City Requests Social Site Information from Applicants
It’s long been the case that employers check out the social websites of potential applicants to see the real nature of the people they are considering hiring. But trying to view an applicant’s MySpace listing, for example, can be problematic because there might be multiple listings under a given name, and the listing may be not be available for public viewing.
City officials in Bozeman Montana have decided to stop being sneaky about the whole process. When applying for a job there, applicants will find the following question on the employment form:
"Please list any and all current personal or business Web sites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc." The form also asks for the user names and passwords for all the requested sites.
Of course, organizations such as the ACLU are all up in arms, claiming privacy violations, but the desire of the City is understandable. As has been reported here and at my Internet Defamation Blog, people sometimes reveal amazing things in their blogs. I’ve reported a case involving a nurse and another involving a teacher where their blogs revealed some seriously dark sides and the employees suffered job actions as a result. No one balks when an applicant for the police department is seriously vetted, including reviews of banking records and interviews with friends and former employers. It should not be surprising, therefore, that a city would want access to this truly revealing information.
I offer no opinion on the matter, beyond to say there is just something troublesome about a government agency wanting personal access codes. However, it is also a bit disingenuous to claim an invasion of privacy when the employer is seeking only information that the applicant has chosen to publicly publish. In essence, any objecting applicant is saying that they have the right to reveal only the face they choose to reveal, and that the employer is not entitled to see the face that is shown to others.
Incidentally, the City says that applicants can refuse to provide the requested information, and that will not be held against them.
UPDATE: Responding to the public outcry, the City of Bozeman backpedaled -- slightly. In a press release, the City Manager announced that the City, for the time being, would not request user names and passwords from job applicants. Conspicuous in its absence is any mention that the city will stop requesting information regarding non-password protected sites, or that it will not review those sites.
Again, I think it was a bit much to request user names and passwords, but I applaud the City of Bozeman for being so upfront about the fact that, as an employer, it will seek out these social sites as a part of its background check.
Crunchberries Provide Proof Positive That the Legal System Works
Attracted by the nefarious Cap'n Crunch, calling out to her from his cereal box, holding a spoon chock full of crunchberries, Janine Sugawara bought said cereal and for four years continued to buy and consume it, all the while believing she was eating healthy fruit.
When she somehow came to realize that there was no fruit in Cap'n Crunch, she sued on behalf of herself and all the other consumers that believed that the cereal contained anti-oxidant rich crunchberries. She contended that the entire Cap'n Crunch presentation was likely to confuse consumers, especially given the way the Captain is aggressively "thrusting a spoonful of crunchberries at the prospective buyer." (See photo.)
On a motion to dismiss, Judge Morrison England, Jr., sitting in the Eastern District of California, ruled:
"In this case . . . while the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world."
Plaintiff's are usually given at least one opportunity to amend a complaint to address any deficiencies, but in this case the judge dismissed without leave to amend, concluding there was no way this case could be saved. As the court put it, "the survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense." The only sad part of this otherwise humorous case is that plaintiff was able to find counsel willing to ignore that common sense.
Go here for more information, and here for the complete opinion by the court.
Appeal Court Says, "Hold the Foam" on Starbucks Tipping Case
Some plaintiffs attorneys received a huge pay cut today, after the California Court of Appeal reversed an $105 million judgment against Starbucks.
The case involved the ever-present tip jar that sits by the register at your favorite Starbucks. It is the procedure of Starbucks, like most every other business that has a tip jar, to split up the tips among all those that were working, including the “supervisors.” As we analyze this case, keep in mind that a “supervisor” at a Starbucks is most likely just another barista that has been there slightly longer than the other baristas, and as a result is put in charge. It’s not like this is someone at the corporate office.
Enter California Labor Code section 351, which states that no “employer or agent” shall take any part of the gratuity “left for an employee by a patron.” An “agent” is defined by section 350(d) as anyone who can hire or fire, or who controls the acts of the employees.”
These rascally class action attorneys thought they had Starbucks by the beans. First they created a somewhat fictional perception of the role of the “supervisors” and spent a great deal of time in the case arguing that they were agents of the employer because they directed the conduct of the other employees. From that viewpoint, it was easy to claim that Starbucks had violated section 351 by including the supervisors in the tip distribution. Judge Patricia Cowett in San Diego Superior Court must have skipped her coffee that day and bought that reasoning and awarded the class of 100,000 baristas $86.7 million, which grew to $105 million with interest.
But the Court of Appeal said, “hold the foam.” The flaw in the logic is obvious (understanding that I always have perfect 20-20 hindsight with court decisions). When I sit down at a restaurant, enjoy my meal and the service, and then leave a tip, I am leaving a tip for my specific server. However, when I order a latte at a Starbucks and drop my change into the tip jar, who am I tipping? I'm certainly not intending to tip only the barista. At that point, I don’t even know who is going to prepare my beverage (or even if it will be tip worthy). It is probably far more likely that I'm tipping the friendly cashier that accurately took my order and retrieved my scone. Or perhaps my intent was to tip the person that cleaned the washroom where I washed my hands before stepping up to the counter. As you can see, in the case of a community tip jar, we can never truly know who generated the tip, so it makes much more sense to assume that it is my intent to tip everyone working there, who have all joined to make this such a special coffee experience, from the supervisors down. Indeed, the Court of Appeal concluded that the purpose behind section 351 was to “prevent a fraud on the tipping public” by prohibiting an employer from giving a tip left for a server to someone not intended by the tipper. There is no such fraud with the Starbucks tip jar.
Further, the “supervisors” are not “agents” of the employer in the sense meant by section 350. The supervisors are not there to grab the tips on behalf of a greedy Starbucks organization; they are just more experienced baristas, probably earning 50 cents per hour more and completely entitled to share in those tips.
The ruling of the Court of Appeal reversed the judgment.
