Friday, July 29, 2011

Technology, Law and the Workplace: Week in Review (The BYOD Edition)

Fewer employers are choosing the brand of smartphones that their employees use for work. According to recent surveys, an increasing number of companies offer reimbursement based on a "Bring Your Own Device" (BYOD) policy.  Not surprisingly, this has undermined sales at Research in Motion (RIM), the largest provider of enterprise smartphones selected by employers.  RIM, maker of Blackberry smartphones, has seen its prospects dim as more employees choose iPhones and Android-based smartphones and ask their company to support work use.

Though warning signs have been noted for some time, recent layoffs at RIM seem especially ominous and some commentators wonder whether the Blackberry will remain a viable competitor to Apple and Android-based phones.  The poor sales of RIM's Playbook tablet, hyped as a prime competitor to Apple's iPad in the growing enterprise tablet market, only emphasizes RIM's competitive disadvantage.

What does this mean for employers?   A diverse array of smartphones equals a more diverse array of security and privacy concerns for companies to confront.

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Round of Layoffs to Start at Research in Motion (NY Times)
  • First Noka, Now RIM: The Mighty are Falling (Wired Blog)
  • Can the Enterprise Cloud Save RIM (Fortune)
  • This is My Last Blackberry (PC Mag)
  • The Kingdom and the Paywall (NY Magazine)
  • Sidestepping Apple: From Amazon to Condé Nast, Companies Rethink App Strategies (Wired)
  • The Cases for and Against Google+'s Real Name Policy (Atlantic Wire)

Compiled and contributed by Scott Raver

What’s Going On At the NLRB?: Why You Should Care Even If Your Workforce Isn’t Unionized

If you’re a non-union employer, you may be under the impression that the machinations of the National Labor Relations Board are not relevant to you and your business. You may be wrong. For one thing, employees have rights under Section 7 of the National Labor Relations Act whether the workforce is unionized or not. The Board has made it clear that it will pursue charges against non-union employers for violating these rights, specifically for policies that interfere with employees’ right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” What that means is that employees have a protected right to complain to other employees about the terms and conditions of their employment. Policies that prohibit such communication likely run afoul of the NLRA. As we’ve noted previously, social media policies in particular have been fodder for Board scrutiny, because some companies’ policies prohibit employees from posting anything disparaging about the company online. Consider this example: Employee A posts a gripe about the boss on Employee B’s Facebook wall. The gripe has something to do with being asked to work late again or not getting a requested schedule change. Employee A expresses extreme dissatisfaction with this state of affairs. Guess what? Employee A has probably engaged in protected activity. Having a policy that prohibits such communication, even if it is never enforced, might be enough to land the employer, unionized or not, in the Board’s crosshairs.

In addition to what trouble may come from having overbroad policies, I’ll explain in a future post why non-union employers should take notice of recent rule changes proposed by the Board. You may be thinking: Rule changes? Really? Procedural stuff? THAT should matter to me? Well, yes. Stay tuned.

Monday, July 25, 2011

Confessions of a Luddite

From Merriam Webster: Luddite -one of a group of early 19th century English workmen destroying laborsaving machinery as a protest; broadly : one who is opposed to especially technological change.

Why do I start with a definition of the word Luddite? Quite simply, I’m probably at least in part a Luddite. I use technology every day; yet, I am reluctant to embrace much of the new technology. That may sound strange coming from a person who is writing on a blog about technology, but alas, it is true. Interestingly, every time I have been “forced” to use a new technology I have eventually embraced it.

I am often reminded when I talk to employers about their use of technology that we need to think about the Luddites of the world. Not all of your employees will embrace technology with equal enthusiasm. However, you can take steps to make it easier (thanks to those who have helped me become a blogger—so much easier than I thought). Offers of assistance, training, and sometimes just holding a person’s hand as they try something for the first time can really make a difference—and you may end up with an employee who is much more productive in the end.

