Friday, September 30, 2011

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

Privacy is the issue of the week, as we attempt to keep up with a litany of exciting/alarming/fascinating developments.

One of the more interesting reads of the week is a blog post from the Harvard Business Review that describes the implications for employees, job seekers and companies of Facebook's newest feature, Timeline.  Timeline is Facebook's vehicle for creating a user biography in words, photos, video, music, etc.  How much of your biography do you want your colleagues to see?  A potential employer?  

In the European Union, plans continue to propose "right to be forgotten" regulations.  This post explains the proposed right. 

Hackers are aiming more energy at smartphones, the repositories of so many personal and financial details. 

In other news, Amazon has announced the pending release of several new Kindles.  The Kindle Fire, an Android tablet priced at $199, is aimed directly at potential iPad buyers.  The Kindle Fire will likely excel at media consumption tasks (reading books, watching movies, streaming music, playing simple games like Angry Birds) but lacks the features and performance that allow the iPad to function as a passable alternative for a laptop.  Some comentators believe that if the Kindle Fire is well executed, the iPad may have its first true rival. 

Technology in the Workplace
Technology and the Law More Generally
Technology This Week
Compiled and Contributed by Scott Raver

Thursday, September 29, 2011

Email as performance documentation: risks and rewards

In the course of defending employment discrimination claims, I’ve had the opportunity to review thousands of emails produced by clients.  Most often, we’re hoping that the emails will provide documentation of performance concerns or otherwise validate the company’s legitimate, non-discriminatory reasons for its actions.  Many times, we find ourselves in luck and are able to do just that.  More often though, we find emails that aren’t very helpful.  Those types of emails can range from content that makes the supervisor’s frustration with an employee quite obvious (i.e. forwarding an FMLA request from the employee on to someone else in the company and adding something like  “Surprise, surprise, guess who needs more time off.  Seriously.”) to something even more troubling (i.e. emailing HR “Do we really need to keep accommodating these leave requests?  Can’t we just terminate her employment?”).  

In reviewing these types of emails, I’ve reached a few conclusions: 

  • Most employees, including managers, don’t have an appreciation for the fact that their emails could very well be evidence in a future (or even existing) lawsuit;
  • Most employees, including managers, draft emails which contain content that they would never have put in a formal memo or a hard copy of a document; and
  • Most managers don’t have a good system for organizing performance related emails.

So what should employers be doing to address these problems?  Employers need to spend time training their managers on effective use of electronic communication.  The same advice that you would give regarding more traditional documentation methods applies to electronic documentation too.  For example, when drafting emails that address performance concerns, the manager should provide context, specific examples of the performance issues, and expectations going forward.  Often the emails are all you have to document performance issues.  Consequently, it is important for managers to realize that these emails need to tell the whole story in a way that a third party will be able to understand. 

Training should also include a discussion of what types of information should or should not be put in an email.  The place I observe the most problems in this area is communications among managers or between managers and HR.  Managers need to understand that sometimes it is better to just walk down the hall or pick up the phone and have a conversation, rather than put it in an email.

Finally, be sure that managers understand that emails can be recovered even if they’ve been deleted.    That being said, your company should develop a system for organizing performance related emails so that they can be retrieved easily when they are needed.  Just today I was talking with a client that didn’t have all of the relevant emails because the most recent emails sent from HR to the employee had not been filed electronically.  The only documentation that we had were the emails sent from the employee to HR, not HR’s responses.  Although the client can still retrieve the sent mail, it would be much easier if they developed a system of storing those emails as soon as they send the emails.

Friday, September 23, 2011

Technology, Law and the Workplace: Week in Review (The Borne Back Ceaselessly Edition)

"Can't repeat the past? . . . Why of course you can!"

The Great Gatsby, F. Scott Fitzgerald

This week, we thought we'd catch up on some trends and themes visited over the last several months in this space.

The New York Times featured the trend of employers who allow their employees to choose their own laptops, smartphones, etc. for work purposes, a trend we'd mentioned a few months back.

Hewlett Packard fired its CEO and hired Meg Whitman, formerly of Ebay.  The Wall Streeet Journal asks whether HP's board has historic qualities.

Research in Motion, maker of the Blackberry, continues to struggle.

Apple will introduce an iPhone at an October media event.  What exactly the new iPhone will offer is, of course, both unknown and the subject of many rumors.  Speaking of rumors, Amazon may have a iPad competitor to announce in September.

