NWI president Lewis Maltby addressed 150 appellate court judges at the July 16 meeting of the Foundation for Judicial Excellence regarding employment privacy.

Judges have consistently held that employees have no right of privacy in company owned computers. Maltby pointed out that this rule, while perhaps fair for office computers, makes less sense when applied to laptop computers the employer encourages employees to take home with permission to use for personal matters.

A rule that “ownership trumps all” also denies employers access to information computers owned by the employee, even when there is reason to believe the employee is misusing company information.

Basing privacy law on ownership also denies employers access to messages transmitted by wireless devices, since the vast majority of the system is owned by the service provider.

Maltby urged judges to base privacy decisions on whether an employer has a legitimate interest in the message, not on whether it owns the hardware by which the message was transmitted.

This was the first time that the judges had been presented with this perspective and many found it persuasive.

Liza Concepcion

The company promised her a free cell phone if she signed up for its wireless service.  Then they charged her sales tax on the “free” phone.  Concepcion couldn’t afford to sue; just talking to a lawyer would have cost her more than she was cheated out of.  However, Concepcion was only one of thousands that AT&T had fooled.  Collectively, they had been defrauded of millions.  The law firm of Hulett Harper Stewart filed a class action on behalf of all the victims.

Then Concepcion entered a hall of mirrors.  First, she was told that her contract with AT&T required her to take her claim to arbitration.  That didn’t seem so bad; the arbitration system looked fair and would probably be faster than going to court.

Then the second shoe dropped.  Her contract with AT&T also said that she couldn’t bring a class action suit in arbitration.  Since this would mean no one could sue, her lawyers challenged the contract in court.  When the court ruled against them, they appealed all the way to the Supreme Court.

On April 27, 2011, the Supreme Court upheld the AT&T contract.  Liza Concepcion and the other victims were caught in a catch-22 and AT&T was home free.  Now that other corporations are aware of this new “get out of jail free” card, we can be sure they’ll use it again.

Mica’s Transportation and Infrastructure Committee held hearings last week at which the TSA was scolded for not having the biometric version of its security program up and running.

There’s a good reason the system isn’t installed; it’s not ready.  The TSA itself says the system is still being debugged and recognizes the unique problems associated with biometric technology..  So do the federal government’s own technology experts.

Biometric mistakes can be costly.  Just ask Brandon Mayfield, the Oregon lawyer whose fingerprints the F.B.I. mistakenly identified as matching prints from the Madrid subway bombing.  He was taken from his home in handcuffs, strip-searched, and put in prison for two weeks before the Spanish police convinced the F.B.I. they had the wrong man.

The TSA hasn’t exactly been reluctant about introducing controversial new technology.  Thanks to them, we now have to undergo an electronic strip-search when we get on an airplane.  Aside from the abuse of the machine images, we recently learned that these body imaging systems expose passengers to possibly dangerous levels of radiation that TSA wasn’t “expecting”.

The TSA is already giving privacy and safety short shrift in its rush to install new technology.  Do we really need Congress pushing TSA to move faster?

But there is also grave risk to human rights.  J. Edgar Hoover dreamed of creating files on every political dissident in the country.  F.B.I. agents photographed anti-war rallies, infiltrated civil rights groups, and even wiretapped Dr. Martin Luther King, Jr.

Hoover may be gone, but his legacy remains.  Law enforcement agencies still collect information about critics of American policies under the banner of national security.  So far, this effort has had limited success.  Taking a protester’s picture at a rally doesn’t usually tell someone the identity of that individual.

But if employers or government agencies were to adopt facial recognition (which is only a matter of time), everything would change.  The F.B.I. and C.I.A. would now know the identity of every political dissident in America.  Anonymous political protest would be gone forever.  Furthermore, the F.B.I. recently started a $1 billion dollar project to develop this technique and Tampa Bay Police Department used this technology during the super bowl.

Even worse, the government could use biometrics to track those it deems suspicious virtually 24 hours a day.  If you have access to a secure setting the requires you to verify your identity via fingerprint, iris or face, a record of your actions is made every time.  As biometrics spreads, and our ability to network computers increases, it could be used to make a record of virtually everywhere you go. The airline industry is already on board.

These nightmares do not have to occur.  The National Workrights Institute recently led a blue ribbon taskforce of privacy experts, biometric scientists, unions, employers, and government officials that created guidelines allowing the use of biometrics for greater security where it is needed without undermining human rights.

One of the core principles is that biometric information should not be stored in data bases.  Instead of comparing your iris to a biometric image in a data base, the system could compare your iris to a biometric imprint on a card.  Without data bases, the risk of identity theft is greatly reduced.

Another core principle is that biometric checkpoints should not create records.  In most cases, all that is needed is the assurance that everyone who entered a secure area was authorized to do so.  There is no need to keep records that can compromise privacy.

NWI has begun meeting with Congress and other decision makers to educate them about the dangers of biometrics and convince them to follow the guidelines.  Check out the complete guidelines below.

• NWI Guidelines for Responsible Use of Identity Management Systems.

