Friday, April 29, 2011

Technology, Law, and the Workplace: Week in Review

This Week in Review comes to you from the ABA Symposium on Technology in Labor & Employment Law. The presentations have been diverse and interesting, exploring the cutting edge of technology in labor and employment law. The presentations have run the gamut, from issues with trade secrets to social media in the global workplace to a survey on the latest electronic invaders in the workplace. (You can read my paper on robotic technology in the workplace here.)

I'll report back in future weeks on some of the topics we've discussed at the symposium. In the meantime, enjoy this Week in Review!

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Philadelphia Launches Anti-Corruption iPhone App (Fast Company)
  • Iran Discovers New Cyberattack (NY Times)
  • Apple and Google Use Phone Data to Map the World (NY Times)
  • Facebook Is Latest Rival to Groupon and LivingSocial (Bits)

Thursday, April 28, 2011

We Know Where You Were: Should Employers Use GPS Tracking Data?

The news last week about iPads and iPhones regularly recording geographic locations in a hidden file raises yet another challenge for employers. Consider the possibilities:

An employee complains that a supervisor who has her iPhone number in order to reach her for work reasons has been calling her repeatedly asking her out on dates and he is showing up where she goes after work with her friends. She suspects he may be tracking her every move using her number.

A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he accessed the employee’s iPhone location data as his method of uncovering the truth.
An employer is in the midst of complex and high-stakes investigation regarding alleged misconduct and wants to access the location tracking files on employees’ iPhones and other mobile devices.

These are just a few situations that may arise for employers, and the laws governing employee and employer rights in this area are still evolving. So what should an employer do if faced with a situation involving this tracking technology? Be careful. Make sure you understand all the facts at hand and familiarize yourself with the technology or particular application at issue. Don’t make snap decisions or immediately search for or use information that may, in fact, be available. Do review your current employment policies and practices, especially those relating to access and use of smartphones. Does the company provide or subsidize smartphones for employees? If not, attempting to access or use location tracking data could create legal risk.

As employers continue to loosen the reins on smartphone use, the corresponding increase in data access will continue to create legal risk. This news brought to mind an Elizabeth Lindsey quote I saw recently: “We live in a society bloated with data but starved for wisdom.” Just because data is created and available doesn’t mean an employer should use it. A wise employer should use good judgment and consider the risks before accessing or using data created by new technology.

Saturday, April 23, 2011

Technology, Law, and the Workplace: Week in Review


Privacy and secrecy in the workplace. It's kind of a touchy topic, isn't it? On the one hand, both employers and employees expect that information that they consider to be private will remain private. But on the other hand, both employers and employees often wonder about the secrets that the other is keeping from them.

This week's stories showcase the huge impact of modern technology on privacy and secrets in the workplace. From the iPhone location-tracking data scandal to employee recordings of workplace conversations to digital warning signs of an imminent employee departure, the tools of the modern workplace often leave behind electronic footprints of important information. In the Internet age, employers and employees alike should be mindful of the quote attributed to Stewart Brand: "Information wants to be free."

Technology in the Workplace
Technology and the Law More Generally
  • Al Franken To Steve Jobs on iPhone Tracking: I Want Answers (Talking Points Memo)
  • Winklevoss Twins Ask for New Hearing in Facebook Case (Bits)
  • Abrupt Turn as Facebook Battles N.Y. Suit (NY Times)
  • Texas supreme court says identities of anonymous bloggers should not be disclosed (Internet Cases)
  • U.S. Cracks Down on Online Gambling (NY Times)
  • WikiLeaks, Twitter Records Case Heads Back to Court (Fast Case)
Technology in the News
  • The President's Facebook Town Hall (White House Blog, Bits)
  • Kids Fail to Recognize Online Ads, Study Says (Bits)
  • Ugandan Government to Order Blocking of Facebook, Twitter to Quash Protests (Fast Company)
  • The Revolution Will Be Skyped: Libyan Rebels Take to Skype, Chat With Students (Fast Company)
  • Location Apps Generate Privacy Concerns, Report Says (Bits)

Friday, April 22, 2011

Does Your Company Have a “Workyard” Bully?

