Tuesday, August 30, 2011

Just How Much Information Should You Have?

Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information.  But, do you really want to do that?

Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants.  Employers store everything from names to social security numbers to discipline data on electronic systems.

You may say, well that’s just being efficient.  I’m all for efficiency, but employers need to be aware that they have to balance their need for information with the employee’s rights relating to the personal information that is being gathered.  We’ve all heard about companies that have been hacked and companies that inadvertently release protected information about employees or customers.  Both federal and state governments have reacted to those events by enacting laws relating to how you may use and store certain types of information.  Here are some of the restrictions employers gathering information need to think about:
  1. Under 325E.61of the Minnesota Statutes,  if employers do not encrypt personal information (first name or initial together with last name and social security number, driver’s license number or account numbers), they must notify all affected person of any unauthorized disclosure of the information.
  2. The Federal Fair Credit Report Act requires that information obtained from credit reporting agencies be managed and disposed of properly.
  3. The Federal Trade Commission (“FTC”) has entered into consent decrees with employers regarding their handling of employment records.  In a matter involving the Rite Aid corporation, the FTC filed a complaint against Rite Aid for, among other things, improper disposal of employment applications.  Rite Aid’s settlement with the FTC requires independent audits for twenty years, implementation of a comprehensive security program, and on site examinations by the FTC.
So, how should employers deal with this information?  Here are some guidelines:
  1. Only acquire information you use. Don’t acquire information simply because you always have. Focus on current business need.
  2. Restrict access to information so that only those with a documented business need can get it or pass it on.
  3. Adopt appropriate written policies regarding data security and retention, including:
    • Assigning responsibility for security of records
    • Training staff
    • Defining appropriate uses of information
    • Risk management
    • Response programs in the event of a breach

Monday, August 29, 2011

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

Steve Jobs stepped down as Apple CEO this week.  Because of his health issues, this was not shocking news but it is a shock.  Apple without Steve is a bit like Disney without Walt.  The company will continue, of course, and likely thrive, but will not be led by the personal, idiosyncratic vision that created it.

One notable practice that has led to Apple's success is the way in which it releases new products.  Many technology companies begin trumpeting new products long before their release, even before they have created usable prototypes of the products.  Tech enthusiasts have learned to become extremely skeptical of these pitches.  So many times, the great new tablet or PC or mp3 player or operating system or phone turns out to be much less than promised, and is released months or even years later than originally planned. 

Apple takes the opposite approach. It closely guards the details of its pending new products, despite numerous successful web sites, blogs and commentators devoted to unearthing those same details.  The products are announced only when Apple believes they are ready to be in the hands of users.   Regular Apple customers expect that the product will not be less or more than promised.  It may not be all that they want, and may cost more than they would prefer, but it will work as advertised. 

In part because of this approach to new product releases, Apple has built a fiercely loyal customer base (and benefits from months or years of free advertising prior to release). There is a simple lesson here: Do not promise your customers more than you can deliver.  Do not make promises that you cannot keep.  

Technology in the Workplace
  • How Much of Our Personal Lives Should be Under Employer Surveillance (Forbes)
  • Portability of Social Media Accounts: Here's Your Poster Child Example (HR Capitalist)
  • Cyberloafing Helps Work Productivity, Personal Emailing Doesn't, Study Finds (ABA Journal)
  • Led by LinkedIn, Social Media Recruiting Continues to Grow (ReadWriteWeb)
  • NLRB Social Media Memo Part 2: Unprotected Conduct (Lawffice Space)

Technology and the Law More Generally
  • Bloomberg Bolsters Legal Offerings with Deal to Buy BNA for $990M (ABA Journal
  • Samsung Cites Stanley Kubrick's 2001: A Space Oddysey Movie as Prior Art Against iPad Design Patent (Foss Patents)
  • In Britain, a Meeting on Social Media (NY Times
Technology this Week

  • Without its Master of Design, Apple will Face Many Challenges (NY Times)
  • Merriam-Webster Dictionary Now Includes "Tweet", "Social Media", Crowdsourcing" and More (TechCrunch)
  • How Social Media Affects Search Engine Optimization (Neil Patel)
  • New Apple CEO Tim Cook: I'm Thinking Printers (The Onion satire) 
  • McAFee: Android Malware Problem Getting Worse, Now Most Targeted Platform (Slashgear
Compiled and contributed by Scott Raver

Wednesday, August 24, 2011

When the DOL Comes Calling - Can Technology Help You Defend an Audit?

