Friday, December 30, 2011

Week in Review (The Holiday Edition)

Interesting developments touching on technology in the workplace, and regarding employment law issues generally, don’t take a year-end break for the holidays.  Indeed, those work-related holiday gatherings have been known to be fertile breeding grounds for employment difficulties --but don’t get us started on that.  In this two week, holiday season Week in Review, we provide you with a virtual smorgasbord of linked articles heavy on interest, but light on calories.  Enjoy and see you next year.

Technology and the Workplace
Numerous American Businesses Plan to Deploy iPads in the Workplace in 2012 (Softpedia)
Do Your Social Media Accounts Belong to Your Business? (Social Media Law Blog)
Employee Bathroom Surveillance Camera, Although Faulty, Could be Invasion of Privacy (LawMemo)
Tech Firm Implements Zero Employee Email Policy (ABC News)
Social Media Best Practices Video (ConneticutEmployment)
Teacher Terminated for Facebook Post About Students (NPR) (DelawareEmployment)
Employment and Discussion of Unfair Labor Practices on Facebook (EmploymentLawBits)

Technology and the Law
Facebook Faceoff: What Makes a “Like” a Lawsuit? (Anchor Plate)
Data Breach Response: Year in Review (Data Privacy Monitor)
Partial Victory for Apple in Patent Suit Against HTC (BusinessInsider)
Increase in Digital Patient Records Leads to Increase in Security Breaches (NYTimes)
There's An App for That
FedCtRecords App, Court Records Moving from Filing Cabinet to iPhone (ABAJournal)
MyMoneyCircle, The Socialization of Personal Finance (Forbes)
Crosswalk, What Apps Does Another Device Have? (NYTimes)

Wednesday, December 21, 2011

A New Year's Resolution: Implement or Update Your Technology Policy

The end of the year is, of course, a time for reflections, predictions, and resolutions for the new year.  As I’ve reflected on the 2011 Modern Workplace blog posts, the primary take-away from most posts is the importance of having a carefully drafted, lawful technology policy.  In addition, the web is currently filled with technology predictions for 2012 that suggest the lightning fast pace of technological developments impacting the workplace will continue in 2012.  Some of the 2012 predictions include touch computing potentially replacing desktops and laptops, more effective voice-controlled or movement-controlled devices, and bendable screens that allow zooming in and out or scrolling by simply twisting your phone or tablet device. These reflections and predictions lead to the conclusion that an important 2012 resolution for employers should be to adopt, or to update, an effective and lawful technology policy customized for the employer’s business and its needs.  While there are many off-the-shelf policies available, such policies often do not fit the practical needs of each unique employer and may not comply with the law that applies to the employer in its various locations and given its size.

While not exhaustive, some items to consider addressing in a technology policy in 2012 include:
  • The technology covered by the policy:  Employers should consider whether the policy will extend only to employer-paid or provided devices or whether the employer may lawfully and should extend the policy to personally owned devices used for work purposes.  The law is still evolving in this area, but having a clearly worded policy can improve an employer’s legal position in arguing that it has the right to access technology used by an employee for work purposes.
  • Privacy considerations:  A policy should include an express warning that the employer retains the right to monitor and review the use of and content on any technology covered by the policy.  Employers should be aware, however, that there have been court decisions finding employers liable for improperly accessing or using online content, particularly where the content was on a website with restricted privacy settings, such as  As such, employers should take care to ensure they lawfully access online content, and they should consult with counsel as appropriate to ensure compliance.
  • Permissible and impermissible uses:  The policy should explain the permissible and impermissible uses of technology and social media.  Items to address might include, for example, personal use of technology on work time, employees’ obligation not to use technology to engage in unlawful behavior, the need to protect confidential or trade secret information, and the need to respect others’ intellectual property rights.  Employers must also take care, however, not to run afoul of employees’ legal rights.  An employee’s use of technology and online content may be protected by discrimination, anti-retaliation, lawful consumable product, lawful activity, or other laws.  Currently, one area of heightened risk involves increased enforcement activity by the National Labor Relations Board to protect both unionized and non-unionized employees’ rights under federal labor law to engage in “concerted” activity for their mutual aid and protection through online activity. 
  • Wage and Hour issues:  Non-exempt employees generally must be paid at least minimum wage for all time worked and overtime pay, which can, depending on the circumstances, include time spent checking voice-mails or e-mails away from work.  As such, an employer may want to address limits on the use of technology by non-exempt employees outside of normal working hours.
  • Photography and Recording:  As discussed in a previous post, smart phones make it far easier than in the past for employees to secretly record conversations at work or to take unauthorized photographs or videos.  Depending on the employer’s business and its unique risks, a technology policy might include language prohibiting the use of devices to make recordings or take photographs or videos. 
  • Driving:  The National Transportation Safety Board recently recommended making all non-emergency talking, texting, or other use of mobile phones and devices illegal while driving.  While enforcement is sporadic, many states already ban such activity or permit talking only on hand-free devices.  Because employers can be liable for injuries caused in the course and scope of an employee’s duties, employers should consider whether to include such limitations in a technology policy.
  • Testimonials:  The Federal Trade Commission has taken the position that false and misleading advertising laws apply to online postings.  Among other things, the FTC requires that employees that offer online endorsements or testimonials of the company’s products or services must disclose their connection to the company.  As such, an employer’s technology policy may need to include language advising employees of the need to comply with FTC requirements when making endorsements or testimonials.
  • Consequences:  The policy should advise employees that violations may lead to discipline, up to and including immediate termination of employment.  In enforcing the policy, however, employers need to be mindful of any activities or online content by employees that may be legally protected, as mentioned above.