We all knew schoolyard bullies, and, if we were lucky, they left us alone.  The less fortunate, however, sometimes suffered devastating and long-term effects from bullying.  Society has increased its focus on school bullying over the years.  New challenges have also arisen, however, as bullying has moved into cyberspace with widespread impact.  We continue to strive, however, to provide children with safe, healthy environments in which they can flourish and meet their full potential.

But what about our workplaces?  Does your company’s environment allow employees to thrive and flourish, which should result in greater organizational success?  Sadly, research indicates that many workers are the targets of “workyard” bullies.  In a 2010 survey by the Workplace Bullying Institute  and a 2007 survey by the Employment Law Alliance, between 33% and about 44% of responders reported having been bullied at work.  As with school bullying, workplace bullying comes with high costs.  Victims can suffer physical or emotional harm that interferes with their professional and personal lives.  Employers, in turn, may suffer significant costs, including decreased attendance, increased medical and insurance costs, legal costs, and the lost productivity and opportunity costs that result from a demoralized and distracted workforce. All of this affects an employer’s bottom line and competitive edge.

Despite the costs, less attention has historically been paid to workplace bullies than schoolyard bullies.  This is changing, however, and a movement to legislate against workplace bullying is gaining momentum.  At least 20 states have considered workplace bullying legislation, and New York came close to passing a law last year.  Advocates of such legislation argue that it is needed to address legal gaps.  While the most severe bullying and protected class-based bullying may be unlawful under current federal or state laws, it is generally not against the law to be an equal opportunity bully.  Opponents of anti-bullying legislation counter that it will be impossible to adequately define illegal bullying, that the legal bar for such claims will be set too low, and that employers and courts will see a flood of frivolous litigation.  Despite the debate, the proposed legislation in New York drew bipartisan support.  That proposed legislation required that bullying be severe, carried out with malice and unrelated to any legitimate business interest.  It also modeled employer obligations after existing obligations under discrimination laws.

It is not yet clear whether or when workplace bullying legislation will be enacted, but New York’s near- passage of such a law has led some commentators to predict that such legislation is in our future.  Employers should, if they have not already done so, start paying attention – both to get ahead of new potential legal obligations and to mitigate the high business costs of bullying.  Some steps that employers might undertake include:

  • Consider adopting a “No Jerks” rule for your workplace.  While using more colorful language with which not everyone may be comfortable, Robert Sutton’s book, The No Asshole Rule: Building a Civilized Workplace and Surviving One that Isn’t, contains an interesting discussion of the many reasons to consider such a rule, as well as tips for addressing workplace bullying, some of which are discussed below.
  • Adopt and, more importantly, enforce an anti-bullying policy that includes reporting and response procedures akin to those used for harassment.  To avoid contract claims, however, policies should include contract disclaimers.
  • Take steps to avoid hiring bullies in the first place, such as including the applicant’s potential managers, peers, and subordinates in the interview process.  Studies indicate that many bullies focus on those with less power than them, so peers and subordinates may be better positioned to spot troubling behavior in interviews.
  • Treat bullying as a performance problem.  Don’t reward or promote bullies, because this sends a message that bullying is accepted and not a bar to success.  Instead, reform or get rid of bullies whenever possible.  No matter how valuable an employee may seem, bullying behavior has real and significant financial costs that, if quantified, often outweigh the bully’s perceived value to the company.
  • Train your employees on the company’s expectations regarding bullying. As suggested in Sutton’s book, you might also want to train your employees on how to engage in constructive, respectful confrontations and debates, rather than personal attacks.
  • Use available resources, such as anger and management counseling and EAP programs.
  • Most bullying does not turn violent, but bullying can be a precursor to violence by the bully or a target of bullying. Consider forming a threat assessment team to assess and address violence risks as they may arise.

Friday, April 15, 2011

Technology, Law, and the Workplace: Week in Review

The news this week is another reminder that, although technology may appear to change everything, the same basic laws apply.  If you screen applicants via Facebook, the same background check and discrimination laws will apply.  If an employee engages in protected activity on social media, then protected activity laws still apply.  And if an employee sues you, you can seek discovery of social media evidence on the same basis of as other evidence.  These stories, and more, are discussed below.

