Protecting the Personal Information of Employees
One of the most important responsibilities of an employer is to protect the personal information of its employees. Employers who fail to do so may face lawsuits alleging an invasion of their employees’ privacy.
Some of the most common privacy issues employers must address with respect to employee personal information include public disclosure of personal information, data breaches, background investigations, and email accessibility issues.
Public Disclosure of Personal Information
Under state and federal laws, employees have a reasonable expectation of privacy in the workplace. If an employer publicly discloses personal information of an employee without their permission, it may constitute an invasion of privacy. This often relates to the publication of private and/or embarrassing personal information.
When a data breach results in the disclosure of an employee’s personal information, the employer faces potential liability. The most common types of data breaches involve stolen technology, such as the theft of a company computer, which would allow access to the personnel records of an employee.
A data breach could allow information including Social Security numbers, bank routing numbers, and drivers’ license numbers, to become public.
Employees have filed suits against employers following data breaches in which the employee’s information was used to make unauthorized credit card purchases or to file fraudulent tax returns.
In November the Pennsylvania Supreme Court found an employer liable based on negligence, following a data breach on the company’s computer network. The employees alleged the employer failed to take adequate security measures, such as using encryption techniques, firewalls, or authentication programs.
In addition to the monetary damages which resulted from the filing of false tax returns, the employees sought compensation for the allegedly increased risk of becoming a victim of an identity theft or financial fraud crime.
The court held that an employer has a duty to use “reasonable care” to protect their employees’ personal information that may be stored on a company computer. Whenever an employer collects and stores an employee’s personal information, there now exists a common law duty to properly secure the information and protect it from cybercriminals. Employers will have to demonstrate “reasonable” measures are in place to protect this information.
Employers also should be aware of the privacy issues associated with conducting background investigations on prospective or current employees. Under the federal Fair Credit Reporting Act (FCRA), an employer must have an applicant’s permission before using a third party to conduct a background investigation.
Email Accessibility Issues
An employer’s access to an employee’s electronic communications, such as email, also may raise privacy concerns. Although the federal Electronic Communications Privacy Act of 1986 (ECPA) and the Stored Communication Act (SCA) protect individuals from having their email unlawfully or intentional intercepted, several exceptions potentially apply in the case of employee emails.
Employers often can access an employee’s email under the provider exception, business-use exception, and prior-consent exception to these federal laws. Employers should have clear policies in place with respect to the company’s email policy, to ensure compliance with federal and state laws.
At MacMain Leinhauser, our experienced Philadelphia business lawyers assist employers addressing the privacy concerns of their employees. With offices conveniently located in West Chester, Pennsylvania, we represent employers in Philadelphia, Chester County, and throughout Pennsylvania. To schedule a consultation, call 484-318-7106 or submit an online inquiry form.
School Districts and the Education of Undocumented Children
According to Education Week, one out of five children enrolled in public school in the United States speaks a language other than English in the home. This number is expected to double by 2030.
Despite the growing numbers of non-English speaking students across the country, many parents still spend their days in fear, wondering if their undocumented children will return home or be detained by Immigration and Customs Enforcement (ICE) in the classroom.
In July of 2018, the American Civil Liberties Union (ACLU) sued 12 New Jersey School Districts for requiring social security numbers or proof of valid immigration status as a requirement to enrollment. Although many of the districts claimed the allegations were false, the lawsuits bring up an important debate: Does the law imply that public school districts are not authorized to report undocumented students?
Although some argue that schools have a responsibility to report undocumented children, federal law has several stops in place to prohibit this. Administrators and other Pennsylvania school officials that have questions on this sensitive topic may be left in the dark on what actions could expose the district to a lawsuit. School officials with questions about student immigrant status should seek the guidance of an experienced education law attorney.
Should Schools Report Undocumented Children?
Although we have all heard stories of children being detained in and around schools, undocumented children are usually safe in their public school. In fact, ICE maintains a policy that immigration enforcement of any kind will not be conducted in an educational setting, on a school bus, or during an educational activity.
Does ICE’s policy imply that a school is a “safe zone” for undocumented children? The answer is, not necessarily. Schools, in some cases, may have the responsibility to report a student’s status to ICE; but doing so could be a violation of the Family Educational Rights and Privacy Act.
Additionally, the federal government prohibits school districts from:
- Denying any child access to an education
- Discriminating on the basis of race, color, or nation of origin
- Requiring paperwork to establish residency
- Questioning families about citizenship status
- Disclosing information found in student records
What Type of Information Can A School Collect?
