criminalization trend forward in three important ways. First, it takes the statute out of a very technical hacking basis and applies it to a very common-sense situation. The second way it brings it forward is to really couple what's going on in the Computer Fraud and Abuse Act with what's going on in the Economic Espionage Act. And that's an important development. The Nosal case deals with both of them and shows that enforcement can be very effective. The third way that it brings forward trade secret law is to show that there is the availability of criminal relief, but all of these developments also apply on the civil side, because the statutes have civil remedies as well. I, as an attorney representing private litigants, can bring forward claims very similar to what prosecutors do."

Watch the extended interview here.

(2) NLRB Changes Rules for Organizing Mixed Units

Unions can now organize employees of two companies together without the permission of either employer.  That’s according to the NLRB, which ruled this week in Miller & Anderson that it would recognize these mixed units when they find that the companies are joint employers and share a “community of interest.” The Board’s decision overrules their 2004 Oakwood Care Center decision, which held that these mixed units would only be ordered where both employers agreed. This decision will impact many employers and is likely to increase union efforts to represent leased and temporary workers along with an employer’s own workforce. For more on this case, click here.

(3) Seventh Circuit Appeal Clarifies Mental Health Accommodations in the Workplace

In Felix v. Wisconsin Dept. of Transportation, the Seventh Circuit Appeals Court ruled in favor of an employer who terminated a longstanding worker with an anxiety disorder. After the employee was found in a public area rolling around on the floor, the company placed her on leave under the Family and Medical Leave Act and ordered an independent medical examination. She was ultimately fired. The worker then filed a lawsuit claiming that she was fired because of her disability. The appeals court found that an employer isn't required to ignore disruptive behavior even if it's the result of a disability, noting that the employer gave careful consideration to the incident before deciding to terminate.

(4) EU Leaders Approve Privacy Shield Deal

The “Privacy Shield” data transfer pact goes into effect: The European Commission has approved the Privacy Shield, which will allow personal data to be transferred from the EU to the United States. The previous Safe Harbor framework was ruled invalid in 2015 by the European Court of Justice, leaving US companies operating internationally in legal limbo. The new framework tightens restrictions and imposes stronger obligations on US companies to protect the data of Europeans. For more on the Privacy Shield, click here.

(5) Tip of the Week

Sharon Scrima, Human Resources Specialist at Nippon Life Global Investors Americas, is here with some advice on the importance of management training for new supervisors.

"Regardless of how well an employee performs in a staff or production role, it requires an entirely different set of skills, knowledge, and abilities to be an effective supervisor, and this is especially true in today’s complex and ever-changing legal landscape. So here are a few tips for employers to help new supervisors transition into a supervisory position. First, not unlike new hires, create an orientation program for new supervisors that includes an overview of employment laws. ... Secondly, encourage them to consult with Human Resources to talk through issues and get advice on how to handle them. ... And finally, ask them to hold individual meetings with their team so that they can establish credibility as a leader, discuss individual and team goals, and create an environment of open communication and transparency."