The National Workrights Institute examined five of the largest and best-publicized recent employment class actions to see which of these descriptions of class actions is most accurate. For each case, we asked the following questions:
Did the case have a strong factual basis?
How much of the recovery did the plaintiffs’ attorneys receive?
Would the employees have been able to bring their claims without class actions?
Class Action-PDF

Smokers now face another risk from their habit: it could cost them a shot at a job.
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More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living.

The policies reflect a frustration that softer efforts — like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers — have not been powerful-enough incentives to quit.

The new rules essentially treat cigarettes like an illegal narcotic. Applications now explicitly warn of “tobacco-free hiring,” job seekers must submit to urine tests for nicotine and new employees caught smoking face termination.

This shift — from smoke-free to smoker-free workplaces — has prompted sharp debate, even among anti-tobacco groups, over whether the policies establish a troubling precedent of employers intruding into private lives to ban a habit that is legal.

“If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences,” said Dr. Michael Siegel, a professor at the Boston University School of Public Health, who has written about the trend. “Unemployment is also bad for health.”

Smokers have been turned away from jobs in the past — prompting more than half the states to pass laws rejecting bans on smokers — but the recent growth in the number of companies adopting no-smoker rules has been driven by a surge of interest among health care providers, according to academics, human resources experts and tobacco opponents.

There is no reliable data on how many businesses have adopted such policies. But people tracking the issue say there are enough examples to suggest the policies are becoming more mainstream, and in some states courts have upheld the legality of refusing to employ smokers.

For example, hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas, among others, stopped hiring smokers in the last year and more are openly considering the option.

“We’ve had a number of inquiries over the last 6 to 12 months about how to do this,” said Paul Terpeluk, a director at the Cleveland Clinic, which stopped hiring smokers in 2007 and has championed the policy. “The trend line is getting pretty steep, and I’d guess that in the next few years you’d see a lot of major hospitals go this way.”

A number of these organizations have justified the new policies as advancing their institutional missions of promoting personal well-being and finding ways to reduce the growth in health care costs.

About 1 in 5 Americans still smoke, and smoking remains the leading cause of preventable deaths. And employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.

“We felt it was unfair for employees who maintained healthy lifestyles to have to subsidize those who do not,” Steven C. Bjelich, chief executive of St. Francis Medical Center in Cape Girardeau, Mo., which stopped hiring smokers last month. “Essentially that’s what happens.”

Two decades ago — after large companies like Alaska Airlines, Union Pacific and Turner Broadcasting adopted such policies — 29 states and the District of Columbia passed laws, with the strong backing of the tobacco lobby and the American Civil Liberties Union, that prohibit discrimination against smokers or those who use “lawful products.” Some of those states, like Missouri, make an exception for health care organizations.

A spokesman for Philip Morris said the company was no longer actively working on the issue, though it remained strongly opposed to the policies.

Meghan Finegan, a spokeswoman for the Service Employees International Union, which represents 1.2 million health care workers, said the issue was “not on our radar yet.”

One concern voiced by groups like the National Workrights Institute is that such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding. The head of the Cleveland Clinic was both praised and criticized when he mused in an interview two years ago that, were it not illegal, he would expand the hospital policy to refuse employment to obese people.

“There is nothing unique about smoking,” said Lewis Maltby, president of the Workrights Institute, who has lobbied vigorously against the practice. “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?”

Many companies add their own wrinkle to the smoking ban. Some even prohibit nicotine patches. Some companies test urine for traces of nicotine, while others operate on the honor system.

While most of the companies applied their rules only to new employees, a few eventually mandated that existing employees must quit smoking or lose their jobs. There is also disagreement over whether to fire employees who are caught smoking after they are hired. The Truman Medical Centers, here in Kansas City, for example, will investigate accusations of tobacco use by employees. In one recent case a new employee returned from a lunch break smelling of smoke and, when confronted by his supervisor, admitted that he had been smoking, said Marcos DeLeon, head of human resources for the hospital. The employee was fired.

Even antismoking advocates have found the issue tricky to navigate. The American Lung Association, the American Cancer Society and the World Health Organization do not hire smokers, citing their own efforts to reduce smoking.

But the American Legacy Foundation, an antismoking nonprofit group, has warned that refusing to hire smokers who are otherwise qualified essentially punishes an addiction that is far more likely to afflict a janitor than a surgeon. (Indeed, of the first 14 applicants rejected since the policy went into effect in October at the University Medical Center in El Paso, Tex., one was applying to be a nurse and the rest for support positions.)

“We want to be very supportive of smokers, and the best thing we can do is help them quit, not condition employment on whether they quit,” said Ellen Vargyas, chief counsel for the American Legacy Foundation. “Smokers are not the enemy.”

Taking a drag of her cigarette outside the University of Kansas School of Nursing, just beyond the sign warning that smoking is prohibited on campus, Mandy Carroll explained that she was well aware of the potential consequences of her pack-a-day habit: both her parents died of smoking-related illnesses. But Ms. Carroll, a 26-year-old nursing student, said she opposed any effort by hospitals to “discriminate” against her and other smokers.