School districts are not permitted to require any information that may identify a student’s immigration status for enrollment purposes. Pennsylvania Code §11.11(d) prohibits public schools from inquiring about a child’s immigration status through questioning or documentation requirements.
Additionally, educators and other school personnel that may have knowledge of a student’s undocumented status should refrain from disclosing this information to others.
If ICE surveillance or enforcement is discovered within an educational setting, school staff should direct the agents to the superintendent.
The following steps must be taken before allowing the agents to continue:
- Verify the agent’s identity
- Request to see a judicial warrant
- If no warrant is presented, contact an education law attorney
- Lodge a complaint with ICE
- Inform the student’s parents or guardians immediately
For more information on the complex laws surrounding the education of undocumented children, or for assistance with any matter related to education law, call MacMain Leinhauser at 484-318-7106 or contact us online.
Recent Title IX Proposals from Education Department
Title IX was enacted in 1972 to ban discrimination based on sex in those schools receiving Federal financial assistance (20 U.S.C. 1681(a)). For a party to prevail in a Title IX case, the school must have actual knowledge of the discrimination and be deliberately indifferent to it.
In addition, the harassment must be so severe and pervasive that it effectively denies the aggrieved student(s) access to an education.
Addressing Sexual Harassment in Schools
A relatively recent application of Title IX has been to address gender-based discrimination in schools, including sexual harassment and assault, harassment based on gender identity, and harassment based on non-conformance with stereotypical gender norms.
Victims are often intimidated into silence. They may do poorly in school or even drop out if the stress of maintaining that silence is too great.
Part of that intimidation arises from the investigative process. Victims weigh the pain of remaining silent against the prospect of having to prove the incident and face their attacker; they often choose silence.
There are statistical signs that failing to address sexual violence, including harassment, hurts school performance. On the other hand, when efforts are made to prevent and punish violations, measures of performance show improved individual and school-wide academic outcomes.
The Obama Administration Approach
The Obama administration sought to create a process more supportive of victims. A 2011 “Dear Colleagues Letter” sent to school administrations nationwide urged them to better investigate reports of sexual violence. The guidance specifically directed schools to evaluate cases using the “preponderance of the evidence” standard of proof, which is used to determine other civil rights violations, including discrimination. This is a lesser standard than the “beyond a reasonable doubt” standard used in criminal proceedings.
Advocates for victims approved of the change and believed they would help more victims of sexual violence come forward. Scholars were more equivocal, with some arguing the letter represented administrative overreaching, and others raising concerns that the accused were being unfairly disadvantaged.
Some school administrators complained the procedures were too complex and burdensome.
The Trump Administration Approach
Education Secretary DeVos has recently rescinded the guidance letter and proposed new rules to replace it. The rules would essentially eliminate prior Obama administration efforts to support victims.
- Redefine sexual harassment that schools have to investigate from unwelcome conduct of a sexual nature to unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive, that it effectively denies a person equal access to the recipient’s education program or activity.
- Changing the standard of proof so that schools would no longer be required to use the lesser standard. Schools would be given the option to require evidence of guilt beyond a reasonable doubt in order to find in favor of the accuser.
- Changing the investigative proceeding from one that discouraged schools from directly cross-examining the accuser, to one that requires schools to allow direct cross-examination.
- Changing the investigation from a formal one to allowing mediation and other informal procedures to address reports of sexual harassment.
Education law lawyers at The MacMain Leinhauser provide skilled representation to public and private entities regarding Title IX compliance. We offer legal advice, along with practical guidance on preparing compliant policies and training programs. Contact us at 484-318-7106 or complete our online form for more information. Our West Chester, Pennsylvania office serves clients in the greater Philadelphia area.
What Happens When a Nonprofit Dissolves?
Charitable organizations exist for all sorts of purposes. But each year, many of them must dissolve. Whether they dissolve because their mission is accomplished, or because they no longer have the funding to pursue their goals, or for whatever reasons the dissolution decision is made, there is a strict formula they must follow.
In certain ways, it is similar to the way a for-profit company dissolves; but there are additional factors involved. A nonprofit’s bylaws or articles of incorporation should include references about the dissolution process, and these require following.
However, many smaller nonprofits may not have included such instructions in their bylaws or articles of incorporation.
Federal and State Laws
When the nonprofit decides to dissolve, it must follow federal law, which applies to all such organizations, as well as the state law in which the organization is registered. State laws may vary, so it is important to obtain legal advice to ensure the dissolution conforms.
In most states, the board of directors must adopt a resolution and prepare a Notice of Intent to Dissolve. If the nonprofit has creditors, and most do, a Notice to Creditors is sent, informing them that the organization is dissolving. The state will have regulations on how long creditors have to file any claims with the nonprofit for money owed.
