Week in Review

Your company holiday party can be added to the list of things impacted by technology. In addition to the risk of alcohol-induced harassment, injuries, or property damage, employers should be mindful that technology and mobile devices permit employees to easily broadcast holiday party activities through social media. Of course, company parties are not the only thing changed by technology in the workplace. Technology has also transformed workplace communication, and, to make this a positive change, employees must use the right technology in the right ways. Outside the workplace, technology is even transforming the way we find holiday light displays by allowing us to use apps to locate the best holiday lights.

Technology and the Workplace
Hey, Your Company Gathering Is on Facebook! (TLNT)
Facebook Posts by Police Officer Not Protected by the 1st Amendment (Delaware Employment Law Blog)
How Technology Has Changed Workplace Communication (Forbes)
How Your IT Workers Are Putting Your Company at Risk (Mashable)
The Path to Happy Employment, Contact by Contact on LinkedIn (NY Times)
BYOD Policy and Best Practices for When Employees Leave (i-Sight Blog)

Technology and the Law
SCOTUS to review standard for software patents (ABA Journal)
Police Made 1.1 Million Data Requests to Cellphone Carriers in 2012 (Mashable)
Bitcoin Fraud Stays Ahead of Bitcoin Law (NY Times)
YouTube Unleashes Strange Storm Of Copyright Claims On Video Game Content Producers (Forbes)
Sarah Jones case: Internet giants urge Fed court to set aside decision (CBS)

There's an App for That
'12 Days of Gifts' Will Get You Free Apps, Songs and Music from Apple (abc)
An App to Find Holiday Light Displays (NY Times)
AskMD Is a Health Dashboard For Your iPhone (Mashable)
An App That Will Never Forget a File (NY Times)
When You See An Outfit You Want, Style-Eyes Will Help Your Smartphone Find It Online (Forbes)

Willful Blindness on Trade Secrets: Employers Could Pay a Heavy Price

A recent trial experience provided an extraordinary lesson on the significant legal exposure employers face when hiring away employees from a competitor. I recently completed a jury trial in which my client obtained a $22.7 million verdict against a competing company that had hired away two of my client’s employees who had secretly taken numerous computer files belonging to my client and then used them for the benefit of their new employer. Although there ended up being many actions of the new employer to criticize, I believe that the most egregious one was the new employer’s failure to actively manage this risk at the hiring stage. The new employer appeared to – at best – utilize a conscious strategy of “turning a blind eye” toward the unlawful activity of its newly hired employees, while at the same time profiting significantly from the use of the purloined computer files.

Although the new employer at trial argued that the employees were essentially “rogue employees” who had acted without any direction or knowledge of their new employer, the trial evidence demonstrated a tremendous failure by the new employer to manage the situation in order to limit its legal exposure. No effort was made to ensure that the new employees did not possess and bring with them any trade secret or confidential information of their former employer. Nor were any efforts undertaken to meaningfully search the new employer’s computer system to ensure that such information was not being used by the new employees nor uploaded to the new employer’s computer system.  

Minnesota and more than 40 states protect trade secret misappropriation through the Uniform Trade Secrets Act. Employers need to be aware that it is an unlawful misappropriation under that statute if a party (such as a new employer) benignly comes into possession of trade secrets – even unknowingly – and does not, upon discovery that the trade secrets are in the company’s possession, take action to cease using the information and to return that information to its owner. It is, therefore, not an effective defense to trade secret misappropriation claims for a new employer to merely claim that they did not direct new employees to bring trade secret or other confidential information along with them.

To effectively manage legal exposure for misappropriation of trade secrets and confidential information, all employers should consider consistently taking the following steps when hiring new employees who were previously working for a competitor: 

·       Ask job offerees if they have signed a confidentiality agreement and/or noncompete agreement with their existing employer and, if so, review that agreement.

·       Inform job offerees (and new employees) that they are expected to comply with the terms of any confidentiality and/or noncompete agreement with their prior employer and to not bring with them or use any confidential or trade secret information of their former employer. For maximum protection, this direction should be made in writing (such as including it within any employment offer letter).

·       Promptly and seriously investigate any concerns that may arise about the improper possession or use of trade secret and confidential information by your employees.

·       Implement serious discipline (including possible termination) of offending employees.

Week in Review

You may have thought you’d seen it all, but technology continues to change the world, the law, and the workplace. The headlines were abuzz this week with Amazon's announcement that it will soon be ready to use drones to deliver packages within 30 minutes of an order. However, the announcement has produced skepticism based on logistical and legal barriers. In other news, the U.S. Court of Appeals for the Ninth Circuit will become the first federal appeals court to live stream oral arguments in all en banc cases starting this month. In the workplace, employers are looking for ways to use their employees to market their company through social media.