Finally, we've discussed employers using social media for screening new employeesHow about retaining current employees

Technology in the Workplace

How to Deal with Facebook Fits and Twitter Tirades (i-Sight Blog)

Technology and the Law More Generally
  • Ethics 20/20 Commission Fine Tunes Proposal on Technology, Outsourcing (ABA Journal)
  • FINRA Publishes Guidance for Securities Broker Use of Social Media (FINRA)
  • Social Media Site Topix Gets One Subpoena a Day for Email Addresses of Anonymous Commenters (ABA Journal)
  • America Invents: New Changes to Patent Law (IP Watchdog)
  • New Patent Law Could be Disastrous for Tech Entrepreneurs (Intellectual Property

Technology this WeekGoogle Launches Google Wallet (Google Blog)
  • Facebook is Ready for Your New Closeup.  Are You? (Wired)
  • Spotify Drops Invite Only and Adopts Six Month Free Trial (TechCrunch)
  • YouTube Tests DIY 3D (YouTube)
Compiled and Contributed by Scott Raver

Wednesday, September 21, 2011

Telecommuters – Are You Thinking About Their Safety?

The latest American Community Survey data shows that just over 2% of the U.S. workforce, not including the self employed or unpaid volunteers, considers home their primary place of work. That’s about 2.8 million employees. Some estimates conclude that 20 to 30 million employees work at home at least part time.  Many people believe that the number of telecommuters will increase over the next few years as technology improves and employers learn how to adapt to employees who are not present in the workplace.

Issues such as oversight, trust, and the ability to interact are all important to an employer with telecommuting employees. Employers must also think, however, about their responsibility for workplace safety and their potential liability for injuries to those telecommuting employees. Good pre-planning by the employer can help to limit liability.

So, when is an employer responsible for workplace safety and injuries in the telecommuting environment? The Occupational Safety and Health Administration (“OSHA”) rules say that generally, employers are not held liable for the safety of or required to inspect home offices unless the employer has notice of an OSHA violation that threatens physical harm and imminent danger. However, employers are responsible for
 work hazards in the home based office that are caused by materials, equipment, or work processes provided or required by the employer. As for injuries, the Minnesota workers’ compensation statutes hold employers responsible for work-related injuries, so long as the injury is sustained in the course of employment. Generally, it is up to the employer to demonstrate that the injury fell outside of the course of employment.

What does this mean for employers? Basically, it means employers need to think ahead and create written agreements and policies that address telecommuting. Written agreements with telecommuting employees should clearly state the standards and expectations the employer has regarding work space and equipment. If materials or equipment are provided by the employer, they should be maintained and repaired just as if they were in the workplace. Work processes should be reviewed to make certain that they do not create risk when performed in a home office or other remote environment. In addition, in order to limit workers’ compensation claims, the Agreements should address the hours of work, break periods, and other standards that will distinguish working time from personal time.

Monday, September 19, 2011

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

How do employees spend their time at work?  They perform work duties, of course, but a few other things as well.  For example, might they manage their fantasy football teams?  Sure.  According to the Fantasy Sports Trade Association, 32 million people play fantasy sports, the most popular of which is fantasy football.  Play games on their phones?  Yep, that too.  Surf the web?  You bet.  How concerned should employers be about their workers' time trolling the web and playing games?  While every employer should be very interested in what their employees do (and don't do)during work hours, a recent study suggests that cyberloafing improves productivity.

As with so many work matters, a thoughtful, common-sense, middle ground approach may be the best policy.

Technology in the Workplace

Technology and the Law More Generally
  • Net Neutrality Rules Approved by OMB: Stage Set for Litigation and Legislative Challenges (TMT Law Watch)
  • The Data Breach you may not have heard about, but should definitely care about (Massachusetts Privacy Law Blog)
  • Google Buys a Thousand IBM Patents (Engadget)
  • Author's Guild Sues Universities Over Book Digitization Project (Arts Technica)
  • Update Urged on Children's Online Privacy (NY Times)

Technology this Week
  • Google Flight Search vs. Kayak (NY Times)
  • Is AOL About to Announce its Own Social Network (ReadWriteWeb)
  • Boston Globe Redesigns Site, Erects Paywall (Boston Globe)
  • Metro (Windows 8) Introduced (Daring Fireball)
  • Facebook Becomes More Twitter-like with Subscriptions (Facebook)
  • RIM Suffers as Profit Falls 58.7% (NY Times)
Contributed and compiled by Scott Raver

Wednesday, September 14, 2011

Video Surveillance Technology: An Employer's Shield? Or Sword?

This week a story about workplace violence caught my eye.  More employers are turning to the use of technology--namely video surveillance cameras and similar high-tech security measures--to monitor employees and prevent theft and other kinds of misconduct.  Many employers have relied on this technology to successfully defend against claims of discrimination and wrongful termination when employees are caught on tape violating company policy or stealing.  But this story involves a twist.