“Obviously we know the effects of smoking, we see it every day in the hospital,” Ms. Carroll said. “It’s a stupid choice, but it’s a personal choice.”

Others do not mind the strict policy. John J. Stinson, 68, said he had been smoking for more than three decades when he decided to apply for a job at the Cleveland Clinic, helping incoming patients, nearly three years ago.

It turned out to be the motivation he needed: he passed the urine test and has not had a cigarette since. “It’s a good idea,” Mr. Stinson said.

Alain Delaquérière contributed research.

In most labor disputes, it’s easy to pick sides. Just support the little guy. It’s easy to root for a worker trying to raise a family on $30,000 a year, who is struggling to get a 5% raise from a CEO that makes $5 million a year.

But the looming NFL lockout is not your typical labor dispute. The NFL owners are planning to shut down professional football when the contract with the players runs out in March unless the players’ union, the National Football League Players Association (NFLPA), agrees to give the owners a larger share of the revenue.

The owners claim that they can’t afford to continue under the current contract terms. According to NFL Commissioner Roger Goodell (who works for the owners), profits are down sharply since the players receive 59% of the revenue under the current agreement. Goodell maintains that the owners’ 41% isn’t enough make a profit.

DeMaurice Smith, head of the players’ association tells a different story. One where the owners are making huge profits and simply want a bigger slice of the pie.

NFL players are not Joe six pack. With an average salary of $1 million per year, it’s hard for the average fan to feel sympathy for them. Yet, the owners are even richer. The average value of an NFL team is over $1 billion dollars. While most of us watched our 401(k)s take a beating by the 2008 market crash, the NFL owners have the luxury of watching the value of their team double every 5 years.

The simple truth is that football is a Big Business with partners that disagree how to divide the revenue. I doubt any of us know how to divide a revenue this great. You need to be a CPA just to comprehend the numbers. The players get 59% of the revenue, but only after the owners take $ 1 billion off the top. And that’s just the beginning of the complexity. Players make huge salaries, but not for long. After 5 years, most NFL players are back on the streets competing for jobs with everyone else. Often they face lifetime medical problems, from the aftermath of multiple concussions to servere knee problems. How much is a player entitled to for their high risk occupation?

I have no idea.

But… I know how reasonable business people operate. When I ran a manufacturing company and we had a bad year, I showed the employees the books so they could see for themselves and asked everyone (including me) to take a pay cut so we could all keep our jobs. The NFL owners aren’t showing anyone the books.

If the NFL owners really need a bigger share of the pie, the answer is simple; stop playing power games, open the books and let the players (and the public) see the numbers for themselves. People who are telling the truth have no need for secrecy.

The National Workrights Institute opposes right to work laws.  Despite their misleading title, right to work laws do not create a right to work, nor do they protect workers from being fired for unjust reasons.

What right to work laws actually do is allow workers in union shops to accept the benefits of unionizing without paying their share of the costs.  The National Labor Relations Act requires unions to represent all employees in the bargaining unit.  All workers in the unit receive the increased wages and benefits negotiated by the union.  All workers receive protection from unjust discharge under the collective bargaining agreement and representation in arbitrations challenging unjust terminations at no charge.  It is only fair that all workers who receive these benefits share the costs.  This is what the NLRA provides.

State right to work laws, which are permitted by the NLRA, change this arrangement.  Under such laws, workers are permitted to receive the benefits of the collective bargaining agreement without paying their share of the costs.  This forces fellow employees to pay more than their share to make up the loss.  Such free riding (it ought to be called freeloading) should not be encouraged by state legislatures.

Right to work laws also weaken unions by forcing them to provide services to workers without being reimbursed for their costs.

This is exactly what proponents of right to work laws want.  The champions of right to work laws are not supporters of workers’ rights.  The National Right to Work Committee was founded in 1954 by a group of ultra-conservative businessmen, including Whitford Blakeney, one of the best known anti-labor lawyers of his time, whose career included representing J.P. Stevens textile company, whose campaign against unionization was found by the National Labor Relations Board to include “excessive and egregious unfair labor practices”.  To this day, the NRTWC functions as an arm of organized business.  It did not support civil rights laws protecting workers from racial and gender discrimination.  It does not support increasing protection against retaliation for workers who try to organize.  It does not support protecting workers’ lives by improving enforcement of occupational safety and health laws.  In fact, the Committee’s leadership works closely with those who oppose improving the rights of workers.

Advocates of right to work laws claim that such laws protect workers’ right to freedom of association by preventing them from being forced to join unions against their will.  This is not true.  Workers already have this right under the National Labor Relations Act.  Section 7 of the Act prohibits discrimination against any employee because they have chosen to join or not join a union.  No new state law is needed to protect workers in this area.  Right to work laws allow workers to accept the benefits of union membership without sharing the cost.  This is a right no one should have, the right to get something for nothing and make others pay the bill.