As Apple's recent ad for the new iPad says, "technology alone is not enough."  Employers must remember that the basic employment and labor laws are not so quick to change.

Technology in the Workplace
Technology and the Law More Generally
  • MySpace evidence was inadmissible hearsay (Internet Cases)
  • Senators Propose New Online Privacy Law (Media Decoder and WSJ Law Blog)
  • A Date Goes Horribly Wrong: Should Dating Site Pay Up? (WSJ Law Blog)
  • House Votes Against 'Net Neutrality' (NY Times)
  • N.Y. Man Says New Evidence Shows He Owns Big Facebook Stake (Bits)
  • Court Upholds Facebook Settlement With Twins (NY Times)
  • An iPhone Left in a Locked Bathroom is Not "Abandoned" under the 4th Amendment (Bow Tie Law)
Technology in the News
  • Do Cellphones Cause Brain Cancer? (NY Times)
  • New Search Technology Is Enhanced With Videos (NY Times)
  • Do Social Networks Make You Feel Left Out? (Gadgetwise)
  • The New Gatekeepers of Media (NY Times)
  • U.S. Lagging in Using Technology, Study Shows (NY Times)
  • Data theives target e-mail addresses (USA Today)

Thursday, April 14, 2011

Google Before You Hire?

I recently finished teaching Employment Law to a group of students at Bethel University.  The class was comprised of students who are going back to school to finish their four-year degrees, with most students majoring in Human Resource Management.   Each class period involved a lot of discussion, with students contributing stories from their current or former employment experiences. 
During our discussion on background checks, one student shared a story about what her company discovered when it did a quick Google search before offering a candidate a position.  The company was hiring a high level executive who would have a high profile within the company’s business community.  After completing the interview process, the company identified one front-runner.  Almost as an afterthought, before offering the candidate the position, the CEO decided that he ought to do a quick Google search on this individual since he would be working so closely with her if she was hired.  Much to his surprise, he discovered that the candidate was the author of a blog that detailed her sexual encounters and contained pornographic photos of herself.  As you might have guessed, the company decided not to offer the candidate the position.
For the most part, I think Googling a prospective employee is a good idea.  As my previous posts have discussed, there is some risk that you might inadvertently access protected class information, so be mindful of that.  Because information you obtain through a Google search isn’t password protected, an individual would be very hard pressed to argue that the information was private.  So long as you aren’t acting on protected class information, employers are generally free to consider the information they obtain when making hiring decisions. 
In the scenario discussed above, so long as the company’s decision was not based on the candidate’s gender or sexual orientation, its decision was lawful.   In terms of what to say to the candidate, I’d generally say very little; I’d recommend using the same type of communication technique that you do in other instances when the company has made the decision not to extend an offer.  If the company obtained this information through a third party that it hired to do a background check, you’ll need to comply with the notice provisions under the Fair Credit Reporting Act. 
One last thought: although information obtained through Google searches might be entertaining, in cases where the Google search results in an individual not receiving an offer of employment, I’d recommend that the company limit the number of company employees who learn about the search results to just those with a legitimate need to know.  The fewer the better.

Friday, April 8, 2011

Technology, Law, and the Workplace: Week in Review

The worlds of technology and data privacy collided this last week.  On Friday, Epsilon issued a press release disclosing that the names and email addresses of the marketing company's customer data were compromised.  Although Epsilon claimed that only a small subset of clients were affected, I received notices throughout the week from financial companies, travel companies, and other service providers letting me know that my email address and name may have been compromised.

The Epsilon story highlights a growing concern for employers about the security of confidential information, both about their business and their employees.  Aside from the primary question of whether Epsilon or its clients took reasonable care to protect their confidential information, there is a separate takeaway for employers:  we all depend on technology to work as promised to prevent disclosure of confidential information.  Given what is at stake, employers should make sure that they understand the systems in place to prevent theft or misappropriation of confidential information.  Even though a court might find that an employer took reasonable precautions to safeguard the information, there are no winners when a company's confidential data is compromised.