One of the most litigated issues in today’s employment arena is the classification of employees under the overtime exemption provisions of the Fair Labor Standards Act (FLSA). Generally, under the FLSA, employees must be paid overtime for any time worked over forty (40) hours per week. However, the FLSA also classifies certain types of positions as exempt from the overtime requirements. In order to qualify for the exemption, the employee must meet the specific requirements of each exemption. Unfortunately, many employers wrongfully classify employees as exempt when, in fact, the employee does not qualify for the exemption.

There are many ways in which the exemption status of an employee may be challenged. In the current environment, class action lawsuits are popular. However, employees may bring these types of lawsuits on their own or ask the Department of Labor to investigate; in fact a disgruntled employee is often the trigger for an audit. In addition, the Department of Labor conducts random audits.

When the Department of Labor or a court determines that an employee is wrongly classified, the employer will be liable for the payment of the overtime that should have been paid to the employee. For employers, the amount to be paid is often difficult to determine because most employers do not have their exempt employees keep track of time worked. Interestingly, disgruntled employees seeking unpaid overtime often have their own record of the hours worked, and will present that information to the Department of Labor. (In fact, as one of our authors pointed out, the Department of Labor has created an iPhone application to assist employees in doing just that.)

So what can the employer do to prove the actual hours worked? Well, in today’s world there are a number of technologies used in the workplace that employers should think about when trying to recreate the time worked by the employee. Such technologies include:

1) Information about when an employee logged on and off of a computer, which is available on most computer systems.

2) Information derived from a security system that shows when the employee enters and leaves the building.

3) Security cameras in the workplace, which often log the time and date and can show when an employee was present.

4) Automated devices to track the delivery of product, used by many delivery and other drivers. Those devices usually have a time of day and location which can be used to show when the driver was working.

5) Data on employer-owned mobile devices.

Employers should be aware that sometimes, everyday technologies can provide resources that were not considered as benefits when the technology was put in place. In addition, when evaluating new technologies, employers may want to think about services and options that can assist them with Department of Labor audits or other types of investigations.

Tuesday, August 23, 2011

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

The headline news this week is the report from The National Labor Relations Board summarizing recent social media opinions and offering additional guidance.   Analysis from commentators and bloggers is only beginning to appear online, and we will be sure to include the most relevant and incisive articles in future postings.  Our impressions are posted just below.

In the broader world of technology, HP's decision to stop producing Web OS products and sell their TouchPad tablet at the fire sale price of $99 prompted comments from legions of tech bloggers.  The most concise explanation of the significance of the sudden popularity of the TouchPad is offered here.

Technology in the Workplace

The Federal Labor Law Guide to Social Media (non)Compliance (Employer Handbook)

Tweet Freely! Employers Get Some Guidance About Social Media (Employment & Labor Insider)

More Guidance from the NLRB: When Must an Employer Not Fire an Employee for an Offensive Facebook Post (Workplace Privacy Counsel)

Nodody Wants to Made an Example of - Crafting Social Media Policies (Social Media Blog)
Board Revisits Register Guard Email Case (Labor Relations Counsel)

Technology and the Law More Generally

Fired First Year Lawyer Sues for $77M; Emailed Partners That Firm Didn't Appreciate His "Superior Legal Mind" (ABA Journal)

In Germany, Facebook's Like Button Declared Illegal (The Local)

The FTC vs. Google: Who are you Going to Call? (Legal Bytes)

Technology this Week

A Simple Explanation for Why HP Abandoned Palm and is Getting Out of the PC Business (Daring Fireball)

Report: Tablet Market to Belong to iOS, Android Through 2017 (NY Times)

Federal Push For Cloud Technology Draws Skepticism (NY Times)

From HP To Amazon, the Tablet Dilemma: Go Big or Go Home (Wired)

Compiled and contributed by Scott Raver

NLRB Guidance on Social Media and the Labor Law

Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB).  (NLRB Press Release and link to the GC’s Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases)  In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GC’s analysis. 

Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GC’s labor law analysis in setting policies and drafting employee handbooks.  Policies maintained by an employer, even without any enforcement, can be a source of labor law disputes before the NLRB.  Sometimes more importantly, they can become significant obstacles to union avoidance when there is union organizing in the workplace.   

Here are some of the key points about policy drafting from the GC’s Analysis.

  • A workplace policy may violate the labor law even if the employer has never applied or enforced the policy.  The NLRB’s inquiry in this regard is whether simply having the policy and publishing it to employees would tend to chill the exercise of employee’s labor law rights. 
  • The NLRB often finds a policy to be in violation of the NLRA where it is simply “overbroad.”  Because of this, it is important to carefully define key policy terms.  The NLRB also expects employers to clearly limit the application of a policy so employees know it will not be applied to interfere with their NLRA Section 7 rights to engage in or refrain from concerted activity. 
  • It may be sufficient to approach such limitation by simply stating something like, “the employer’s policies will not be applied, and should not be construed, to interfere with the exercise of any right protected by Section 7 of the NLRA.” 
  • On the other hand, it seems as if the NLRB will sometimes expect a limitation to be stated more specifically so that the policy cannot be “reasonably construed” to interfere with employee rights. 
  • For example, it might be necessary in a social media policy to state that the policy will not apply where employees are engaged in discussions with or on behalf of coworkers about terms or conditions of employment, perhaps including wages and benefits.  In a policy prohibiting employees from posting anything that identifies them with the employer, it might be necessary to state the policy will not apply in any situation where there is a concerted protest related to a “labor dispute.”  In a policy prohibiting disparagement of the employer, there might need to be a similar exception for situations involving concerted activity over terms and conditions of employment. 
One primary question for many employers coming from the GC’s analysis will be whether the employer can stomach the policy limitations the NLRB has in mind.  Is the employer willing to write a policy that allows a worker to call his supervisor a “scumbag” without facing discipline as the NLRB’s rulings contemplate?  If not, many employers will face the difficult choice between drafting and maintaining policies in a form workable for operating their businesses on the one hand or in a form acceptable under the NLRA on the other.  

While this choice is not very palatable, it can at least be said that the GC’s analysis provides a somewhat greater degree of certainty in these matters than employers may have felt they had before.  If only that certainty seemed to fit a little better into the realities of the modern workplace! 

New Guidance on Social Media and the Labor Law

The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GC’s recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GC’s Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRB’s enforcement activity in this emerging area of the law. 

The GC’s analysis certainly does not answer every question about the Board’s enforcement in this area, nor does it represent the opinion of any Circuit court faced with a challenge to enforcement of an NLRB decision.  Nevertheless, the published analysis provides key learning points for employers and their counsel to keep in mind when considering the rights and duties of employer and employees where social media comes into play.  Remember that the GC’s analysis applies to unionized and non-unionized workplaces alike.

Some key points from the GC’s Analysis include the following. 

  • An employer may discipline an employee based on social media activity as long as the social media activity does not involve conduct protected by the National Labor Relations Act (NLRA). 
  • To be protected by the NLRA an employee’s activity must be “concerted.” 
  • To be concerted means the employee’s social media post or other activity is made “with or on the authority of other employees, not solely by and behalf of the employee.” 
  • The requirement of concerted activity is no different on social media than in other contexts to which the NLRB has applied this principle. 
  • The NLRB will tolerate a fair degree of distasteful conduct by employees in a social media context, just as it does in other settings.  In one of the cases analyzed, employees’ swearing and sarcasm in Facebook posts did not, according to the GC, result in loss of protection under the NLRA. 

There are more lessons to be drawn from this analysis, including important ones about drafting and enforcing social media and related policies.  We will discuss more of these key points in upcoming Modern Workplace posts. 