Friday, July 22, 2011

Technology, Law, and the Workplace: Week in Review (The VPP Edition)

Last week, Apple announced that it would begin offering volume purchasing for iOS apps. A week later, the App Store Volume Purchase Program is now open for enrollment. The Volume Purchase Program (VPP) allows businesses to make bulk purchases of apps, although Apple currently does not offer discounts for buying in bulk (insert joke about how expensive Apple products are here).  However, the VPP allows businesses to purchase, customize, and distribute iOS apps throughout the enterprise.

So what does this development mean for employers? On the one hand, the VPP gives employers more control over the devices owned and distributed by the business. Although it always been possible for employers to control the installation of applications on iOS devices owned by the enterprise, before the VPP, this was a very cumbersome, device-by-device process. Going forward, centralized management of iOS apps appears to be a more feasible option for employers.

However, as with so many technological advances, control is often illusory. Employers should know that the control and distribution of iOS applications is only a small part of the control and maintenance of iOS devices. Harassment, pornography, and unlawful activity do not require special apps—and employers that are considering getting in the business of owning, distributing, and maintaining iOS devices should do so with their eyes wide open.

Technology in the Workplace
Technology and the Law More Generally
  • "Internet Communications" Alone Insufficient To Invoke Florida Long-Arm Statute Against Lindsay Lohan In Trade Secrets Misappropriation Suit (Trading Secrets)
  • US Supreme Court Refuses to Stay Videotaped Execution, Now Set for Tonight (ABA Journal Blog)
  • Online Exhortation to Shoot Obama Was Protected Speech, 9th Circuit Rules (ABA Journal Blog)
  • 16 Arrested as F.B.I. Hits the Hacking Group Anonymous (NY Times)
  • Transparent Government, via Webcams in India (NY Times)
Technology in the News
  • Apple Launches B2B Store For Volume App Store Purchases (TUAW)
  • The Ultimate Nerd Apparel: iCufflinks (Gadgetwise)
  • U.S. to Close 800 Computer Data Centers (NY Times)
  • Study: Average corporate network hacked 3+ times a year (MSP Business Journal)
  • Privacy Isn’t Dead. Just Ask Google+ (Bits)
  • Seeing Promise and Peril in Digital Health Records (NY Times)

Thursday, July 21, 2011

What Are Your Employees Watching at Work?

As I personally lament Netflix’s unbundling of its online services and its price hikes, it occurs to me that the price increase could be good news for employers – at least those with employees who find it appropriate to watch TV shows and full length films on the job. A recent study conducted by Harris Interactive and Qumu revealed that 17% of those surveyed watch videos at work, consisting of, in order of the most viewed videos: news clips (25%), viral videos (15%), videos on social networking sites (12%), sports clips (11%), TV shows (9%), full length films (4%), and porn (3%).

The June 2011 study was conducted in part by Qumu, a business video platform provider advocating that online videos in workplaces are here to stay and that its services can assist employers in managing video content. The study examined how those surveyed thought mobile devices were being used by others in the workplace and how those surveyed actually used their devices. Interestingly, 61% of those surveyed want to work for employers who allow them to use whatever mobile device they want on the company network, but 74% of those surveyed believed their fellow workers would use mobile devices for unapproved, personal activities. The leading guesses for inappropriate usage included looking for other jobs on company time, visiting dating sites, and surfing porn, but the actual leading usage was watching videos on work time. The study also revealed entertaining insights into the lengths to which employees go in order to “sneak-a-peek” at their mobile devices in meetings. Among the sneak-a-peek methods reportedly used by employees were: hiding the device under the table or in folders/notebooks/papers, leaving the meeting under the pretense of going to the restroom, creating a distraction, or, my personal favorite, pretending to tie their shoes.

