Week in Review

There was a little something for everyone in this week's technology developments. Colorado adopted a social media workplace privacy law, joining 13 other states with similar laws that limit employers' access to employees' passwords and other personal data. Privacy doesn't fare so well, however, according to new reports that forensic examiners have increased their ability to recover all kinds of things cell phone users thought were "deleted," including incriminating pictures taken with the Snapchat app. All sorts of workplaces are now able to accept mobile payments, which is a great convenience for customers but increases responsibilities -- and potential liabilities -- for employees. And at the political intersection of technology and labor, high-tech companies want to increase the number of skilled computer workers and engineers from other countries allowed to work in the US, while labor organizations want to keep tech jobs for US citizens.


Technology and the Workplace
CO Now Has a Social Media Workplace Privacy Law Too (Employer Handbook)
U.S. Technology, Labor Clash on Immigration (CBS)
14 Ways to Accept Mobile Payments (Mashable)
OMG, "Deleted" Snapchat Sexts Can Actually Be Recovered? (Slate) (ARS Technica)
Court Orders Re-Hiring a Teacher Who Wished Her Students a Watery Death (Employer Handbook)

Technology and the Law
Stunned by $45M Cyberheist, Banks Have Limited Options for Trying to Recover Money (ABA Journal) (CNN)
Copyright Owners Can't Sue YouTube as a Group (NBC) (Huffington Post)
France Set to Tax Smartphones to Protect Culture in Digital Age (CNBC)
WV Bans Sexting Between Juveniles While Creating Educational Diversion Program (Huffington Post)
Obama Has Worse Record Than Nixon on Press Freedoms, Says Pentagon Papers Lawyer (ABA Journal) (The Daily Beast)

There's an App for That
Google Wallet Will Soon Allow You to Send Money as a Gmail Attachment (Gawker)
Swipe Away Photo Imperfections on a Smartphone (NYT)
Huggies TweetPee Device Sends Tweet When Baby Wets Diaper (CBS)
3 Apps for a Better Night's Sleep (Mashable)

Ban the Box Legislation on its Way to Becoming Law

Last week the Minnesota House of Representatives passed “Ban the Box” legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support.  Governor Mark Dayton has indicated his support and is expected to sign the bill into law.

With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers.  Proponents believe that postponing inquiries into an applicant's criminal history until later in the hiring process will stop the practice of automatically rejecting ex-offender candidates and increase hiring opportunities for such applicants. 

EEOC guidance on hiring ex-offenders requires employers to perform an individualized assessment before excluding an applicant from consideration because of criminal history.  The guidance instructs employers to consider the nature of the offense, the date of the offense (or the date since incarceration ended), and the duties of the position for which the applicant is applying. Thus, even without ban the box laws (and, for Minnesota employers, even before this new law takes effect), employers should review their application process and consider removing inquiries which seek information regarding past criminal offenses. 

Out With The Old, In With The New Form I-9

The newly revised Form I-9 went into full effect  this past week on May 7, 2013.  USCIS rolled out the new form earlier this year, but gave employers a 60-day grace period to transition.  As of last Tuesday, United States Citizenship and Immigration Services is no longer accepting the previous version of Form I-9. Employers must use this new form for all new hires and reverifications going forward, but they do not need to complete a new Form I-9 for existing employees with a properly completed form on file.  For more information on the changes to the new Form I-9, please visit the previous blog post from my colleague Casey Nolan.

Week in Review

Don't text a texter -- at least not one who's driving. A New Jersey court of appeals is currently considering whether a young woman who texted an individual she allegedly knew was driving could be held liable for the damage arising out of that distraction. If this theory succeeds, it could give employers one more thing to worry about, and may affect how employers communicate with traveling employees. While not illegal yet, it's still a good idea to avoid texting employees you know are driving, especially considering the costs to employers of distracted driving. Better yet, have your employees install one of the apps listed below that helps drivers avoid texting distractions.

