Friday, October 28, 2011

Technology in the Workplace: Week In Review (Generation Edition)

Technology can change faster than policies, procedures and people. There is a gap between how generations work and communicate - yet they have to work together. The articles here focus on the newest ways we use technology in our lives and workplace, and whether the new is better than the old.

Technology and the Workplace
Only those 35 and Younger, Gen Y Capital Partners Fund Young Tech Entrepreneurs Only (TechCrunch)
When Will Employees be Replaced by Robots? In New York Casinos, Now. (Gizmodo)
Employees and Ipads: Bonuses, Gifts and Hearing Aid Adjusters? (Star Tribune)
Technology and the Law
U.S. Supreme Court Justices, Communication by Hand-Delivered Memo (ABA Journal)
Largest U.S. Telecommunications Company, AT&T Settles Nationwide Age 
Discrimination Suit (Inside Counsel)

There's an App for That
Writing, Typewriter v. The Amazing Typewriter App (Gizmodo)
Cars, Going to the Dealership v. Dynolicious (NY Times)
Business Influence, Real Clout v. Klout (Mashable)
Books, Book Club v. Subtext (Gizmodo)

Compiled and Contributed by Larie A. Pampuch

Thursday, October 27, 2011

Supreme Court Preview

In its 2010 Term, the Supreme Court issued a number of interesting opinions on employment law topics such as class action lawsuits (invalidating a class action brought by 1.5 million current or former Wal-Mart employees), retaliation and Title VII (allowing a third-party to bring a retaliation claim because of association under Title VII) and immigration (allowing states to punish employers for hiring unauthorized workers).
The Court’s 2011 Term has fewer high-profile employment law cases, but a few cases are worth watching, including:
Hosanna-Tabor Church v. EEOC is of particular importance to religiously-affiliated organizations.  The Court will decide whether the “ministerial exception,” which generally prohibits most employment lawsuits brought by employees performing religious functions against religious organizations, prohibits a lawsuit brought  by an elementary school teacher at a religiously-affiliated school who taught both secular and religious subjects.  Other blog commentary here and here.
In Knox v. SEIU, the Court may define important boundaries for the the requirements that non-union members represented by a union must still pay at least a portion of normal union dues.  Particularly, the Court will decide whether a state may condition employment on the payment of a union fees or assessment intended solely for political and ideological expenditures.
One case is noteworthy enough to mention even though the Court hasn’t yet determined whether to hear it.  Fisher v. University of Texas is not an employment case.  However, the outcome of the case will be critical to college and university admissions, and it could have a significant impact on diversity and affirmative action efforts by private employers.  A student, denied admission to the University of Texas, challenges the university’s racial and ethnic preferences in admissions.  The lower court upheld UT’s program. 
If the Court accepts review, the present, more conservative Supreme Court majority may draw firmer lines than in two landmark 2003 opinions involving the University of Michigan.  In the first, Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion held that the Constitution does not prohibit the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  In Gratz v. Bollinger, however, the Court struck down a more rigid, point-based admissions policy.  Commentator’s believe (e.g., here and here) that the current Supreme Court is less likely to accept the nuanced distinctions of the Court’s 2003 opinions.

Friday, October 21, 2011

Technology in the Workplace: Week in Review (The E-Verify Edition)

Immigration is among the thornier and most complicated of all political issues, and also one of the most consequential to employers.  A representative example: The current debate surrounding the federal worker eligibility status database, E-Verify.

One would think a program whose origins lie in legislation passed under Reagan, piloted under Clinton, expanded under George W. Bush and championed by the Obama administration would garner broad bipartisan and popular support.  Instead, it has been forcefully opposed by groups spanning the ideological spectrum, from the Tea Party Nation and the Competitive Enterprise Institute on the right, to the AFL-CIO and other labor unions on the left, to coalitions of business owners that fall somewhere in the pragmatic middle.

E-Verify promises an easy, efficient method to check a potential employee's eligibility to work.  Employers enter information from the completed Form I-9 into a simple government web interface to determine whether a new hire is eligible to work in the United States.  Ideally the process is fast and immediate, not unlike paying a bill online.

Enrollment is currently required for certain federal contractors and subcontractors under federal law. A number of states and municipalities have also passed laws mandating use of E-Verify, and a bill in Congress that would eventually require all employers to use E-Verify, the Legal Workplace Act, is currently being considered in the House of Representatives (though may have stalled).  Mitt Romney and Newt Gingrich have spoken favorably about E-Verify in the Republican debates.

