Wednesday, November 23, 2011

Week In Review

This week we see the push and pull between the benefits that new technology can provide and the difficulties it creates when we try to integrate it into our current systems. A number of problems have arisen recently based on the availability of cell phone GPS data and the security of data organizational and protection software. These, and other technological issues affecting our lives, have been collected below.

Technology and the Law

Conflict Between Circuit Courts on Legality of Cellphone Tracking (SecurityNewsDaily)

Legality of Malls Tracking Shoppers Using their Cellphones? (PCWorld)

F.C.C. Reviewing Upcoming Merger of AT&T and T-Mobile (NYTimes)

Class Action Case Based on Junk Faxes Dismissed (ThomsonReuters)

Technology and the Workplace

The Reliability of Automated Record Classificaton Programs (InsideCounsel)

Advice for Handling Online Holiday Shopping at Work (EmploymetLawBits)

Boosting Work Credibility the Luddite Way (Forbes) Reports 70% of Gen Yers Leave First Job within Two Years (Forbes)

A New Way of Examining Data Security Breaches (WSJ)

There's A (Thanksgiving) App for That

Paprika, Recipe Manager (NYTimes)

Goodzer, Locavore App (Techcocktail)

TapBuy, Instant Purchases (Apple)

Higher Ed PERM Advertising Requirements Have Finally Entered the Modern Age

Foreign nationals are often among the most highly-qualified applicants for permanent positions at colleges and universities in the United States.  In order to hire and retain foreign national candidates for permanent positions, colleges and universities need to follow a series of steps to assist the qualified foreign national candidate in obtaining work permission and, if desired, permanent residence status in the U.S. Permanent residence status confers on foreign nationals the right to live and work in the U.S. without time limitations.  One of the more common ways to obtain permanent residence is by the petition of a U.S. employer through a process called Permanent Labor Certification (“PERM”).  For most PERM applications, an employer must undergo a fairly extensive recruitment campaign and may file the application only if they do not find qualified U.S. workers.  Fortunately, the process is streamlined for colleges and universities, in what is known as “Special Handling Labor Certification,” which allows them to file the application for classroom teaching positions when the recruitment has already taken place.  However, the application must be filed no later than eighteen (18) months after the date the job was officially offered to the foreign national, specific recruitment steps must be followed, and certain documentation must be retained in order to be able to take advantage of the Special Handling process.

A couple of months ago, the Department of Labor’s (“DOL”) Employment and Training Administration (“ETA”) issued a PERM program Frequently Asked Question stating that an employer may now use an electronic or web-based national professional journal instead of a print journal when conducting recruitment for college and university teachers pursuant to 20 C.F.R. § 656.18.  Lest you think the DOL independently came to the conclusion to modernize its requirements, it’s worth noting that this new FAQ came on the heels of an adverse decision by the Board of Alien Labor Certification Appeals (BALCA) within DOL that overruled the DOL’s rejection of a PERM application where the employer had used an online national journal advertisement in its recruitment.
Before the issuance of this new FAQ, higher education employers were required to run job advertisements in printed journals as a part of the process of showing that the foreign worker hired for the college or university teaching position was selected for the job after conducting a competitive recruitment process which found that the foreign worker was more qualified than any U.S. worker who applied for the position.  This new option will allow colleges and universities to save time and money and will ease the record-keeping burden for Special Handling PERM cases.  It should be noted, however, that the new FAQ does not change the requirement that the electronic or web-based journal’s job listings must be posted for at least 30 calendar days and viewable to the public without payment of a subscription or membership and the documentation showing the placement of the advertisement in the electronic or web-based national professional journal must include the start and end dates and the text of the advertisement.

Friday, November 18, 2011

Week In Review

Technology definitely changes faster than the law. It can take anywhere from several months to several years for the law to recognize and sort out causes of action created by new technology. In the news this week, we see that courts and legislatures are getting more up-to-date on technology, and that problems sometimes result. Below are some links showing how the law has and hasn't kept up, as well as what has been changing in the world, the workplace and the law.