In addition to the obvious productivity downsides of an employee watching a full length TV show or feature film at work, online videos can, depending on the circumstances, impact the integrity and efficiency of the company’s network. The Harris-Qumu survey is yet another reminder of the many ways employees can use personal mobile devices and a company’s technology for both good and evil and why employers should consider carefully crafted workplace technology policies.

Tuesday, July 19, 2011

Did You Know? Cases Involving Social Media Must Be Submitted to the NLRB’s Division of Advice

Over the last year, Regional Directors of the National Labor Relations Board have initiated several high-profile complaints against employers for policies and conduct related to social media.  (See Megan Anderson's article about this trend here.)  In these complaints, the NLRB has alleged that employers violated Section 7 of the National Labor Relations Act by maintaining overly broad social media policies or by disciplining employees for protected concerted activity (or both).  However, many of the cases have settled, and none have advanced to trial, leaving a trail of uncertainty about the status of the law in this controversial area.

The NLRB appears to be acknowledging the uncertainty in this area of the law.  Earlier this spring, the NLRB’s Acting General Counsel announced that cases involving social media must be submitted to the Division of Advice (click here to download).  According to the April 12, 2011 memorandum, “[c]ases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” require a decision by the General Counsel.  The memorandum states that the larger group of cases in which social media is included require a decision by the General Counsel “because of the absence of precedent or because they involve identified policy priorities.”

So what does this NLRB policy mean for employers?  On the one hand, it may be reassuring for employers to know that the Division of Advice, which has been a recent voice of reason in the world of social media and labor law, is vetting cases.  However, it is not clear whether cases involving social media must be submitted to the Division of Advice "because of the absence of precedent" or, in contrast, "because they involve identified policy priorities."  To the extent that cracking down on employer discipline for social media postings is a policy priority of the Board, employers would certainly have reason to be concerned by this trend.

For those interested in learning more about the NLRB and social media, I will be speaking on the topic at an Employment Law Alliance webinar tomorrow (July 20) at 2:00 pm CT.  It's not too late to register and learn more about the NLRB's aggressive efforts in the world of social media and beyond!

Sunday, July 17, 2011

Technology, Law, and the Workplace: Week in Review (The Harry Potter Edition)

This weekend, Harry Potter fans everywhere are celebrating the last film in the series based on J.K. Rowling's novels about a magical world of witches and wizards. No matter your opinion of the books, none can deny that the world of Harry Potter has become a popular culture phenomenon. When the film debuted on Thursday, it broke the box office record for a midnight showing.

As a fan of the series, I have to admit that I was tempted to attend the midnight showing of the series finale. However, I know myself well enough to know that I would not be able to function at work well the following day, so I decided to wait for the weekend. Many of my friends did not make the same decision, and though some were able to handle the sleep deprivation, many were quick to admit that they were not at the top of their game at work the next day.

In my mood of self-congratulation, I ran across a New York Times article Monitoring the Private Lives of Your Employees. The article, written by an entrepreneur in the ongoing series entitled "You're the Boss," describes far more troubling information an employer received in the form of an anonymous email tip. But in this information age, an employer is often able to monitor the private lives of employees in things large and small—including whether an employee who looks tired went to the midnight premiere of the latest Harry Potter movie. Like the entrepreneur in "You're the Boss," employers must ask themselves the non-legal practical question of whether the information they are seeking is trustworthy and important enough to justify the potential intrusion into the private lives of employees.

Technology in the Workplace
Technology and the Law More Generally
  • Pentagon discloses largest-ever cyber theft (Star Tribune)
  • Cops to Get Facial Recognition Devices; Will They Need Warrants to Use Them? (ABA Journal)
  • Must Defendant Give DOJ the Password to Her Encrypted Laptop? Federal Court Will Decide (ABA Journal)
  • NJ Appellate Court Allows GPS Tracking to Catch a Cheating Spouse (WSJ Law Blog)
  • Can the Government Compel You to Reveal Your Passwords? (Digital Passing)
  • Facebook, Myspace, Fair Game as Evidence in Court (WSJ Law Blog)
Technology in the News
  • Goodbye, Paper Savings Bonds (NY Times)
  • To Track Militants, U.S. Has System That Never Forgets a Face (NY Times)
  • Smartphones and Mobile Internet Use Grow, Report Says (Bits)
  • In Search of a Robot More Like Us (NY Times)
  • Digital Domain: The Therapist Will See You Now, via the Web (NY Times)