Unfortunately, studies of the database have demonstrated a number of shortcomings. Error rates within the system are high, disqualifying workers that should be eligible and allowing some that should not be legally hired.  The system is also "vulnerable to identity theft and employer fraud", according to a recent Government Accounting Office report.  Illegal immigrants have found that E-Verify is an easy system to circumnavigate by using someone else's identification information, with our without that other person's knowledge.  

E-Verify may also not be as efficient as hoped.  According to Bloomberg Government, employer costs associated with checking the employment eligibility of new hires would have been approximately $2.7 billion in 2010 had E-Verify been required of all employers. Those costs associated with E-Verify participation may hit small businesses especially hard, because they do not have human resources departments to ensure that proper procedures are followed or deal with any snags, and may not have the resources to pay the hefty penalties levied for erroneously hiring illegal workers.  Some studies suggest that significant job loss would occur if the system became mandatory for all employers.

California recently passed a law banning required use of E-Verify by employers, largely in response to the enactment of ordinances by a number of California cities mandating its use. 

Despite the flaws detailed in the Government Accounting Office report and elsewhere, the administration continues to promote use of E-Verify, and the Legal Workplace Act is supported by national business groups such as the U.S. Chamber of Commerce and the National Restaurant Association.  There is not an alternative database, either current or planned, that offers the same sort of simple worker eligibility verification for employers. 

Several articles below describe the database and the issues surrounding E-Verify, and present various points of view.  We'll keep an eye on the continuing debate in Congress, at the local level, and as the subject of political theater in the upcoming elections.

Technology in the Workplace

New California Law Bars E-Verify Requirement for Employers (LA Times)
Mandating E-Verify Would be a Mistake (Salt Lake Tribune)
E-Verify Should Go National (Arizona Republic)
Another Immigration Misconception (NY Times)
Testimony from Craig Miller of the National Restaurant Association in Support of E-Verify (
AT&T Toggle Phone Feature Lets Users Separate Business, Personal Data (Security News Daily)
Who is GINA and What Does She Have to do with Your Facebook Page (Inside Counsel)
Social Media Survey from DLA Piper (DLA Piper)
Adverse Impact Calculator (Quantitative Solutions for Workplace Issues)

Technology and the Law More Generally

iPhone Accelerometer Could Spy on Keystrokes (Wired)
HTC Loses Early Patent Decision vs. Apple (Reuters)
Social Media Giant Sued For Trademark Infringement (Again) (DuetsBlog)

Technology This Week

RIM Apologies with Free Apps (TechCrunch)
The State of Social Media 2011: Social is the New Normal (Fast Company)
Google Unwraps Ice Cream Sandwich, the Next Generation Android OS (Wired)
RIM Unveils an Upgrade, But Little Else (NY Times)
GroupOn IPO may be Valued at $12 Billion (DealBook)

Contributed and Compiled by Scott Raver

Thursday, October 20, 2011

Telecommuting: Are Your Employees Getting Work Done When They’re Working From Home?

When confronted with an intensive, time-sensitive writing project, there’s nothing I like more than taking a day out of the office to set up shop at my kitchen table and crank the thing out in my jammies.  Apparently, I’m not alone.  According to a CareerBuilder survey, more American workers are working from home on a regular basis, and 30 percent like to do so in their pajamas (41 percent of females and 22 percent of males).  The more startling statistic in CareerBuilder’s report is that nearly one in five Americans who work from home spends less than an hour per day doing actual work.  This statistic has caused some controversy, as reports like this one claim a spike in productivity when workers telecommute.  I work from home occasionally to escape office distractions, but there is no question that working at home can present its share of distractions, too.  These often include things like doing another load of laundry, watching the Today Show instead of getting work done, letting the dog out (and then in, and then out), running errands, surfing the internet, or keeping track of kids.  CareerBuilder and others have offered ideas for the telecommuting worker to stay motivated and on-task, but what can an employer do to ensure that employees working from home are actually working?
Although it may be predictable advice from an employment law attorney, have a policy that covers telecommuting.  A telecommuting policy should set forth general principles and guidelines for telecommuters, including that the telecommuter is expected to perform all duties and responsibilities assigned to him or her, and that the employer’s policies apply to all workers, no matter their work location.  Set forth guidelines for requesting permission to telecommute, and make clear that telecommuting is not a substitute for child care.  Other issues to address include timekeeping and workplace safety.  If telecommuting workers are non-exempt, there should be a plan in place for recording and reporting hours so as not to run afoul of wage and hour laws.  As for safety, an employer is legally obligated to provide a workplace free from hazards, and the employer may still be liable for workplace injuries even if they happen in the employee’s home. As explained in an earlier post, employers must clearly communicate expectations for reporting injuries that take place on working time, and reserve the right to periodically inspect a home office for safety (with advance notice). 
In addition to a policy, employers should have an agreement in place with each individual employee who regularly telecommutes to address these issues as they specifically apply to that person.
Different employers may come to different conclusions about whether telecommuting is a good idea for their workforce.   Those who want to offer this flexibility should put expectations in writing and measure employees’ performance against those expectations, just like you would for any other employee.  If workers are getting good work done in their jammies, it’s a win for everyone.