In other news, New Jersey Governor Chris Christie conditionally vetoed the proposed social media bill that would prevent employers from asking for workers' social media passwords. The governor indicated that he would like to see more protections for businesses in the bill. On the NLRB front, the Board has issued two more decisions in electronic speech cases, both of which came down in favor of the employees.

Technology and the Workplace
NJ Governor Christie Vetoes Proposed Workplace Social Media Law (Employer Handbook) (Law 360)
New NLRB Rulings Back Bus Driver Fired Over Web Comments (ABA Journal) (Reuters) (Labor Relations Today)
MN Asks Judge to Dismiss Drivers' License Data Lawsuit (Star Tribune)
Board Finds CalTech Scientists' Emails Protected Activity (Labor Relations Today) (Law 360)
Personal Emails Win Privacy in TX House Vote (NBC)

Technology and the Law
Can Remote Texter Be Liable if Driver Distracted by Message? Appeals Court Mulls Novel Theory (ABA Journal) (Daily Record)
Internet Tax Bill Targets All Digital Downloads (CNET)
Cops Can't Search Cellphone Seized at Arrest, FL Supreme Court Says (ABA Journal) (Tampa Bay Times)
FTC Warns Data Brokers to Heed Consumer Privacy Law (Law 360) (NY Times)
San Francisco Barred From Warning Consumers of Cellphone Radiation (NBC)

There's an App for That
Teenager Comes Up With a Way to Block Twitter TV Spoilers (LA Times) (Huffington Post)
Apps that Curb the Temptation to Text and Drive (All Things Digital)
Email Anxiety? Apps to Help Fight Inbox Agita (ABC)
Locked Out of Facebook? Now Your Friends Can Help (Mashable)

To insure or not to insure . . . .

The Patient Protection and Affordable Care Act (“PPACA”) is now more than 3 years old and, like any 3-year-old, is beginning to assert itself in new and often clumsy ways. While the stated purpose of the PPACA is to broaden the pool of insured individuals, employers in many sectors are seeking ways to keep employees ineligible for health-care coverage. Institutions of higher education are the latest employers in the news for seeking ways to avoid having their adjunct faculty covered by health insurance. 

A recent article in The Chronicle of Higher Education highlights the plight of universities and their adjunct faculty. Many colleges, like other employers, are now seeking to limit the number of hours their faculty members work. Starting in January 2014, employees of large companies who work more than 30 hours a week must receive health benefits from their employers. Penalties up to $2,000 per employee are possible for an employer’s violation of this provision.

In the proposed rules announced this past January, the Internal Revenue Service explained that institutions of higher education should “use a reasonable method for crediting hours of service,” which should include both classroom time and preparation time. To keep adjunct faculty’s hours below 30 hours and to avoid the expense of providing healthcare to adjuncts, colleges are adopting a variety of solutions. Some are reducing the workload limit for part-time adjuncts, dropping credit hours or courses they can teach in order to be reliably under 30 hours a week. Others are setting strict ratios for teaching to preparation time (for example, 1 to 2). Some institutions are simply making good faith estimates of the number of hours they reason it should take adjuncts to do their jobs. 

Most colleges, and large employers across the country, are at the very least requiring their part-time employees to log their hours for review by human resources departments. This creates new timekeeping duties for administrators, and with their hours being carefully scrutinized, part-time employees may feel that they are faced with a dilemma – lie about the number of hours they work or face potential termination or nonrenewal of their contract. 

For institutions of higher learning, this is yet another new legal issue in an already highly regulated field. For all large employers, this is an uncertain time of attempting to figure out how to adequately staff workplace needs without incurring unmanageable costs.

Week in Review

Another week passes, and another social media password protection law has been enacted. Arkansas is the latest state to ban employers from obtaining workers' social media login information.

 The NLRB has also been busy dealing with social media issues. In a recent decision, an ALJ found that the University of Pittsburgh Medical Center's social media policy violated Section 7 of the NLRA because it prohibited employees from describing any affiliation they had with their employer in their social media posts. In another case, the Board ruled that Bettie Page Clothing violated Section 8 of the NLRA when it fired three employees for their Facebook posts, which involved complaints about the safety risks of the store's closing time and management's lack of response to these concerns. The Board found these posts to be protected concerted activity and ordered that the employees be reinstated.