Monday, July 11, 2011

Technology, Law, and the Workplace: Week in Review (The "Texters" Edition)

Photo by Joseph Holmes (via Bits)
As always, the world of technology never seems to slow down.  This Week in Review includes articles about a Presidential Town Hall on Twitter, hackers galore, and the online fallout of the Casey Anthony trial.  Among all the news of the week, I was captivated by the New York Times coverage of Joseph Holmes's online series of photographs entitled "Texters."  The series depicts individuals around New York City peering down at their smartphones, completely absorbed in the world of technology and often oblivious of their surroundings.

Besides providing an interesting commentary on modern life, this series has interesting employment law implications.  In this day and age, it is rare for an employer not to provide or allow smartphone use for work purposes.  Unfortunately, many employees use this technology while driving, walking, or in countless other dangerous or inappropriate situations.  In the event of an accident caused by an employee's use of smartphone technology, employees and third parties could (and often do) seek some form of compensation from the employer, including workers' compensation and tort claims.

Given this potential liability, employers are well advised to maintain policies about appropriate and safe use of smartphone technology.  However, the "Texters" series also demonstrates the fundamental shift in attitudes and social norms about use of technology on the go.  Employers that wish to counter these norms should educate and train employees about the employer's expectations.

Technology in the Workplace
Technology and the Law More Generally
  • Amid Stacks of Paper, 'E-Court' Is Finally in Session (NY Times)
  • To Slow Piracy, Internet Providers Ready Penalties (NY Times)
  • No Friend of Mine: Court Denies Facebook Discovery (Delaware Employment Law Blog)
  • Should the Government Need a Search Warrant to Track Your Car With GPS? (Time)
  • N.Y. Juror Fined for Texting From Deliberations (Going Paperless)
  • U.K. Juror Sentenced to Jail for Facebook Contact (Going Paperless)
Technology in the News
  • Mayo Clinic launches social network (Tech{dot}MN)
  • Investment Values Twitter at $8 Billion (Deal Book)
  • President Obama @ Twitter Town Hall (White House Blog, The Caucus)
  • Facebook Offers Video Chat in Arrangement With Skype (NY Times)
  • Texters, the Photo Series (Bits)
  • New Glasses Give The Blind Bionic Eyes (Fast Company)
  • Watching a Trial on TV, Discussing It on Twitter (NY Times)
  • British Tabloid Hacked Missing Girl's Voice Mail, Lawyer Says (NY Times)
  • Hackers Commandeer a Fox News Twitter Account (NY Times)

Saturday, July 2, 2011

Technology, Law, and the Workplace: Week in Review (The Google+ Edition)

Earlier this week, I wrote about the speed of change in the world of technology. The next day, Google announced its latest entry into the social media world: the Google+ project. The Google+ project aims to challenge Facebook with features such as "Circles" for sharing of information with smaller groups, "Huddle" for group messaging, and "Hangouts" for video chatting. Although these features exist in other tools and networks, the combination in one platform could ultimately make Google+ a worthy rival to Facebook.

So what does this development mean for employers?  For the time being, not a lotthe Google+ network is still in testing mode and participation is by invitation only.  In the long run, however, Google+ has the potential to alter the landscape of information available on social media.  Unlike Facebook, where a comment on an individual's wall could be seen by every "friend" on the network, Google+ users choose the individuals with whom they wish to share information.

Given the persistent complaints about user privacy on social networking sites such as Facebook, Google+ has a good chance to succeed where other social networking start-ups have failed.  However, it remains to be seen whether this development is a good thing for employers.