Technology and the Workplace

Paid to Tweet? What the Social Workforce Means for All of Us (Wired)

Applicants' mug shots may be just a click away (HR Hero)

Employee legally fired for complaining on Facebook about the boss' "creepy hands" (Employer Handbook) (Employer Law Report)

What Your Employees Steal May Be Used Against You In a Court of Law (Delaware Employment Blog)

Lawyer pleads no contest to charge of recording workers' comments while away from the office (ABA Journal)

Wisconsin Gov. Scott Walker Fires Two Employees for Racist, Anti-Hispanic Remarks (International Business Times)

Technology and the Law

Nation's Largest Federal Appeals Court to Livestream Arguments (WSJ) (LA Times)

Facebook chat about 'hit' on judges adds to court problems for 2 defendants (ABA Journal)

What FAA Rules Will Amazon Need To Navigate Before A 30 Minute Delivery Drone Becomes Reality? (Forbes) (CBS)

State appeals court upholds parole board ban on use of social media by sex offenders (ABA Journal)

Supreme Court Won't Review Case on New York's Online Sales Tax (Mashable)

Motion on Arias Jurors' Twitter Handles Denied (abc)

There's an App for That

Coming Soon: Workout Gear That Monitors Your Muscles (Wired)

From Backyards to Boroughs, CO Everywhere Allows Users to Find Local News (abc)

Dislike? Facebook is adding an 'Unfollow' button (NBC)

Google sees Amazon's drones, and raises its own army of robots (Guardian)

Uber Will Deliver Christmas Trees to Your Door for $135 (All Things Digital)

The Supreme Court to Hear Hobby Lobby Case: What does it mean for Title VII?

The Supreme Court announced last week that it will hear two cases in which for-profit businesses are challenging the Affordable Care Act’s (“ACA”) “contraceptive mandate” on freedom of religion grounds. The key issue before the Supreme Court will be whether or not corporations have religious rights.

The two lawsuits at issue were brought by Hobby Lobby, a company owned by Evangelical Christians, and Conestoga Wood Specialties, a family business owned by devout Mennonites. In both cases, the companies claim that the ACA’s mandate that all group health plans provide and pay for all forms of FDA-approved contraceptives violates the religious rights of the companies based on their owners’ religious views. Of particular concern for these companies’ owners is the obligation to pay for “Plan B” (the morning-after pill), ella (the “week after” pill), and certain intrauterine devices (IUD’s). These items are classified by the FDA as contraceptives, but Hobby Lobby’s and Conestoga Wood’s owners consider these items to be “abortifacients,” meaning they terminate rather than only prevent a pregnancy.

The Hobby Lobby case comes to the Supreme Court from the Tenth Circuit Court of Appeals, which held that Hobby Lobby had the right to challenge the ACA’s contraceptive mandate on religious grounds under the First Amendment. The Conestoga Wood case comes to the Supreme Court from the Third Circuit Court of Appeals. The Third Circuit held that for-profit businesses forfeit any right to challenge a law on religious grounds by utilizing the corporate form and accepting its accompanying benefits.

One interesting question to consider is what, if any, impact the Supreme Court’s opinions on the “contraceptive mandate” may have on Title VII or other laws that may contradict a corporate owner’s religious views. One concern expressed about the ACA contraception mandate cases is that any ruling exempting a business owner from the ACA on religious grounds could create a “slippery slope” that erodes other laws that protect employees from discrimination. For example, if a for-profit business does not have to comply with the ACA on religious grounds, could it also be exempted from laws prohibiting religious discrimination? It does not necessarily follow, however, that a Supreme Court win for Hobby Lobby will result in for-profit businesses being able to disregard Title VII or other laws on religious grounds. The Hobby Lobby cases will likely turn on whether the federal government can prove a compelling state interest in enforcing the “contraceptive mandate” in light of the business owners’ arguments that contraceptives are widely available, often for free, from other sources. What does or does not constitute a compelling state interest in the ACA context may be very different than what a court would find to constitute a compelling state interest with respect to discrimination or other laws.

Week in Review

Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the office on mobile devices. 

 

On a more positive note, during the busiest travel week of the year, airlines and travel apps are making travel more convenient. Multiple airlines now allow the use of electronics during take-off and landing following the Federal Aviation Administration’s revision of its rules earlier this month. Meanwhile, the Los Alamos National Laboratory announced a breakthrough in screening liquids at airport security, which could lead to additional regulatory changes. We also have links below  to apps that will make your holiday travel a bit smoother. Fly, drive, and surf safely.

Technology and the Workplace
Some employers use Facebook to discriminate against job applicants, study suggests (ABA Journal) (WSJ)
How Employers Can Deal with the Most Outrageous Excuses for FMLA Leave (FMLA Insights)
Risk not so remote: overtime for working on mobile devices (Technology for HR)
"My Employee is on Facebook Four Hours a Day. What Do I Do?" (Connecticut Employment Law Blog)
Massachusetts Judge Rules that Updating LinkedIn Does Not Constitute Solicitation (Trading Secrets)

Technology and the Law
Embracing big brother: How facial recognition could help fight crime (CNN)
Microsoft blocks censorship of Skype in China: advocacy group (NBC)
Dangerous or harmless? New technology could alter airport security rules on liquids (NBC)
The Airlines That Let You Use Electronics During Take-Off and Landing (Forbes)
Jury Tells Samsung to Pay Apple $290 Million (NY Times)
Online Health Law Sign-Up Is Delayed for Small Business (NY Times)