Friday, August 12, 2011

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

A recent survey suggests that a great many companies are using social media to screen potential hires.  In many ways this seems like a modern no-brainer.  Social media sites provide easily accessible insights into the personal and professional lives of people we don't know in ways that would have seemed unimaginable only a short time ago.  Of course, as discussed in some of our previous blog posts, there are legal risks in using social media to screen applicants and in making employment decisions.  Are you accessing data that you're prohibited from using in your decision-making process, such as the applicant's gender, race, or national origin?   Is that online work history on LinkedIn accurate?  Exaggerated?  Just plain false?  Also, is it wise to make hiring decisions based on an employer's impressions of a potential hire's Facebook page?  Other legal risks are discussed in previous blog posts (4/14/2011; 3/31/3011; 3/9/20011; 3/4/2011) about the use of technology in the hiring process and with respect to current employees.

Another question: How would an employer assess an employee who is invisible on the web?   In Europe, citizens are demanding the right to control, or remove, information about themselves on the Internet. A court case in Spain involves ninety plaintiffs who have demanded that Google stop indexing information about them.  The European Union may adopt "right to be forgotten" regulations as early as this fall.  If companies expect to gather information about potential employees via the web and social media, will they be less or more likely to hire those who opt out of the digital realm?  This blog post from the Harvard Business Review suggests a clear answer to that question.

Technology in the Workplace
Technology and Law More Generally

  •  California Bans Jurors from Utilizing Social Media to Discuss their Cases (Shear on Social Media)
  • Apple Wins Order Against Samsung Tablet in EU (Bloomberg)
  • Gizmodo Officially not Being Charged in iPhone 4 Case (Gizmodo)
  • Europe Takes its Own Path on Internet Privacy (NY Times)
Technology This Week
  • Blackberry's Fall from Executive Suite to London Looters may Bruise Brand (Bloomberg)
  • $2 Erasable E-paper Aims to Replace Paper (Geek.com)
  • AOL Posts Loss, Citing Weak Gain in Ad Sales (NY Times)
  • Would You Like Some Solar with That?  Ford to Sell Panels Along with the Electric Focus (Fast Company)
  • Bing Keeps Chipping Away at Google's Market Share (Business Insider)
Compiled and contributed by Scott Raver

Wednesday, August 10, 2011

Catching Up to the 21st Century: Courts and Social Media

The proliferation of social media has presented businesses with many challenges as well as many opportunities.  To address the challenges, employers have adopted policies aimed at guiding employees on appropriate use of social media.  Due to the slow pace at which cases make their way through our legal system, there is a dearth of published court opinions analyzing the propriety of such policies.  A recent Minnesota Court of Appeals decision is one of the first in this state to provide such guidance.  Although the case involved a student disciplinary matter at a public university, the Court’s decision has broader application and provides helpful insight into how courts are likely to view similar disciplinary issues in employment settings.

The Facts
Amanda Tatro was a mortuary-science student at the University of Minnesota.  As part of her coursework, she was assigned to work with a cadaver whom she named “Bernie.”  Tatro had a Facebook account that allowed “friends” and “friends of friends” access to her postings.  This meant that hundreds of people had access to her posts, some of which commented on her studies in a manner which the university deemed harassing and inappropriate. 

In one such post Tatro stated, “Who knew embalming lab was so cathartic!  I still want to stab a certain someone in the throat with a trocar [a long hollow needle used during embalming] though.  Hmm.. perhaps I will spend the evening updating my “Death List # 5” and making friends with the crematory guy.”  Another post expressed sadness about no longer getting to be with “Bernie” and suggested that she kept a lock of his hair in her pocket.

After receiving a report from another student, the University suspended Tatro pending its investigation.  Following a disciplinary hearing Tatro was given a failing grade for the embalming-laboratory course.  Tatro appealed the University’s decision and in July 2011, the Minnesota Court of Appeals affirmed the disciplinary action.