Technology in the Workplace
Technology and the Law More Generally
  • DNA on Discarded Clothing and Facebook Photo of Bank Robbery Suspect Lead Police to Her (ABA Journal)
  • Government Searches of Cell Phones, Computers, and Digital Property (Digital Passing)
  • Social Media and Discovery: Accessing Password Protected Material (GT LE Blog)
  • Supreme Court Accepts Case Challenging GPS Surveillance Without a Warrant (ABA Journal Blog)
  • Discovery in the Age of Cloud Computing (E-Discovery Law Review)
Technology in the News
  • "Virtual Cane" Lets Visually Impaired Navigate Via Sonar (Fast Company)
  • In US, Smartphones Now Majority of New Cellphone Purchases (Nielsen)
  • Hackers Release More Data From Arizona Police (Bits)
  • Google Introduces Facebook Competitor, Emphasizing Privacy (NY Times)
  • Medtronic launches mobile app for patient monitoring (MSP Business Journal)
  • U.S. Guidelines Aim to Bolster Software Security (NY Times)

Friday, July 1, 2011

The ICE Man Cometh . . . With a Notice of Intent to Audit

You may have noticed a slight chill in the air a couple of weeks ago when, for the second time this year, the U.S. Immigration and Customs Enforcement Agency notified 1,000 employers that it plans to inspect their I-9 records.  The Notices of Intent to Audit (“NOI”) that were issued on June 15, 2011, bring the total number of companies audited by ICE to more than 2,300 for this fiscal year, which already surpasses last year’s record of 2,196.  According to a statement issued by ICE, the employers affected by this most recent round of audits were selected primarily based on tips and leads, though there remains a focus on companies that provide critical infrastructure services, including construction, agriculture, water treatment, healthcare, and transportation industries.  Whether your company has received a NOI or you’ve been lucky enough to avoid one until now, it is important to understand what a NOI is and how it may impact your organization. 

The audit process begins with the service of a NOI by an ICE agent.  In addition to I-9 documentation, the NOI typically requests other information, including a list of all current and former employees, hire and termination dates, payroll records, quarterly tax statements, copies of any immigration filings, copies of any Social Security communications (including “No-Match” letters), Articles of Incorporation, lists of Federal contracts, and information regarding independent contractors.  The timeline to respond to a NOI is short, usually three (3) business days, although ICE is sometimes willing to provide a short extension of time to respond. 

Once the requested documentation has been turned over to ICE, a Forensic Auditor reviews the records and notes any deficiencies in the employer’s I-9 records.  If any technical or procedural violations (e.g. failure to ensure that the employee puts a date on Section 1, or failure to provide the business name and address in Section 2), are found, the employer is notified and allowed 10 days to correct the errors.  Unfortunately, however, employers do not get a chance to correct substantive I-9 violations, which include failing to reference a document number or relying on documents not listed as acceptable identity or employment authorization documents.  The difference between the two types of violations is that a substantive violation is one that is more likely to lead to the hiring of an unauthorized worker. 

Employers are generally fined between $110 and $1100 per substantive or uncorrected technical violation (the amount depends on the number of total violations), though the total fine may be adjusted up or down based on the application of certain aggravating or mitigating factors.  In addition, if, during the course of an audit, an employer is found to have knowingly hired or continued to employ unauthorized workers, it will face additional fines as well as possible criminal sanctions and debarment from future government contracts.  

So, what is the takeaway?  As the saying goes, an ounce of prevention is worth a pound of cure.  Don’t wait for ICE to darken your doorway before you take I-9 compliance seriously.  We advise employers to implement an effective and workable compliance plan for their organizations, including conducting regular I-9 audits, making any necessary corrections to forms, responding appropriately and timely to Social Security Administration No-Match letters, and training staff who complete I-9s on proper procedures.