Technology and the Workplace

Who Owns Your Company's Twitter Account? (DelawareEmploymentLaw)

Most Hospitals Need to Revise Social Media Policies (AISHealth)

Robot Helps Workers Clean Offices (TechCrunch)

How Much Social Media Means to New Hires (Employer Handbook)

Technology and the Law

Advertisers Using Facial Recognition Software Run Afoul of Privacy Regulations (NYTimes)

Deletion of Facebook Material Leads to $522K Penalty Against Lawyer and Client (eDiscovery)

Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional (WSJ)

There's An App for That

Elerts, For Reporting Emergencies (NYTimes)

QR Codes, As Business Cards (NYTimes)

When Does an Employer's Access to Electronic Communications Create a Duty to Monitor that Information?

The recent, shocking news floating around Penn State University has understandably caused some employers to reflect on their obligation to report and take meaningful action in response to suspected criminal sexual activity.  Most states have statutes that establish when reporting of the abuse of a minor is required, but employers who do not serve or supervise minors may have little knowledge of mandatory reporting laws. Common law, which also varies from state to state, may create a duty of care for employers that requires reasonable attention to the safety and security of employees and others – particularly minors – on the employer’s premises.  Regardless of the particulars of the law, there will always be public outrage if an employer could or should have known that criminal sexual activity (or other dangerous conduct) was occurring and failed to report it or failed to try to stop it.  With all that in mind, it’s worth considering whether an employer could be found legally responsible for harm that could have been prevented  if the employer had used its access to employees’ electronic communications to identify dangerous conduct.  Is it reasonable to expect an employer to monitor electronic communication for such a purpose? 

Generally speaking, employers can search employees’ emails and internet use on employer-owned hardware and software.  Many employers have published explicit policies warning employees that they should have no expectation of privacy in their electronic communication.  It’s not common, however, for employers to use time and resources on constant monitoring or random searches.  Should it be? 

A particularly thorny issue concerning employer-provided technology is the support of employee smart phones.  Employee email is commonly run through and synced with the employer’s email exchange server.  In addition, it is possible to set up smart phone support so that text messaging – including attached photographs – also runs through the employer’s system.  Like email, texting is easy, quick, and informal, and, like email, it can be a format for inappropriate, legally actionable, or even criminal activity.  Just because an employer might properly have access to an employee’s email and text messages, is there an obligation on the part of the employer to actively monitor them?

It is quite unlikely, under the law as it currently exists, that an employer would be found legally responsible to outside victims for the failure to report improper activity by an employee unless the activity was actually detected by the employer.  A situation where an employer does become aware of such messages or activity but does nothing would be far more concerning and more likely to create liability for the employer.   It does not take a particularly creative mind to imagine an enterprising attorney suing an employer in a situation involving a victim who has been tragically harmed through the criminal activity of an employee.  Although the current state of the law does not recognize a clear legal duty here – and is really unformed at this time – this question is certainly one with the potential to cause sleepless nights for both employers and their lawyers.  And it is another very good reason why employers need to be very careful and thoughtful when making decisions about their access to and use of information about the electronic communications of their employees.

Friday, November 11, 2011

Week in Review: Women in the Workplace Edition

The work of those in highly visible positions (political figures, executives, business owners and litigants) is subjected to a great deal of public scrutiny. Women who are in these roles are no exception, and views about their performance, strengths, weaknesses and personality are widely discussed in the media. The articles below discuss some of the current technological and legal issues that have come up this week, both those involving women and the world at large.  

