Publications, Videos and Web Tutorials
---- listed alphabetically by general employment topic
Benefit Plan Reporting
Reporting and Disclosure Guide for Employee Benefit Plans issued by the U.S. Department of Labor Revised Oct. 2008
NACUA Notes: Paramour Favortism in the College Workplace (May 30, 2012)
NACUANOTES, March 9, 20011 How EEOC's New Genetic Anti-Discrimination Rules Impact Colleges and Universities
NACUANOTES, Nov. 3, 2010 Anticipating and Managing the Legal Risks of Academic Program Closures
Compliance Obligations Under Federal Non-Discrimination Statutes (Chart updated nov. 2009 to include GINA)
Staff Layoffs and Reductions in Force: Managing the Risks (12.15.08)
A publication by ACE, NACUBO, and UE, authored by Lawrence White and Martin Michaelson. This memo addresses both non-discrimination issues and contract issues, as well as other employment issues in the context of staff layoffs at colleges and universities.
Institutional Compliance with Federal Non-Discrimination Statutes Paper was presented on March 19-21, 2003 at the NACUA 2003 Spring Conference entitled: Civil Rights and Civil Suits: Discrimination Law 501 for Campus Counsel. Authored by: D. Frank Vinik, United Educators Insurance Risk Retention Group, Chevy Chase, MD with Margaret L. O'Donnell, Associate General Counsel, The Catholic University of America, Washington, D.C.
Faculty Employment Issues
Faculty in Times of Financial Distress, By Anne Franke for ACE
Monograph on Examining Governance, Exigency, Layoffs and Alternatives (June 2009)
Fair Labor Standards Act
FLSA: Professional Exemption for Computer Employees Dec. 14, 2006 Department of Labor Field Assistance Bulletin No. 2006-3. The gist of the bulletin is that the exemptions under Section 13(a)(1) of the FLSA and 13(a)(17) for computer employees are not meant to be mutually exclusive, but rather 13(a)(17) (added in 1996) was meant to be an additional express statutory basis for the computer employee exemption. See 29 CFR 541.400 et seq. for the general rules for computer employees.
Foreign Employment and Immigration Issues
Winston and Strawn Recent Developments in EU Employee Data Privacy Law 2007 Discusses issues on collection and retention of data for employees in the European Union. The Privacy Directive may affect how U.S. employers with employees abroad handle personal data of employees.
Social Media and the Workplace: Managing the Risks (Feb. 2010) A Jackson Lewis monograph that summarizes relevant laws on employee use of social media such as Facebook and blogs, and possible employer and employee liability for misuse, both intentional misuse and negligent misuse.
United States v. Heckenkamp, No. 05-10322 and O5-10323 (April 5, 2007, C.A. 9)
This decision addresses whether a remote search of computer files on a hard drive by a network administrator was justified under the "special needs" exception to the Fourth Amendment. The case law would apply directly only to governmental actors such as public universities, however the case is of interest to private universities as well due to the discussion of the computer policy at the University of Wisconsin-Madison, and whether or not a reasonable expectation of privacy was created by the language used in the policy.
A student at the university (who had previously worked for the computer department and had been terminated for unauthorized computer activity) was in the process of hacking in to the computers of a corporation in San Diego. In tracing the intrusion at the request of the company, the system admininstrator at UW noticed that the student in question had gained access to the university's Mail2 server. Access at one IP address was denied to protect the university system, but the student in question simply logged on at another IP address. The university police and the system administrator went to the dorm room in question and disconnected the network cord from the computer. The student Heckencamp authorized the administrator to make a copy of his hard drive. A search warrant was issued the next day, and the computer was seized pursuant to that warrant. In the criminal case against him, the student made motions to suppress the evidence gathered from (1) the remote search of his computer, (2) the image taken of his computer's hard drive, and (3) the search conducted pursuant to the FBI's search warrant. In addressing this motion, the court noted as follows:
As a prerequisite to establishing the illegality of a search under the Fourth Amendment, a defendant must show that he had a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). An individual has a reasonable expectation of privacy if he can "'demonstrate a subjective expectation that his activities would be private, and he [can] show that his expectation was one that society is prepared to recognize as reasonable.'
***The salient question is whether the defendant's objectively reasonable expectation of privacy in his computer was eliminated when he attached it to the university network. We conclude under the facts of this case that the act of attaching his computer to the network did not extinguish his legitimate, objectively reasonable privacy expectations. ****
However, privacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that the systems administrators may monitor communications transmitted by the user. United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002); United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000).
In the instant case, there was no announced monitoring policy on the network. To the contrary, the university's computer policy itself provides that "[i]n general, all computer and electronic files should be free from access by any but the [*13] authorized users of those files. Exceptions to this basic principle shall be kept to a minimum and made only where essential to . . . protect the integrity of the University and the rights and property of the state." When examined in their entirety, university policies do not eliminate Heckenkamp's expectation of privacy in his computer. Rather, they establish limited instances in which university administrators may access his computer in order to protect the university's systems. Therefore, we must reject the government's contention that Heckenkamp had no objectively reasonable expectation of privacy in his personal computer, which was protected by a screensaver password, located in his dormitory room, and subject to no policy allowing the university actively to monitor or audit his computer usage.
Although a reasonable expectation of privacy existed, the court found the search was justified under the "special needs" exception to the warrant requirement, which means a need beyond the normal need for law enforcement, making the warrant and probable cause impracticable. See also the April 9 Inside Higher Ed article Defining Privacy and its Limits for a summary of the case, and comments from Steve Worona and Tracy Mitrano on the case.
CUA Policies (see employment policies on bar on left)
Student Employment Issues
NACUANOTES June 2006 Non-Solicitation Rules and Union Organizing
updated 7/2/10 mlo