Thursday, December 15, 2011

Week In Review

This week we see the courts dealing with issues and conflicts that arise from the use of technology. English courts have begun to allow journalists to tweet, email, and go on Facebook during legal proceedings. Writing a negative and harassing blog can be a violation of a restraining order. Facebook connections come under scrutiny if they involve the families of participants in legal proceedings. These and other articles linked below discuss the intersection of technology, law and the workplace.

Technology and the Law

English Courts to Allow Journalists to Use Twitter, Facebook and Email while in Courtroom (Guardian)

Harassment Blog Must Be Deleted:  Violation of Restraining Order (Forbes)

Imitation:  Sincerest Form of Flattery or Violation of Patent (a.k.a. Everyone Wants to Be Apple) (FastCo)

Tech Savvy U.S. Supreme Court Posts Opinion Online Before Official Announcement (ABAJournal)

Judge's Children are Facebook Friends with Defendant's Family:  Is This Enough to Overturn a Conviction? (SunTimes)

Technology and the Workplace

Distracted Doctoring, Brought to You by Smartphones (NYTimes)

What Must a Business Do to Prepare for E-Discovery Changes? (Forbes)

A CEO's Guide to Social Media (FastCo)

There's An App for That

SecureGive:  Donations to Local Church or Red Cross (Forbes)

Food52:  Interactive Holiday Recipe Survival Guide (Food52)

The Holiday Shopping List (Mashable)

Friday, December 9, 2011

Week In Review: The Twitter Edition

Twitter has been in the news this week, they've launched the first update to their website since its creation, and with 100 million followers and 250 million tweets per day, the social media tool has been providing fodder for the judicial system. Twitter has a propensity to show up regularly in the media, poor tweet judgment has repeatedly been shown by celebrities and politicians. Twitter feeds are easily subscribed to, available to the public, and almost intractable. These qualities can lead to a host of legal issues.  Once statements are sent out to the world at large, they are free to do damage to reputations, release confidential information, and provide documentation of discrimination or harassment. Discussed below are some new legal issues that Twitter has given rise to, as well as other changes to our workplace and legal system brought about by new technologies.