In May, pharmacist Jeremy Hoven was working the overnight shift with three other employees at a Walgreens in Benton Harbor, Michigan when two masked gunmen entered the store and held another worker at gunpoint.  Hoven says he tried to call 911, but one of the gunmen jumped the counter and pointed his gun at him. That's when he drew his own gun and fired several times, prompting the gunmen to flee.  Hoven says he obtained a permit to carry a concealed weapon after the same Walgreens was robbed while he was working in 2007, but he failed to notify Walgreens that he was carrying a weapon while at work.  In this case, no one was physcially harmed, the store suffered no cash loss, and the entire scene was caught on the store’s videotape surveillance cameras. 

Hoven sued Walgreens for wrongful termination.  Normally such a lawsuit would involve claims for invasion of a right to privacy or related claims based on the employer's use of video surveillance cameras.  But Hoven is not upset about being caught on tape.  He is relying on the tape as his key piece of evidence and asserting his rights of self-defense.  

Walgreens released a statement defending Hoven’s termination, which reads, “Store employees receive comprehensive training on how to react and respond to a potential robbery situation. Law enforcement strongly advises against confrontation of crime suspects. Compliance is safer than confrontation. Through this practice, we have been able to maintain an exemplary record of safety.”

This story reminded me of many situations where I have advised clients who want to terminate an employee based on surveillance tape evidence. I emphasize consistent enforcement of employment policies as HR “best practice,” but I also recognize that each situation is different.  As an employment lawyer, I understand Walgreens’ position and reasoning, but I also understand why many people are questioning the company’s position after viewing the videotape.

In the end, the use of surveillance technology raises a number of practical and legal considerations.  Employment decisions based on evidence obtained through surveillance technology should be consistent with enforcement of company policy, but also based on sound judgment and reasonableness.  Clear evidence that an employee has violated company policy often supports a decision to terminate, but each situation deserves careful consideration and analysis. 

Monday, September 12, 2011

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

Michael Stern Hart died this last week.  Hart is credited with creating the first e-book in 1971 by typing the text of the Declaration of Independence into a computer and making it available for downloading via Arpanet, the government-sponsored predecessor to the internet. Hart personally added many more canonical texts through the years, and when the web exploded so did his project, which he called Project Gutenberg.  The database now contains 30,000 books in sixty languages.  Volunteers add hundreds of books each month, making works mostly within the public domain available for free to everyone with an internet connection.

Even in 1971, Hart envisioned the web as a place where information could be freely accessed and exchanged, and foresaw a time when e-books would be easily downloaded and transportable.  To learn more about Hart and his life's work, read one of many tributes written on the occasion of his death.

Technology in the Workplace
Technology and the Law More Generally
Technology this Week
  • Apple Wins German Ban of Samsung Tablet (Reuters)
  • Twitter Announces Activity: 400 Million Monthly Users (Twitter)
  • Inside Walmart's Super Social Shopping Agenda (Fast Company)
  • Michael Hart, Founder of Project Gutenberg, Dies at 64 (
Contributed and compiled by Scott Raver

Thursday, September 8, 2011

The Trade-Offs Presented by Employees’ Electronic Access to Confidential Business Information

As discussed in the previous post, protecting a company’s confidential business information and trade secrets is increasingly problematic in this era of electronic communication.   Even if an employer has the most detailed and well-written policy regarding the use and disclosure of confidential business information, it must take steps to ensure that the policy is being followed by employees.  If the employer fails to do so, or fails to take disciplinary action when the policy is violated, it may lose its ability to succeed on a legal claim for misappropriation of that information.  More importantly, the company will increase the likelihood that its confidential business information will get improperly disclosed and used.
It is, of course, commonplace these days for employers to provide employees remote access to computer systems.  It’s also common for hard-working and well-intentioned employees to electronically “check out” employer information for purposes of working at home after normal work hours, whether through downloading a copy of the document to a flash-drive or simply emailing a copy of a document to a personal email address.  It is unusual, these days, to find a professional, managerial, or high level sales employee who does not have electronic copies of confidential business information on a home computer or smart phone.  A company that claims to be wronged by the unauthorized dissemination of its confidential business information will not have a very strong legal position if it failed to limit the use or control the handling of confidential data,  or failed to monitor compliance with relevant policies.
The solution to this problem is not the same for every employer. Achieving the correct balance between confidentiality and efficiency requires a conscious balancing of two conflicting, but important, considerations: the desire to encourage enhanced productivity from employees and the need to carefully protect a company’s most sensitive business information.
The good news? There are technologies that can monitor and control the flow of information to and from employees’ computers and devices.  Training on the correct handling of confidential information can be extremely effective.  Consistent enforcement of confidentiality policies will encourage vigilance and discourage casual handling of information.  Proper use of carefully drafted employment agreements can significantly improve an employer’s legal position.  Careful assessment and preventive measures can make a big difference to an employer’s ability to protect its proprietary information in this age of electronic communication.

