By Robert Fitzpatrick

As we have noted in several previous blogs on this site, a number of states have either passed or are considering legislation to prevent employers from demanding access to the social media accounts of employees or job applicants.  The federal government recently joined this trend.

Congressman Engel (D-NY) introduced on April 26, 2012, H.R. 5050, the so-called “Social Networking Online Protection Act (‘SNOPA’),” which, if passed, would make it unlawful for an employer to “require or request that an employee or applicant for employment provide the employer with a username, password, or any other means for accessing a private email account of the employee or applicant or the personal account of the employee or applicant on any social networking website; or to discharge, discipline, discriminate against in any manner, or deny employment or promotion to or threaten to take any such action against any employee or applicant for employment because” the employee refuses to provide the information or the employee has filed a complaint or testified about the matter.  The proposed legislation defines a “social networking website” as any internet service, platform, or website that provides a user with a distinct account – (A) whereby the user can access such account by way of a distinct username, password, or other means distinct for that user; and (B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.”  These prohibitions would be enforced by the United States Department of Labor.  The Secretary of Labor could bring a civil action seeking injunctive relief and where appropriate, employment, reinstatement, promotion, and the payment of lost wages and benefits.  There is no fee-shifting provision.  The Secretary of Labor is empowered to assess civil penalties not to exceed $10,000, taking into account the previous record of the employer and the gravity of the violation.  The civil penalty collection provisions are the same as those codified in the Migrant and Seasonal Agricultural Worker Protection Act.  See 29 U.S.C. 1853.  The proposed legislation does not provide a private cause of action.  In other words, enforcement is exclusively in the hands of the Secretary of Labor. 

This week, Senator Richard Blumenthal (D-CT) and Representative Martin Heinrich (D-NM) introduced the “Password Protection Act of 2012”, a copy of which can be found on Senator Blumenthal’s website.  This bill, which we will analyze in greater detail next week, provides for fines for employers who violate the proposed act.

In Evans v. MassMutual Fin. Group, 2012 U.S. Dist. LEXIS 52521 (W.D.N.Y. April 13, 2012), the Court, in denying the defense motion for summary judgment, discussed the Uniformed Services Employment and Reemployment Rights Act’s (USERRA) so-called “escalator principle.”  This term was borrowed from a Supreme Court decision under the predecessor statute to USERRA.  See Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 284-85 (1946) (“The returning veteran does not step back on the seniority escalator at the point he stepped off.  He steps back on at the precise point he would have occupied had he kept his position continuously during the war.”)  The case involved a returning national guardsman who contended that he should be reinstated as a manager; whereas the employer contended that he should be reinstated as a sales agent.  The dispute was presented to the Court in the context of a motion for summary judgment.  The Court found that there was a genuine issue of material fact as to whether, prior to his deployment, the plaintiff was a manager or a sales agent. 

After denying summary judgment on that question, the Court turned to the plaintiff’s alternative argument in which plaintiff contended that, even if he was not a sales manager prior to his deployment by the national guard, there was a “reasonable certainty” that he would have progressed to that position had he not been deployed, and had he remained employed during that time at MassMutual.  This argument called upon the court to consider the so-called “escalator principle” contained in USERRA.  That statute, in section 4316(a), provides that a returning service member is entitled to “the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.”  The U.S. Department of Labor regulations state that this statutory language means that “[a]s a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.”  20 C.F.R. § 1002.191.  See Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 175 (2d Cir. 2011) (discussing the “escalator principle”); See also Bagnall v. City of Sunrise, Florida, 2011 U.S. Dist. LEXIS 94565 (S.D. Fla. August 24, 2011). 

In concluding his opinion, Judge Larimer discussed the important difference between section 4312 of USERRA, the reemployment guaranty provision of the act, with section 4311, the anti-discrimination provision of the act.  The Court noted that, while section 4311’s anti-discrimination language requires a showing of discriminatory intent, section 4312 requires no showing of intent.  The Court held that section 4312 is simply a guaranty of reemployment, and plaintiff need not show that his military status was a motivating factor in MassMutual’s alleged refusal to rehire him as a sales manager upon his return from military service.  Finally, on this point, Judge Larimer noted the contrary holding from the Sixth Circuit in Curby v. Archon, 216 F.3d 549, 556-57 (6th Cir. 2000), finding that the Curby analysis had been and should be rejected as erroneous.

Practitioners should keep in mind that the escalator can not only ascend, but also descend.  In other words, if the returning service member would have been demoted had s/he remained continuously employed, then reinstatement would be to the lower position, not the position s/he held prior to deployment.  Federal employees, it should be noted, are exempted from the descending elevator.  See 5 C.F.R. § 353.209(a).

USERRA requires prompt reemployment.  See 38 U.S.C. § 4301.  See also Coffman v. Chugach Support Services, Inc., 411 F. 3d 1231, 1234 (11th Cir. 2005).  While USERRA does not define “prompt reemployment,” the regulations (20 C.F.R. § 1002.181) provide that, absent special circumstances, reemployment should occur within two weeks of the employee’s application for reemployment.