Technology and the Law

Murder Conviction Reversal Due to Juror's Tweets (ABAJournal)

Amendment to Video Privacy Act Clarifies What "Consent" Means Now (InsidePrivacy)

Legal Services Groupons Now Available (LawSites)

Redacted Information Released Through E-Docs in Apple Patent Infringement Case (ABAJournal)

Technology and the Workplace

Fitness Instructor's Tweet Ends His Employment (WashingtonPost)

Asking Who Owns Social Media? You're Missing the Point (Forbes)

Workplace Meals to Counteract the Isolation of Technology (StarTribune)

There's An App for That

Price Check, Amazon Ensures Use of App by Giving a Discount (Forbes)

The Best Apple Apps of 2011 (Mashable)

Election 2012 (NYTimes)

Tuesday, December 6, 2011

Unauthorized Videos by Employees at Work: Tips for Prevention

On November 18, 2011, the animal rights group Mercy for Animals released a video that was secretly recorded at several farms owned and operated by Litchfield, Minnesota-based Sparboe Farms, the fifth largest shell egg producer in the United States. The video shows the mistreatment of select hens used in the production of eggs. The video was obtained by ABC News and was used as part of a story for the ABC News Magazine television show 20/20.  That story and the surrounding media attention caused a ripple effect in the food industry. Within days of the release of the video, customers of Sparboe Farms—including McDonald’s, Target, Sam’s Club, and Lunds & Byerly’s—announced that they would no longer buy Sparboe-branded eggs.  Although Sparboe Farms acknowledges select hens were mistreated, the company denies that these incidents are reflective of its general practices and has terminated the employees involved with the mistreatment of the animals.

An important issue was raised in this case that has largely been ignored by the media:  the video was taken without authorization by people associated with an animal rights group who obtained employment with Sparboe Farms for the sole objective to take the video. While the employee mistreatment of animals in the videos is undeniable and inexcusable, the people involved in exposing the problems used tactics that should cause some concern for employers.  Sparboe has publically taken responsibility for the problems and is in the process of a large-scale improvement initiative.

The days of large video cameras held on the shoulder and bulky VHS tapes are long gone.  With today’s technology, it is remarkably easy to videotape anything, anywhere, and it is difficult to detect those who do this without permission. This poses a long list of legal risks for employers.  Unauthorized videos can result in large-scale, negative publicity, (Sparboe is a recent example; remember the Domino’s video incident?)  Even if they don’t cause a media circus, they can cause legal problems. We regularly advise clients on how to respond to situations involving video technology in the workplace.  My own list of examples includes how to handle an employee who posts sexually suggestive videos on social media sites that co-workers are invited to see, email chains between workers sharing and spreading highly inappropriate video content from private sources or the web, and even videos of the proverbial “bad boss” having a meltdown being floated around the office.  Video technology also creates the possibility of your company’s trade secrets or confidential business information being secretly recorded by an imposter “employee” and shared on the web.   And let’s not forget that users can easily manipulate videos to depict behaviors or people in a manner that is entirely false. Although there are laws that prohibit invasion of privacy, defamation, and even the interference with research or operations at animal facilities like Sparboe, there are remarkably few legal rules in place that govern an employer’s right to address or prevent unauthorized videos taken by employees.

So what is an employer supposed to do?  For starters, adopt good hiring practices and good technology use policies.   Also consistently train about technology use in the workplace and enforce the policies you put in place.  Here are some suggestions:

Good Hiring Practices

·     Reference checks. Take the time to check references. Always request employer references and verify that the past jobs listed on the application are accurate.
·     Prior addresses.  Always request and verify that the prospective employee actually lived at the addresses provided. Background checks done by vendors usually include this verification. Be careful to avoid questions that could give rise to claims of discrimination, but don’t overlook the importance of validating the information provided by a job applicant. 
·     Education and skill level.  Consider whether the prospective employee seems to be over or under-qualified for the position, based on both education and skill level.
·     I-9 Compliance. Be sure to follow all rules for completing I-9s to verify identity.   One common method of verification is a driver’s license, but other forms of ID are also acceptable. Make sure your hiring personnel know and understand these requirements and consistently follow them.

Effective Training and Supervision

If supervisors are properly trained and doing a good job overseeing staff, they will notice unusual behaviors that could indicate employee misconduct, such as unauthorized videotaping.

·      Unusually detailed questions.  Most new employees will have lots of questions and a certain period of “learning” while on the job. But if the employee asks specific questions about security matters, such as how people can access certain areas of the facility or the specific hours of supervisors in various areas, or operational time schedules for certain events, there may be a different motivation than simply learning the business.
·      Attendance problems.  Sporadic or inconsistent attendance can be a common problem, but if an employee arrives prior to scheduled shifts or leaves after scheduled shifts on a regular basis, management should take notice and enforce the schedule. Not only does this behavior cause potential security issues, it could also raise claims of unpaid overtime under the Fair Labor Standards Act.
·      Wandering.  If the employee is discovered wandering around in areas not necessary for his/her job responsibilities, make sure management is following up and providing appropriate guidance about work hours and work locations.