Wednesday, September 7, 2011

Do You Have Security Policies for Your Telecommuters?

This summer the Office of Management and Budget (“OMB”) issued a memorandum to the heads of executive departments and agencies in the federal government about implementing security guidelines relating to the Telework Enhancement Act of 2010. It is a good reminder that, while there are lots of benefits to allowing employees to telecommute, employers need to be cognizant of protecting their systems and data from the risks associated with telecommuting.  It is also a good starting place for thinking about what should be in your policies and procedures.

In December of 2009, President Obama signed the Telework Enhancement Act of 2010 (the ‘Act”).  The Act was implemented to improve telework in the federal government.  In the memorandum, the OMB recognizes the multiple benefits of telework (such things as resource savings, improved sustainability, and supporting the continuity of operations).  Nonetheless, the OMB notes that if telework is not properly implemented it may introduce new information vulnerabilities to the systems and networks. 

So what does the OMB recommend?  The OMB indicates that, at a minimum, federal agencies must address the following issues in their policies:
  1. controlling access to agency information and information systems;
  2. protecting agency information (including personally identifiable information) and information systems;
  3. limiting the introduction of vulnerabilities;
  4. protecting information systems not under the control of the agency that are used for teleworking;
  5. safeguarding wireless and other telecommunication capabilities that are used for teleworking; and
  6. preventing inappropriate use of official time or resources that violated the Standards of Ethical Conduct for Employees of the Executive branch by viewing, downloading, or exchanging pornography, including child pornography.
Do you have policies in place that take these guidelines into consideration?   If not, perhaps you should consider adding some policies.  If so, it may be time to talk with your IT adviser and make sure your policies are sufficient.

Tuesday, September 6, 2011

Technology, Law and the Workplace: Week In Review

The decision of the Department of Justice to block the proposed merger of AT&T and T-Mobile dominated this week's technology and legal news.  The antitrust case is before the court in Washington D.C.  Because the ultimate result will have an enormous impact on consumers of telecom services, both individuals and companies, this is definitely a matter worth watching closely.

According to a Pew survey, nearly two-thirds of adults in the U.S. use social media.  Now thoroughly mainstream and ubiquitous, how long will it be until social media is retired as a "hot" issue and becomes just another mundane part of our everyday lives?  Or are we already there?

Technology in the Workplace
Technology and the Law More Generally

Technology this Week

Contributed and compiled by Scott Raver

Is Any Business Information Truly Confidential Anymore in an Era of Web Proliferation?

In this era of ever-expanding web-based presences for businesses and the increased use of social media sites for job-related reasons, it is becoming much more difficult for employers to protect their important confidential business information and  trade secrets. 
 Businesses have a lot to lose when employees misuse confidential information. If a customer list, the details of a proprietary product, or company financial information gets into the hands of a competitor, a business may lose its competitive edge or its best customers. On the other hand, failure to use the power of the web to disseminate information can also hurt business success.  There is  a significant tension between the interest of a business in protecting the confidentiality of its valuable information and its interest in effectively market  services and products.  Employers must consciously weigh these competing concerns when deciding the best way for their particular business to operate.
Lawsuits concerning employees’ unauthorized taking and use of their employer’s confidential business information – commonly coupled with violations of non-compete obligations – are becoming increasingly common. When pursuing claims for the misappropriation of confidential business information or trade secrets, a company must be able to prove two key points:  (1) the information taken by the employee (most likely shortly before becoming an ex-employee) was indeed confidential; and (2) the employer took adequate steps to ensure that the information was kept confidential.  In today’s workplace, business information that may in the past have been kept relatively private, such as  listings of customers and vendors or detailed descriptions of available products or services, now routinely finds its way out into the public domain  through publication on the Internet.
Two of the most likely ways for this business information to become publicly available are:
  • Inclusion of the information on a company’s website
  • Disclosure in an employee’s LinkedInprofiles, or similar business social media sites
Once such disclosure occurs, even if it’s through the actions of an employee rather than the business itself, it becomes extremely difficult to prove that an employee’s or ex-employee’s dissemination of the information has caused damage to the business. It’s not easy to convince a judge or jury that stolen business information is truly confidential if that very information can be readily identified through a simple Google search or a visit to the employer’s own website.

