SSA Bans ALJs From Conducting Online Searches About Claimants

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Published on Monday, 07 May 2012 06:25

The Social Security Administration (SSA) has advised its administrative law judges (ALJs) that they may not use information obtained from online sources when deciding cases, a tool used by some judges to uncover fraudulent claims. SSA officials said ALJs cannot trust information posted online, and the process of searching ror information could compromise protected private information. The SSA’s ban covers all Internet sites, including social media sites such as Facebook.  Sen. Tom Coburn, an Oklahoma Republican, disagreed with the SSA’s decision, and in a letter to the Social Security Commissioner stated that “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled.”

The controversy highlights the ongoing questions about the information individuals make available about themselves online, and how others, such as employers and government agencies may use that information for such things as hiring decisions, disciplinary procedures, and uncovering fraudulent claims. Social Security officials advised that they are not opposed to using information obtained from the Internet, but they do not want the “front-line deciders” searching for such information. Instead, such online searches should be a function for fraud investigators. According to Kia S. Green, a spokeswoman for the agency, “Adjudicators should do what they are trained to do — review voluminous files to determine eligibility for disability benefits. Office of Inspector General fraud investigators should do what they are trained to do — vigorously follow up on any evidence of fraud.” Read More.

U.S. Supreme Court Holds That a Private Individual Temporarily Working for the Government is Entitled to Qualified Immunity From a Lawsuit.

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Published on Wednesday, 18 April 2012 15:24

The U.S. Supreme Court has decided that an individual hired by the government to do its work is entitled to immunity from lawsuits, even though the individual works for the government on something other than a permanent or full-time basis. The case involves Nicholas Delia, a firefighter employed by the City of Rialto, Califor­nia. Delia missed 3 weeks of work after becoming ill on the job due to being exposed to a toxic spill. Suspicious of Delia’s extended absence, the City hired a private investigation firm to con­duct surveillance on him. When Delia was seen buying fiberglass in­sulation and other building supplies, the City began an internal af­fairs investigation. It hired Steve Filarsky, a private attorney, to interview Delia. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To veri­fy Delia’s claim, Filarsky asked Delia to allow a fire department offi­cial to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials. Delia brought an action against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified im­munity. The Court of Appeals for the Ninth Circuit affirmed with re­spect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee. However, on appeal, the U.S. Supreme Court held that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from a lawsuit. Read More.

Senators Ask EEOC and DOJ to Investigate Employer Demands for Social Media Passwords

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Published on Wednesday, 04 April 2012 05:26

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have requested that the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) launch a federal investigation into the growing trend of employers demanding that job applicants turn over their user names and passwords for social networking and email websites in order to gain access to personal information like private photos, email messages, and biographical data. According to recent reports, a growing number of employers across the country are demanding the information from job applicants as part of the interview  process – including photos and personal messages not shared with anyone else. Blumenthal and Schumer contend that this practice represents an intrusion into personal privacy that could make it more difficult for individuals to get jobs, and it could also expose employers to discrimination claims. According to Blumenthal, "I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks…A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.” Blumenthal and Schumer are also drafting legislation that would seek to fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job. The senators are also seeking additional legal opinions, from both the EEOC and DOJ to determine what protections currently exist and what additional protections are necessary. Read More.  

Employers Warned About Demanding Access to Employees' Social Media Accounts

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Published on Wednesday, 28 March 2012 03:26

Facebook Chief Privacy Officer, Erin Egan, has posted a note warning that the social networking company could “initiate legal action” against employers who demand that prospective or current employees provide the employers with access their Facebook account. In addition, lawmakers in several states have either ontroduced, or indicated that they will introduce, bills to prohibit companies from scrutinizing employees by demanding access to their private social media accounts. Specifically, Leland Yee, a California state senator, introduced legislation that would prohibit companies in the state from soliciting Facebook passwords from job applicants. Lawmakers in Illinois and Maryland are also considering similar legislation. According to Yee, “Employers can’t ask in the course of an interview your sexual orientation, your age, and yet social media
accounts may have that information…Employers have legitimate questions about a person’s job performance, but they can get that information the regular way, without cutting corners and violating people’s privacy.” Egan advised in a Facebook post that the social networking company has observed “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles…We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do…But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.”

The issue heated-up this week after the Associated Press reported that employers are increasingly asking job applicants to view their social media accounts, regardless of whether that content is shared with the public. For example, the Maryland Department of Corrections asks job applicants to browse through their own Facebook accounts with an interviewer present; the ACLU called the practice “an invasion of privacy.” Read More.