Technology and the Workplace

The Newest Tech Start-Ups and the Women Who Founded Them (Forbes)

The Most Powerful Woman in Technology (NYTimes)

Sexual Harassment in the Technology Driven Era (NYTimes)

A Way to Support Women in Afghanistan? Buy Goods from Their Website (FastCompany)

When Gender Bias Against Women Turns Them Against Each Other (ABA)

Accounting Firm and Gender Discrimination (LawBits)

Technology and the Law

Twitter Accounts, People Have No Reasonable Expectation of Privacy (Wired)

Seven Arrested in Large Cybercriminal Arrest (Trendmicro)

Sanctions Imposed When Phone Video Provides Evidence of Untruth  (TheState)

Details of the Legal Support Staff Survey (Forbes)

Destruction of a Facebook Page is Sanctionable (Above the Law)

There's An App for That

Lucky, Their Mission? To Help Women Shop (Mashable)

Luluvise, Communicating with Women (TechCrunch)

Hoseanna, Subscription Delivery for Women (Mashable)

Wednesday, November 9, 2011

Sexual Harassment: Is There An App For That?

Recent news coverage of Republican Presidential Candidate Herman Cain reminds us that sexual harassment in the workplace is still a powerful issue.  The events alleged by Mr. Cain’s former employees took place before social media emerged as the force it is today, so it’s doubtful that email, text messages, or other forms of electronic communication were relevant to the investigations done by the National Restaurant Association back in the 90’s.  In today’s technology-saturated workplace, however, any and all forms of electronic communication may be critical sources of information in the prompt, thorough investigation of sexual harassment complaints that the law requires.
Our experience suggests that sexual harassment in the workplace is alive and well, and that quite a lot of it goes on via email and text messaging.  As previously discussed here employees can send hundreds of thousands of personal emails to each other during work, and don’t always use good judgment in doing so.  Unwanted sexual comments, sexually explicit jokes or materials, and requests for romantic or sexual encounters can all constitute sexual harassment if they are sufficiently frequent and offensive.
Employers have an obligation to take reasonable steps to prevent such harassment from occurring.  They must also take timely and appropriate action to investigate complaints.  In a wired workplace, that almost certainly means reviewing email exchanges or text messages sent and received on the employer’s systems and equipment.  Whether the review findings support or disprove allegations of sexual harassment, they are an essential part of any investigation involving workers who have access to electronic communication. Investigation may also reveal inappropriate conduct by employees not directly involved in a sexual harassment complaint, allowing the employer to intervene and correct behavior before it creates liability.

Tuesday, November 8, 2011

A New Wave of I-9 Audits Reported

We have received information that the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency recently initiated a new round of I-9 audits.  Although ICE has not yet issued a public announcement about a new wave of audits, there have been multiple reports of businesses receiving Notices of Inspection beginning last Wednesday, November 2, 2011.  Our July 1, 2011 Modern Workplace blog post provides information regarding the I-9 audit process and tips for how to respond to a Notice of Inspection.
In light of ICE’s continued focus on I-9 audits, it is now more important than ever for businesses to make sure that they have an effective immigration compliance plan, which includes, at a minimum, a written I-9 policy, an audit response plan, and procedures for responding to information that may constitute “constructive knowledge” that a worker lacks proper work authorization.  In addition, employers should be proactive in mitigating the risk of potential fines and sanctions in the event of an audit by ensuring that their I-9 records are properly completed and maintained.  Gray Plant Mooty can assist you with your I-9 compliance obligations.  Please visit our I-9 Compliance Audit Program web page for more information about how we can help.

Friday, November 4, 2011

Technology and the Performance Review

Performance reviews can be a manager’s least favorite part of the job. They can be uncomfortable, confrontational and emotional. So, often, instead of addressing incidents of misconduct or poor performance with the employee, managers avoid the issue, and may even give a neutral or positive review. Then, when the manager concludes that discipline or termination are warranted, there is no documentation to back-up assertions of negative job performance, which can make things difficult if an employee later claims the action was taken for unlawful reason.  But even leaving aside the issue of documentation, which we have addressed here, it’s a fact that employees need feedback to perform their jobs well, and managers are often ineffective at giving employees good feedback.