                              Adopt a Technology Use Policy

Although there are very few laws regulating the use of video technology in a workplace, employers are free to adopt policies prohibiting the use of certain technology and technical devices, such as video smartphones, in the workplace. The policy should be in writing and distributed to every employee, preferably with a requirement that the employee sign an acknowledgement regarding their understanding of the policy.

Train Employees and Enforce Policies

As Ben Franklin taught us, an ounce of prevention is worth a pound of cure. The best way to avoid problems is to make sure your employees understand the rules and follow them. In today’s business world, use of technology policies and codes of conduct are common and expected. Put good policies in place and regularly and consistently provide training, education, and guidance to employees about expected behavior. And don’t forget to enforce the rules. If employees are not following the rules, address the situation immediately and with an appropriate response given the offense. Most people learn best by example, so ensuring those who break rules receive timely and adequate discipline will send a strong message to all of those who work around them.

Friday, December 2, 2011

Verifying Previous Employment: Worthwhile or Waste of Time?

During a recent training that I provided on hiring dos and don'ts, one of the managers attending the training asked if his company should continue to call previous employers for references.  The manager expressed frustration that most often, previous employers will only confirm dates of employment.  He wondered whether it is really worth the effort to continue to make these calls.  Short answer: I believe it continues to be a worthwhile step in the hiring process.

Although it is frustrating to a prospective employer to be given only basic information, there’s a reason it happens that way. The former employers are doing just what their attorneys are advising them to do when responding to a reference check. They are refusing to give out any information that could be considered defamatory or could otherwise lead to legal liability.  Because employers have been sued for saying more, most consider the risk and benefits and to limit the information they give out to dates of employment and previous job titles.

Despite the fact that previous employers will generally only give out such limited information, I believe it is still  worthwhile for prospective employers to go through the exercise of inquiring.  You may be surprised to learn that there are applicants who will lie on their application, so it is important to confirm basic employment history.  And every once in a while, a former employer will be willing to provide some additional information – especially when they have strong positive or negative feelings.   Also, if you ever find your company in the position where it is defending a negligent hiring claim, it will serve you well to have documented your efforts to obtain information about an individual’s previous employment.  For these reasons it is advisable to not only make the calls but carefully document your efforts, even if the information you obtain simply confirms the information provided to you by the applicant. 

Week In Review

The controversy surrounding Carrier IQ software is evolving rapidly. Carrier IQ software is preinstalled on phones from AT&T, Sprint and T-Mobile. Its original purpose was as an analytic tool that would allow carriers to provide better service by recording dropped calls and instances of poor reception. However, the software apparently also records all of a phone's keystrokes. This gives rise to privacy concerns, and a suit has been filed by consumers under the Federal Wiretap Act. Additional problems such as hacking and identity theft are also being addressed in the media. Below are some articles discussing this, and other, changes to our lives and legal system brought on by the introduction of new technology.

Technology and the Law

Video of Carrier IQ Recording Keystrokes (NPR)

Lawsuit Against HTC & Samsung for Use of Carrier IQ Software (Gismodo)

Manufacturers and Carriers that Use Carrier IQ (Engadget)

Intellectual Property, Future v. Present Rights to Innovations (InsideCounsel)

Over a Hundred Cybersquatting Web-Sites Selling Counterfeit Goods Shut-Down (InsideCounsel)

House Bill to Shield Businesses from Liability for Disclosing Cyber-Bullying to Government (InsidePrivacy)

Technology and the Workplace

Skills to Acquire Customers Through Social Media (Mashable)

Former Employee Must Return Social Media Log-In Info to Employer (DelawareEmploymentBlog)

From the Paperless Workplace to the Email-less Workplace (TechCrunch)

There's An App for That

Mobiroos, The App Gift Card (Gadgetwise)

Red Stamp, Smartphone Holiday Cards  (NYTimes)

TheIceBreak, Relationship Knowledge Earns Money (TechCrunch)