If an employer wants to control the use of its confidential and proprietary information out in the world, it must begin by controlling the use of that information within the business and by its employees.  More on this complicated subject in a future post.

Friday, September 2, 2011

There Is Still Time To File H-1B Visa Applications For 2012

Are you contemplating filing an H-1B petition for a current or potential employee?  On August 26, 2011, the United States Citizenship and Immigration Services (“USCIS”) announced that it has received approximately 29,000 cap-subject H-1B petitions that were counted towards the 65,000 Fiscal Year 2012 cap.  Additionally, USCIS accepted roughly 15,800 petitions towards the 20,000 visa cap for persons who qualified for the H-1B advanced-degree professional exemption.  As a reminder, Fiscal Year 2012 begins on October 1, 2011, and H-1B petitions filed for this allocation must have a starting validity date of October 1, 2011 or later.  USCIS will continue to accept cap-subject petitions and advanced-degree petitions until the statutory limits have been reached. 

If you are not familiar with the H-1B visa classification, here are some quick facts:

Who is eligible?
The H-1B visa classification is for individuals employed in “specialty occupations” that require Bachelor’s degree in a particular field.  The foreign worker must possess the required U.S. degree or an acceptable foreign alternative.  In some cases, a combination of studies and relevant experience may be an acceptable substitute for the degree if it is determined by a credentials expert to qualify the foreign professional for the position.

What is the duration of an H-1B visa?
An H-1B visa may be granted for a period of up to 6 years, in 3 year increments.  An advantage to this visa classification is that the person may be deemed to have “dual intent,” that is, having the intent to remain temporarily in the U.S. in H-1B status while at the same time having the intent to become a permanent resident of the United States.  As a result of this dual intent provision, the person may stay in H-1B status longer than 6 years if a permanent residence application is pending.

Are there any prerequisites to filing an H-1B petition?
Prior to hiring an H-1B employee, an employer should confirm that the relevant job qualifies as a specialty occupation and that the prospective H-1B employee meets the qualifications for the job, including that he or she has a Bachelor’s degree or higher in a field related to the occupation and, if required, the appropriate state or local licenses.  The employer must also calculate the prevailing wage or request a determination from the U.S. Department of Labor (“DOL”).  Once the wage has been determined, the employer must submit a Labor Condition Application (“LCA”) covering the H-1B employee, which must be certified by the DOL.  Workers in the same occupation must also be notified of the employer’s intention to hire an H-1B employee.

What are the sponsoring employer’s continuing obligations?
A sponsoring employer has several continuing obligations after the H-1B petition has been approved.  Specifically, if the H-1B employee is assigned to a worksite not listed on the certified LCA, additional steps must be taken.  These steps must include a new posting at the additional work site or the filing of a new LCA (with a new prevailing wage determination), depending on whether the new work sites are within an area of employment listed on the original LCA.  Any material changes in the employment described in the H-1B petition must also be approved by USCIS through the filing of an amended H-1B petition.
The employer also has an obligation to maintain a public access file containing its LCA documentation and to produce this file to any person requesting it or to the DOL.  The DOL may inspect an employer’s public access file based on either a complaint from an aggrieved party or on its own initiative.  
Finally, the employer has an obligation to pay the costs of return transportation for any H-1B employee whose period of employment is terminated prior to the expiration date of the worker’s H-1B status.

Click Here for more information about the H-1B program and to keep up with the latest developments in the Fiscal Year 2012 cap season. 

Thursday, September 1, 2011

The cultural struggle over collective bargaining rights

The cultural struggle over collective bargaining rights continues with the National Labor Relations Board (NLRB) announcement that it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.   Private sector employers already must have large bulletin boards to post the many government-required notices to employees about various workplace laws.  Now employers may need to upsize those bulletin boards to comply with the new NLRB rule requiring employers to let employees know about their collective bargaining rights.  Of course, these rights have been a subject of frequent media attention and controversy this year. 

According to the NLRB’s Press Release (available  at the rule was published in the Federal Register on August 30.  A fact sheet with further information about the rule is available here.  Among the facts highlighted there is a reminder that federal labor law rights under the National Labor Relations Act (NLRA) apply to union and non-union workplaces alike, so all employers subject to the NLRB’s jurisdiction will be required to post the notice.

Under the rule private-sector employers covered by the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website and printed in color or black-and-white.  Translated versions will be available, and must be posted at workplaces where at least 20% of employees are not proficient in English.

The NLRB described the notice as being similar to one required by the U.S. Department of Labor for federal contractors, which states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. The notice also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.