Technology in the Workplace
Technology and the Law More Generally
  • Facebook Is Tool for Trial Lawyers Scouring Juror Profiles to Unearth Bias (Bloomberg)
  • Facebook, Zuckerberg Sued For $1 Billion After Not Removing a Page Fast Enough (Tech Crunch)
  • Mobile Apps accused of violating the Computer Fraud and Abuse Act (Internet Cases, WSJ Law Blog, Fast Company)
  • Google, eBay, and Facebook Take on France Over User Privacy (Fast Company)
  • Court Rejects Suit on Net Neutrality Rules (NY Times)
Technology in the News
  • An Attack Sheds Light on Internet Security Holes (NY Times)
  • Social-media tools used to target corporate secrets (USA Today)
  • Police Lesson: Social Network Tools Have Two Edges (NY Times)
  • The Surge in Data Processing (Bits)
  • Protecting Your Smartphone (Bucks)
  • The Growing Business of Online Reputation Management (Bits)
  • Erasing the Digital Past (NY Times)

Wednesday, April 6, 2011

The Moving Target of Reasonable Accommodation

For many years now, employers with more than 15 employees have had a legal duty to make "reasonable accommodations" that allow qualified workers with disabilities to successfully perform their jobs. Such accommodations - everything from ramping stairs to TTYs to adjusted work hours - are meant to level the playing field. There are limits to this mandate, of course: employers may not be asked to suffer "undue hardship" in order to provide accommodations. Courts and commentators have written millions of pages about what's reasonable and what's an undue hardship, but in the end it's always a fact-specific analysis. The question that has to be answered, each time a worker with a disability seeks an accommodation, is whether this employer, under these circumstances, can reasonably be expected to provide this accommodation. There is lots of guidance available, but facts and circumstances always matter.

20 years ago, there were far fewer assistive technologies available. Even five years ago, voice recognition software, text-to-speech translators, real-time closed-captioning, touch-screen monitors, and sit-stand workstations, if they existed at all, were often prohibitively expensive. Making such accommodations available might well have been an undue hardship, even for large organizations. Today, such technology may be well within an employer's means. Tomorrow, something that sounds revolutionary now may be readily available and may be a reasonable accommodation an employer is required to provide. For example, exoskeletal technology can now be used to help employees perform physical tasks requiring strength or endurance.

It's important for employers to stay generally aware of the inventions and developments that can make their workplace accessible to talented workers with disabilities - but it's not enough. Frequently, necessary accommodations are not high-tech. An American Sign language interpreter, or a table lowered 8 inches to allow seated work, don't depend on technological advances. Adjusting work hours or reassigning non-essential duties may result in no cost at all to the employer. It's critical for both employers and employees to remain flexible, open-minded, and creative as they work to eliminate barriers create workplace access.

Friday, April 1, 2011

Technology, Law, and the Workplace: Week in Review

This week's round-up seems to focus on the small world of the tech industry.
Facebook is in the news for privacy concerns, and is said to be hiring former White House Press Secretary Robert Gibbs. Google is introducing a new social tool, +1, just on the heels of its settlement of a privacy charge brought by the FTC. And, finally, the Wisconsin Labor & Employment Law Blog reports on the small world of skilled technology employees: the FTC has filed high-profile antitrust complaints against companies like Lucasfilm and Adobe Systems for allegedly anti-competitive employment practices.

It's a small world after all!

Technology in the Workplace
Technology and the Law More Generally
Technology in the News
  • Cellphone Radiation May Alter Your Brain. Let's Talk. (NY Times)
  • Smartphone Market Expected to Soar in 2011 (Bits)
  • Crowdsourcing a Better World (Opinionator)
  • Two Twitter Founders Trade Places (Bits)
  • Online Mapping Shows Potential to Transform Relief Efforts (NY Times)
  • Ethical Quandary for Social Sites (NY Times)
  • Paul Baran, Internet Pioneer, Dies at 84 (NY Times)