Lessons Learned
While the case addresses First Amendment and higher education questions that are of little import to most employers, the Court’s discussion provides useful insight for employers considering how best to address social media issues in their workplaces.  The court makes clear that the fact that Tatro’s conduct occurred off-campus was irrelevant to the analysis of whether the University had a legitimate interest in monitoring her behavior, especially given Tatro’s statements about wanting to “stab” someone in a classroom.  The Court recognized the University’s interest in protecting individuals on campus from threatening conduct, saying “Indeed, the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence.”  In an age where violence in the workplace is at least as prevalent as violence on campus, it is safe to assume that courts will recognize that employers have a similar, substantial interest.

Another aspect of the case that had implications for employer social media policies.  The Court rejected Tatro’s argument that, when read in context, the statements on her Facebook page were literary expression intended to be satirical.  Tatro stated that she had recently ended a relationship with someone who had no connection to the university, and that her statements were jokingly directed at him.  In the disciplinary hearing, staff and students testified about their concern that Tatro’s statements may have been directed toward them.  The court held that it did not matter what Tatro intended.  What mattered was the fact that her statements were reasonably viewed by others as threatening. 

It is also noteworthy that the Court accepted the validity of the University’s concern about the impact of Tatro's conduct on its donor program.  One of the policies Tatro was found to have violated was a rule that prohibited students from engaging in conversation about cadaver dissection outside the laboratory in a manner which is not “respectful and discreet.”  Although the decision focuses on conduct outside the classroom rather than outside the workplace, the Court’s rationale appears applicable in both contexts.  It suggests that even though an employee is off-duty, his or her conduct can still have adverse consequences on a business; therefore, employers likely have some ability to take adverse action against employees who engage in misconduct outside of work.

It is inevitable that more and more judicial decisions will be made defining courts’ view of social media issues.  So far, employers should like what they see.  Cases like this one suggest that the courts will take note of the practicalities and give employers latitude in protecting legitimate business interests.

Friday, August 5, 2011

U.S. Chamber Releases Summary of Social Media Disputes

The U.S. Chamber of Commerce just released a Survey of Social Media Issues Before the National Labor Relations Board (report available here and reported on here). The report summarizes of NLRB actions involving social media and related issues. According to the Chamber’s review of more than 129 cases: 
The issues most commonly raised . . . allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
Technology provides employees and unions with tools that can be simpler and more effective than one-on-one conversations or picket lines. Employees’ and unions’ use of social media can also be disruptive to the workplace and damaging to the employer’s reputation.

The summaries in the U.S. Chamber of Commerce report provide instructive guidance for employers seeking to craft policies or respond to employees or unions utilizing social media.

Of particular interest is this report’s finding that a significant percentage of the cases surveyed involved non-union employers with no previous history of union involvement. This area of law is bound to continue to evolve as the NLRB seeks to apply legislation crafted in the Great Depression to the brave new workplace.

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

Many analysts from both sides of the ideological fence believe that the economy as a whole may suffer in the wake of the recent debt ceiling deal.  Few believe that the bill offers much to aid job creation or brighten the immediate prospects of the unemployed.  It is hard to find a single opinion piece, news article or blog post, regardless of political orientation, that does not express profound distaste for the compromise.

So who is (relatively) happy with the bill?  Government technology workers seem to have escaped  the wrath of a measure that seeks to cleave trillions from federal spending.  This small sanctuary carved out for government technology reflects a belief that superior technological know-how and equipment is critical to efficiency, and that spending on technology now is necessary to save money in the future.  If the economy does continue to lag, and private employers seek to reduce costs, it will be interesting to note whether the private sector follows the example of the federal government through continued investment in technology.

Technology in the Workplace

  • Sixth Circuit Decision Leaves Employers with Few Options in Response to Union High Tech Tactics (Employer Law Report)
  • When Can Employers Lawfully Fire an Employee for an Offensive Facebook Post? Ask the NLRB - (Privacy Law Blog)
  • 45% of Employers Still Don't Have Social Media Policy (Delaware Employment Law Blog)
Technology and the Law More Generally

  • Missouri Outlaws Teacher-Student Facebook Friendships - (ABA Journal)
  • The Controversial Nanotech and Myriad Case; Some Thoughts (Cleantech & Nano Blog)
  • Could Facebook lose its Facebook Trademark (Techdirt)
Technology This Week

Compiled and contributed by Scott Raver