There's an App for That
Tech toys and tools ease holiday travel (USA Today)
Google maps airports, train and subway stations with Street View update (Computerworld)
5 Best Business Travel Apps of 2013 (Forbes)
Hassled by TSA? App lets you file a complaint on the spot (CNBC)
HelloWallet: An Easier Way to Save Money (Mashable)
Better Than a Bic? Guide to Digital Pens (abc)

Week in Review

As turkeys and pumpkin pie ingredients fill grocery carts across America, employee privacy issues fill the workplace.  A recent survey shows that younger employees, ages 18 to 25, are more concerned about their privacy in the workplace than their older counterparts.  Meanwhile, some employers are beginning to use surveillance cameras in the workplace to improve safety and efficiency, the way coaches use game film to improve their sports teams’ performance.  But, back to Thanksgiving.  In the holiday spirit, we’re providing you information about apps to help you stuff your turkey and then, once you're stuffed, to get the best deals on your holiday shopping.

Technology and the Workplace

NLRB ok's firing of two employees who trashed their company on Facebook (The Employer Handbook)

US Army to Track Employees' Web Activity to Thwart Future Snowdens (Mashable)

What the Internet Of Things Will Bring to the Workplace (Wired)

Is 'Big Brother' Watching You? (Bloomberg)
The Human Hack: How to Fight an Internet Risk Technology Can't Fix (Bloomberg)

Shocker: Young employees are more concerned about online privacy than you thought (Venture Beat)

Technology and the Law

'Granny cam' law aimed at curbing nursing-home abuse takes effect in Oklahoma (ABA Journal)

Social media maven sues TV network, says it stole 6.78M Facebook 'likes' from her page on 'The Game' (ABA Journal)

Phone Law Makes Deficit Cuts A Little Harder (WSJ)

Law limiting autodial cellphone calls spurs 'litigation boom' (ABA Journal)

Appeals Court Revives Apple Bid for Ban on Samsung Devices (WSJ)

'Kill switch' to prevent phone theft rejected in US (Telegraph)

Supreme Court Rejects NSA Phone Surveillance Challenge (Mashable)

There's an App for That

7 Deal Aggregators for Holiday Shoppers (Mashable)

7 Thanksgiving Apps for the Ultimate Holiday Feast (abc)

Top 10 Apps To Get You Through A Successful Thanksgiving Holiday (Forbes)

The 8 best apps for Black Friday, Cyber Monday, and Christmas shopping (Venture Beat)

7 Apps That Will Make Holiday Shopping A Breeze (Business Insider)

Employer-Selected Payroll Cards Cannot Be The Sole Method Of Paying Wages

Many employers have implemented direct deposit payroll systems to reduce the transaction costs associated with paper payroll checks and the risks of the loss or theft of paper checks. A payroll card is an increasingly popular method used by employers to provide for the direct deposit of wages, particularly for employees without a deposit account at a financial institution. A payroll card is a debit or prepaid card onto which the employer loads an employee’s wages. The employee may then access those wages through withdrawals of cash at an ATM machine or by making purchases using the payroll card as a payment card.

Employers should be aware that payroll cards are subject to federal regulation under the Electronic Funds Transfer Act (EFTA) and Regulation E, which implements the EFTA.  Regulation E, among other things, requires that the employee receive certain disclosures concerning the fees associated with the payroll card, places limitations on the employee’s liability for unauthorized transfers using the payroll card, and provides error resolution procedures relating to the payroll card.

In addition, the Consumer Financial Protection Board (the “CFPB”) recently issued a bulletin instructing employers that Regulation E prohibits an employer from mandating that its employees receive their wages only on a payroll card selected by the employer. The CFPB’s bulletin makes clear that the employer may require employees who do elect to receive their wages on a payroll card to use only an employer-selected card, but the employer must also offer its employees other options for receiving their wages, such as by direct deposit to a deposit account at the employee’s financial institution or in the form of a check or cash.

The CFPB was formed in 2010 and has become increasingly active in enforcing consumer finance laws and regulations. The CFPB has now been authorized to enforce the EFTA and Regulation E against employers that issue payroll cards to pay wages. To avoid being subject to CFPB enforcement action, employers should ensure that, if they use payroll cards for the payment of wages, the payroll cards are one of several payment options available to employees and that the terms that apply to the payroll cards are compliant with the EFTA and Regulation E.

In addition, an employer needs to be sure that its wage payment methods and any payroll cards used to pay wages comply with applicable state law. The EFTA and Regulation E permit states to adopt laws that provide for greater protection to employees than the EFTA and Regulation E. Minnesota, for example, allows the use of payroll cards as a wage payment option, but imposes requirements similar to Regulation E on the terms applicable to payroll cards. In addition, Minnesota law does not permit an employer to mandate that employees accept wage payment by direct deposit, but allows employers to provide direct deposit as a payment option.

 

A post by Phil Bohl, Guest Blogger