Friday, October 14, 2011

Technology and the Workplace: Week in Review (Watching the Trends Edition)

As we follow the tech trends in this space, the fortunes of Google and Apple continue to grow and, alas, RIM, the maker of Blackberry, continues to struggle.  Blackberries remain an integral part of many workplaces, but it is clear that a growing number of employers will allow, provide or encourage employees to choose other devices, and that the Blackberry's share of the corporate marketplace will, at least in the near future, continue to tumble.   Privacy, security and training issues for employers are all impacted by the choice of smartphone device.   This is a trend we will continue to watch.

A number of commentators have constructed summaries of the the NLRB's social media opinions; a brief but useful one is featured below, along with a link to an audio clip of the NLRB's Acting General Counsel discussing the issue.  It is worth a read and a listen. 
Technology in the Workplace
Technology and the Law More Generally
Technology this Week
  • Stanford Research Unveils Latest Internet Privacy Study (Inside Privacy)
  • Blackberry Outage Spurs Law Firm to Consider Switch (ABA Journal)
  • All Apologies: NetFlix v. RIM in Mea Culpa Matchup (Fast Company)
  • iPhone 4s Sales May Reach 4 Million This Weekend (Business Week)
  • Microsoft Acquisition of Skype Now Official (Mashable)
  • Google Chrome Could Beat Firefox by Year-End (PC World)
Compiled and Contributed by Scott Raver

Thursday, October 13, 2011

Don’t Forget About the Digital Divide When Hiring Online

CNN reported this week that the number of wireless cell phone and tablet devices in the U.S. has outpaced the U.S. population.  With all of this connectivity going on, it could be easy to forget that not everyone has equal access to the internet and an equal ability to apply for jobs online.  Studies in recent years indicate that minorities and disabled individuals, as a group, have less or different access than Caucasians and non-disabled persons.  As a result of this disparity, often dubbed the “digital divide,” employers should tread carefully in establishing exclusive online application systems and in relying too heavily on online sources and job candidates’ online presence to identify and select candidates.
            As we noted in a previous blog entry, the U.S. Equal Employment Opportunity Commission (“EEOC”) has increased its enforcement efforts in the hiring area through its E-RACE initiative, which is focused on eliminating race discrimination in hiring.  In particular, the EEOC is focused on applicant screening, testing, and selection devices – including the use of technology in hiring - that may have an unlawful disparate impact on minorities.  A disparate impact claim arises when a facially neutral practice – such as an online recruiting – disproportionately impacts a legally protected group and is not sufficiently job related and consistent with business necessity.
            It is increasingly becoming the norm for employers to have online application systems and to search for applicants online through social media sites such as Linkedin.  Studies in recent years indicate, however, that, while progress has been made, a divide still exists in use of broadband internet.  A 2010 study conducted by Princeton Survey Research Associates International indicated that one in four Americans live with a disability that impacts their daily living and only 54% percent of disabled adults use the internet as compared to 81% of non-disabled adults.  A 2010 report published by the U.S. Department of Commerce indicated that while almost 70% of white households had high-speed internet, only 48% of Hispanic homes, 48% of American Indian or Alaskan Native, and 49% percent of African-American homes had that access.  In addition, to the extent that the racial gap on internet access is narrowing, it appears that minorities are increasingly accessing the internet through cell phones or mobile devices.  While increased usage is good news, it is more difficult, if not impossible in some cases, to complete online job applications or upload resumes and cover letters to an online application system on a mobile phone.
            A divide also appears to exist in connection with individuals’ online presence.  Quantcast, a media measurement, web analytics service, has published statistics that indicate that Linkedin, one of the leading online sites used for networking and recruiting, is predominantly white.  According to Quantcast, the majority of people in the U.S. using Linkedin are age 35 or older and 85% of U.S. users identify themselves as Caucasian.  According to Quantcast, only 5% of U.S. Linkedin users identify themselves as African American, 7% as Asian, and 4% as Hispanic.
            These statistics and the EEOC’s increased enforcement efforts warrant attention by employers.  While online recruiting practices can and do serve legitimate business purposes, employers should take care to ensure that they consider their nondiscrimination obligations and that their practices are job-related and justified by business necessity.  Employers should also consider continuing to recruit job applicants in more traditional ways, rather than just online.  Employers may also need or want to establish alternative application methods for individuals who may not have internet access or, due to a disability, may be unable to apply online.  In addition to non-discrimination requirements, employers with at least 15 employees have an obligation under federal law to provide reasonable accommodations during the application process to allow disabled individuals to be able to apply.