Some states may require the publication of a Notice to Creditors, as well as the Notice of Intent to Dissolve, in a newspaper in the county in which the nonprofit organization is headquartered.
Federal law requires that nonprofits distribute any assets held to another nonprofit organization upon the dissolution. No one on the board of directors, organizational members, or any private party may receive such assets. The nonprofit must file a final tax return with the IRS.
Considerable Planning Involved
Expect the dissolution of a nonprofit to involve considerable planning and to take a fair amount of time. The board must put together a planning group for the dissolution, which includes the president or executive officer. Before any type of in-depth planning gets underway for the dissolution, the board should hire legal counsel.
Once the board agrees on preparing a Notice of Intent to Dissolve, it must send articles of dissolution to either the secretary of state’s office, or that of the state Attorney General. Once that step is taken, the office in question issues a public notice.
Because of the federal law on asset distribution, the board must identify other nonprofits with a similar mission and inquire whether those organizations are interested in receiving the assets. Transfer of assets is complicated, and includes the need to inventory all such assets, including intellectual property. Many legal documents, such as contracts, are usually needed for this asset transfer.
The dissolution is not complete until all steps are finished, including the filing of the final Form 990 with the IRS. Even after the nonprofit has completed its day to day activities, some board action may prove necessary, even though the organization is no longer formally running.
If your nonprofit requires legal representation, contact the experienced nonprofit attorneys at MacMain Leinhauser. Call 484-318-7106 or contact us online to schedule a consultation. From our office in West Chester, our experienced attorneys serve clients throughout Chester County and Philadelphia.
Prison Changes Reduce Sickness
Exposure to hazardous drugs remains an occupational health risk for many prison employees. The number of suspected cases of prison staff exposure to toxic substances has risen dramatically, with 50 new cases reported in August 2018.
In response to the increasing number of prison employees alleging exposure to contraband drugs smuggled into prisons has resulted in illness, Pennsylvania correctional facilities have begun changing their inmate mail and visitation policies. Such prison changes appear to be reducing sickness in prison employees.
Exposure to Contraband Drugs
Prison employees can face exposure to contraband drugs which have been smuggled into prisons through the mail system. Deadly mixtures of heroin and fentanyl, synthetic marijuana (which goes by the street name K2), and the prescription opioid drug Suboxone pose significant health risks to prison employees.
Pages of letters or books can be soaked in these drugs to evade detection. Prison staff, including correctional officers, have sought medical treatment for exposure to these types of dangerous narcotics that have been smuggled into the prison.
Starting this past September, the Pennsylvania Department of Corrections instituted several new policies to address potential exposure to deadly narcotics. Prison visiting rooms have been staffed with additional employees. A temporary ban on vending machines and photo booths in prison visiting rooms remains in effect, since both vending machines and photo booths have been linked to inmate drug smuggling.
The processing of inmate mail also has changed significantly. Prison employees now open any legal mail in the inmate’s presence and make a photocopy of the mail, which the inmate is allowed to keep. Some prisons additionally provide color copies of photographs.
All original mail is secured for 45 days before it is destroyed. Any non-legal mail received by a state prison is forwarded to a post office box in St. Petersburg, Florida where it is opened, scanned, and forwarded by email to the addressed prison.
Pennsylvania prisons also have banned the direct shipment of books to inmates, and temporarily suspended third-party book donations, to eliminate the potential for illegal drug smuggling. Prisoners will be able to purchase pre-paid books directly from the prison or use e-readers to access the contents of books or magazines.
Other prison changes that will support the state’s continued efforts to reduce prison employee sickness related to drug exposure include the installation of new body scanners, ion scanners, and drone detection equipment. Prison employee advocacy groups seek even more protections for prison staff, including increased use of temporary lockdown procedures to thoroughly check cells for contraband drugs.
The state’s changes to existing prison policies is estimated to cost over $9 million.
Since the policy changes, complaints of exposure to toxic substances by staff have declined. There also has been a decrease in the number of drug overdoses by prison inmates.
However, not everyone is happy with the changes. The American Civil Liberties Union is preparing a legal challenge to the new mail handling system, which it believes violates the civil rights of prisoners due to the potential for breach of lawyer-client confidentiality.
The experienced employment attorneys at MacMain Leinhauser proudly provide defense services to prisons and other correctional facilities. To schedule an appointment with one of our experienced employment lawyers today, call us at 484-318-7106 or contact us online. With offices conveniently located in West Chester, Pennsylvania we handle defense matters throughout Philadelphia and Chester County, Pennsylvania.