. . . A Potential Headache for Employers of Younger Workers

Retail, entertainment, hospitality and other industries that traditionally employ large numbers of younger workers may soon get dragged into criminal proceedings because of “sexting” by their younger workers. Florida has joined 20 other states — Alaska, Arkansas, California, Hawaii, Indiana, Iowa, Kansas, Mississippi, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, and Guam — which have all enacted similar legislation addressing teen sexting. Because employees frequently transmit these materials using their employer’s networks, criminal prosecutions under these laws may require employers to respond to discovery requests and subpoenas, or permit searches pursuant to warrants obtained by law enforcement authorities, which, in turn, may unexpectedly trigger disciplinary proceedings.

On June 21, 2011, Florida Governor Rick Scott signed into law H.B.75/S.B. 888. Under this law, which will take effect beginning October 1, 2011, a minor (anyone under the age of 18) commits the criminal act of “sexting” if he or she knowingly uses a computer, cell phone, or other transmission device (1) to transmit or distribute to another minor a photograph or video of any person which depicts nudity; or (2) possesses such photograph or video which was transmitted or distributed by another minor, unless the photograph was unsolicited, the minor took reasonable steps to report the photograph or video to their legal guardian, school official, or law enforcement, and the minor did not transmit or distribute the video or photograph to a third party. A minor’s first offense is considered noncriminal and is punishable by 8 hours or community service or a $60 fine. The minor’s second offense is a misdemeanor in the first degree, punishable with imprisonment not to exceed one year or a $1,000 fine; and the minor’s third offense is a felony of third degree, punishable with up to five years’ imprisonment or a $5,000 fine.

Of course, sexting is not only an issue for minors. It is fast becoming an easy and well-utilized mechanism for sexual and other workplace harassment. Accordingly, employers should review and update their anti-harassment policies to include a prohibition of harassment via e-mail, text messaging, or use of social networking sites; and they should review their electronic communications policies to include a prohibition against using any employer-provided electronic device to transmit or retain any sexually suggestive or explicit pictures, texts, videos or any other derogatory material regarding race, ethnicity, age, disability, religion, or any other protected category. Employers should also educate and train employees on the revised policies and continue to enforce all policies in a fair and consistent manner. At the same time, employers should remain mindful of any limitations on such policies (as written or as applied) that may be imposed under the National Labor Relations Act.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.