Friday, October 7, 2011

Technology and the Workplace: Week in Review (The Jobs Edition, Take Two)

We featured Steve Jobs in this space only a short time ago when he retired as CEO of Apple, and his death this week has compelled us to showcase Jobs again.  Many, many tributes and rememberances were written this week, and you can find a few that provide insight into Jobs' vision, personality and legacy below.

For the last several weeks we've featured articles that explore prospective employer recruiting, information-seeking and monitoring via social network research. A recent start-up, Reppler, helps people manage their online professional and personal repuation.  A survey taken by Reppler, and described in a fascinating Forbes article, describes the characteristics a typical employer hopes to find online about prospective employees.  It is worth noting that Reppler's corporate parent is named
SafeToBe.Me, Inc.

Technology in the Workplace

Technology and the Law More Generally

Technology this Week
  • Jobs: Imitated, Never Duplicated (Pogue's Posts)
  • Steven Paul Jobs (WSJ)
  • Steve Jobs as Frank Lloyd Wright (Wired)
  • Jobs Best Quotes (Gizmodo)
  • YouTube Launches Political Channel (YouTube)
  • India Rolls Out World's Cheapest Tablet (NDTV)
  • Apple Introduces iPhone 4S, iCloud, iOS 5 (Apple)
  • App Turns Table on iPhone Thief (NY Times)
  • FCC Plans to Direct More Support to Broadband (NY Times)
Compiled and contributed by Scott Raver

Thursday, October 6, 2011

The “Consumerization of I.T.” – Just Another Double-Edged Sword for Employers

A recent article in the New York Times highlighted, yet again, the significant challenges faced by employers when they try to balance the possibilities of technology with the need to protect company data.  That article  discussed allowing employees to conduct company business through the use of their own personal computers and devices.  This development is being referred to as the “consumerization of I.T.”  In a nutshell, consumerization of I.T. represents a significant shift away from a closed technology system, in which an employer supplies all computers or other devices (such as smartphones or tablets) to be used by its workforce and supports only that hardware.  Some employers are moving instead to more open systems, in which employees are routinely allowed – perhaps even encouraged – to use their own laptops and other devices.  The popularity of the iPad is frequently pointed out as playing a key role in this movement.  Some are predicting that this movement could eventually lead to the use of open systems for the software used by employers, including word processing software.
Although this consumerization approach offers significant benefits to employers, including increased employee productivity (due to the use of their most favored forms of technology) and decreased hardware costs (because employees often pick up all or a portion of the purchase price for the computer/device), there are also important concerns raised by this type of system.  In particular, a more open system presents greater threats to the security of a company’s data and systems.  It can also cause inefficiencies due to the need to run and support multiple devices and software platforms (with possible resulting employee down time).  One particular security concern is whether allowing this type of system will increase the likelihood of employees’ misappropriation of an employer’s confidential and trade secret information. 
It is too soon to know how widespread the consumerization of I.T. approach will become, and particularly hard to predict whether it will gain popularity within smaller companies. As we watch its development, we need to keep in mind that innovations in technology often require adjustments in many other aspects of business practices, particularly those related to the privacy and security of company information.