Thus, over the last twenty years or so, there has been a rise in feedback mechanisms that, to some extent, let managers off the hook.  One example is a multi-rater feedback instrument, like a 360° review.  A recent development in this arena is the online, real-time, social-media type of feedback provided by ClearGears. According to the company’s website, the ClearGears review process allows all of the employees in a business to answer questions daily about their co-workers. This “daily, anonymous and democratic” information is compiled so that the employee sees a real time graph of how his or her work is perceived. But does this kind of immediate and ongoing feedback address concerns about infrequent or untimely reviews?  Is it likely to improve employees’ performance? Does it create legal risks different from those associated with a traditional review?
The data compiled and provided by the ClearGears review process or similar products may be an appealing way to get information about the quality and quantity of employees’ work. The legal and logistical implications of any review process, however, should always be taken into account.

First consider what the function of the performance review will be within the organization.
Development Tool: Performance reviews can be used to help employees recognize the areas of their job in which they excel and the areas in which they could improve. Key questions to ask when this is your goal are: 
  • Does this format give clear, meaningful and in-depth feedback?
  • Does the employee have sufficient resources to take action and change his or her behavior once the feedback is given?
  • Does this format give enough data to create an accurate picture of the employee’s relationships at work?
  • Does it give too much data? Is the data too personal?
  • Is the correct amount of attention paid to the issues that are creating problems within your organization?
Performance Management: Performance reviews may also be used to determine which employees receive promotions, raises in pay or bonuses, or which employees will be retained in the event of a reduction in force. Key questions to ask when performance management is your goal are: 

  • Does this format give a clear picture of the quality of work the employee is providing?
  • Does the feedback provide valuable information in relation to timeliness and productivity?
  • Is this type of feedback reliable enough to form the basis of decisions about promotions, compensation, or retention?
  • Is this type of feedback reliable enough to qualify as actual documentation of poor performance?
Issues to consider for all types of performance reviews include the cost of implementing the review process, the time required to administer the review and compile data, and how your employees will react to the type of feedback being given. Will co-worker feedback be considered credible and valuable?  Do co-workers have enough information to give meaningful feedback? Will responses be used as a way to back-bite and criticize co-workers anonymously?  Also consider that ClearGears and other forms of 360° reviews are often done on-line, so it must be determined at the outset who will have access to the data and how it will be secured.
Finally, remember that real improvement and change are ongoing. Once any type of performance review has been given, the employees should have the opportunity, resources and continued support needed to truly adjust behavior. ClearGears and other on-line performance review services look like an easy and cost-effective way to see how your employees really feel about each other, but understanding what the true goals of the performance review are will help you choose the best format for your company.

Week in Review: What Can Go Wrong?

As written about previously on this blog, there has been a major shift recently from closed source work technology to open source work technology. Many employers are allowing their employees to use their own personal devices, be it smartphone, tablet or laptop, at work. From the employer’s side this can increase productivity, but can create confidentiality issues. Also to be taken into account are technology problems. The more power and control technology has over our lives the more vulnerable we are to viruses, mistakes and software problems. What can go wrong? Many things.

Technology and the Law
Apple Files Suit Against Cybersquatters (InsideCounsel)
E-Documents get E-Discovery get E-Review (InsideCounsel)

Technology and the Workplace
IPhone 4S, Siri Won’t Talk to Me (Wired)        
Employees Use Social Media to Quit Their Jobs (MNLaborEmployment)
Top Ten Threats to Your Smartphone (SecurityNewsDaily)
Dangers of an Automated Job Search (EmploymentLawBits)
Social Networking Mistakes (InformationWeek)
There’s An App for That
Mo, Every Possible Way You Could Get There (FastCompany)
2Houses, Co-Parenting after Divorce or Separation (TechCrunch)
Square Card Case, Hands Free Payment in Store (9to5mac)
Created and Compiled by Larie A. Pampuch