Technology and the Workplace
NLRB Issues 3rd Facebook Firing Decision -- Employers 1, Employees 2 (Employer Law Report) (Lawffice Space)
UPMC Computer, Social Media Policy Violated, NLRB Says (Law 360) (Labor Relations Today)
Arkansas Gets Workplace Social Media Privacy Law (Employer Handbook)
"Bring Your Own Device" Evolving From Trend to Requirement (All Things Digital)
Justices Asked to Mull E-Privacy Law in Phone-Search Case (Law 360)

Technology and the Law
Americans Don't Want More Government Monitoring Cellphones and Emails to Fight Terror, Survey Says (ABA Journal) (CNN)
US Regulators Look At Dealing With Social Media (NBC)
Surrender Your Digital Privacy or Face a Fine (FOX) (Slate)
With Few Other Outlets, Inmates Review Prisons on Yelp (Washington Post) (ABA Journal)
Do Online News Stores About Arrests Constitute Libel After Expungement? (ABA Journal) (NYT)

There's an App for That
Smartphone Apps for Spring Cleaning (FOX)
Rearranging the Furniture, Minus the Aching Back (NYT)
VA Tech Victim is Behind Campus Safety App LiveSafe (LA Times)
10 Apps for International Travel (Mashable)

Should You “Friend” Your Employees?

Last week in The Modern Workplace Week in Review, we posted a link to an article discussing the results of a survey that found that most people believe you should never friend your boss (81% of those surveyed). 

From an employment law standpoint, I think the more interesting question is:  should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace.  I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not directly supervise him or her, can lead to trouble.  Here are some of the concerns:

•  From a personal perspective:  What happens when you learn that the employee is violating company policy by posting on her work time?   This is your friend.  You may have to confront the friend about the inappropriate use of time, or report your friend to another manager.
• From a discrimination perspective:  What happens if the employee is terminated and tries to claim that the termination was discriminatory – for example, because of a disability?  The employee may argue that management knew about the disability because of information contained in social media posts.  Do you really want access to all that information?   This can come up in other contexts as well.  The employee might claim that the termination was based on the fact that he was dating someone of another race, or that he joined a specific church, and that you, his boss, found out about it through social media. 
• From a labor law perspective: There have been several articles here at The Modern Workplace about the dangers of disciplining employees who post complaints about managers, other employees, or other aspects of work on social media.  An employee can easily claim that an adverse employment action is based on a protected right under the National Labor Relations Act, which allows employees to discuss the terms and conditions of employment and prohibits employer retaliation for such discussion.  If you have access to your friend’s posts, you may have access to his or her protected discussions, too, and your friend may claim that your access led to discipline or discharge.
   

As you can imagine, I agree with my colleagues that it’s not a good idea for a boss to friend an employee. I think the risks outweigh any advantages. If, however, you have a close friendship outside work, and really think that you need to friend the employee, I would offer the following guidelines (with help from some of my blogging peers) to mitigate the risks:

• The boss should never initiate the request. As a boss you are in a power position over the employee. If you make the request, the employee may feel obligated to accept.
• If your friend makes the request, you should talk candidly about the possible implications of accepting. Make sure the employee knows that you have obligations to the company, and that if certain kinds of information is posted you might have to pass it on to others in the company.
• Make sure that appropriate boundaries are maintained. As a boss, comments you  make based on a protected class status could violate harassment policies even if those comments are made during non-work hours. Likewise, you need to be careful that what you say is not interpreted to be company policy, or to be a statement about the company’s plans for the future.

There has always been discussion about the appropriate boundaries for relationships between supervisors and those they supervise. What’s new is the way that social media has changed and defined our social interactions, and the fact that social interaction that takes place through social media is never completely private, and is written in indelible electronic ink.