Friday, February 24, 2012

Week in Review

This week technology once again helped and hurt the workplace.  Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web.  Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you.  Plus, rumors are circulating about Microsoft Office on the iPad.  Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.

Technology and the Workplace
Should You Send That Email? (FastCo)
Your Facebook Profile Can Predict Your Job Performance (Time)
Company Finds Room to Grow in 'Cloud' (ThePressEnterprise)

Technology and the Law
U.K.'s High Court Allows Service Via Facebook (AmLawDaily)
Apple's China iPad Battle Spreads to U.S. (msnbc)
Tiny Cameras Become Latest Police Weapon (NYTimes)
Apple, Google and Others Reach Agreement on App Privacy (NYTimes)

There's an App for That
Google to Sell Heads-Up Display Glasses by Year's End (NYTimes)
New App Helps Caffeine Drinkers Optimize Their Intake (WTOP) (HuffingtonPost)
Will Microsoft Release Office for the iPad? (PCWorld) (TechNewsWorld) (NYTimes)
Smartphone Security Blankets (NYTimes)
An App Gives You Windows on the iPad and Speedy Internet (NYTimes)

Monday, February 20, 2012

Unpaid Internships: The Best Thing Since Cupcakes or a Recipe for Disaster?

I was researching cupcake places for an upcoming trip to New Mexico (I have a thing for cupcakes) when I came across the following advertisement for an unpaid internship on a cupcake shop’s website:

“We're looking for interns! While these positions are unpaid, there is potential to lead to paid employment with [XYZ Bakery]. An internship with us is a great opportunity to learn all aspects of working in a scratch bakery, you'll have the opportunity to learn about cake batters, fillings, buttercream, fondant, gum paste, cake decorating and tiered cake construction.”
No, I wasn’t thinking of applying, but the employment lawyer in me couldn’t help but raise an eyebrow.  I know that the idea of unpaid internships sounds appealing to both unemployed individuals looking for a foot in the door at a company and companies trying to cut down on labor costs.  As I outlined in an HR Specialist article that I authored a while back, however, unpaid internships in the “for-profit” private sector are only allowed under narrow circumstances.  Most often, internships in “for-profit” settings will be considered employment.  The U.S. Department of Labor published a Fact Sheet summarizing the general criteria that unpaid internships must meet to avoid minimum wage and overtime requirements.

Employers should think twice before engaging individuals as unpaid interns, because if the individual turns out to be an employee, the cost saving technique of using unpaid interns can turn out to have very costly side effects.  Incidentally, the bakery that was advertising for unpaid interns has now closed its business.  I’m guessing that the bakery was a victim of the tough economic climate, but I can’t help but wonder if their unpaid internship program turned out to be a recipe for disaster.

Friday, February 17, 2012

Week in Review

This week both Washington and the workplace paid close attention to technology.  Congress plans to approve a bill that will auction public airwaves in order to help cover the payroll tax cut extension.  The Federal Trade Commission called for better privacy notices for apps directed at kids.  App developers came under scrutiny by members of Congress after reports that many developers were gathering information from phone address books without the owner's knowledge.  And workplaces are realizing how mobile technology saves both time and money.
Technology and the Workplace
Why Companies Should Force Employees to Unplug (Time)
Technology "Geeks" the Most Productive Employees, Says Research (
Mobile Apps Save Small Businesses Time and Money, Study Finds (HuffingtonPost)

Technology and the Law
Congress Will Auction Public Airwaves to Pay for Benefits (NYTimes)
Mobile Apps Take Data Without Permission (NYTimes)
Minnesota Court Hears Case on University Student's Facebook Speech Rights (
FTC Report Calls for More Notice Involving Mobile Apps Directed to Kids (InsidePrivacy)
Judge Allows Incriminating Text Messages Between Spouses in Child Abuse Trial (ABA Journal)
DOJ Losses in Two High-Profile Bribery Trials Linked to Racy Texts by FBI Agents (ABA Journal)

There's an App for That
Pinterest: A Scrapbook on the Web Catches Fire (NYTimes)
Tapping Your Inner Spielberg with a Software Assist (NYTimes)
Top 5 Best New Apps of the Week (Mashable)

Monday, February 13, 2012

Minnesota's Governor Dayton Vetoes Litigation Reform Bills

Last Friday, Governor Mark Dayton vetoed four GOP-sponsored litigation reform bills that had been approved by the Minnesota House and Minnesota Senate. We previously posted about these bills, which were aimed at limiting litigation costs and which were the first bills to reach the Governor’s desk this legislative session. Had they passed, the bills would have: (1) reduced the statute of limitations for filing a lawsuit; (2) limited the recovery of attorney’s fees by successful claimants; (3) created stronger appeal rights to challenge a case being designated as a class action; and (4) reduced the interest rate on monetary judgments not paid while the case is still in the court system.
Minnesota House Speaker Kurt Zellers, R-Maple Grove, has been quoted in the press stating that the GOP does not plan to give up on the proposed legislation. Governor Dayton’s reaction to the proposed bills, however, makes clear that Minnesotans will continue to see a bipartisan battle on this and other fronts. In vetoing the bills, Dayton described the legislation as the product of special interest groups and called the GOP “too extreme to lead,” echoing a similar comment he made in January after Minnesota Republican senators fired his appointee of the Public Utilities Commission. In turn, the GOP is claiming that 62,000 business owners backed the proposed legislation and that the reforms were indirect job bills that would have improved Minnesota’s business climate.
While the litigation reform bills are dead for now, we will watch with interest to see if the debate on tort reform continues and whether Governor Dayton and the legislature are able to make any progress in reaching any meeting of the minds this session.

Friday, February 10, 2012

Week in Review

Love is in the air this week as Valentine's Day approaches, and technology is in the news as it continues to impact and influence the development of the law.  A Senate committee approved a bill this week that would allow television access to Supreme Court proceedings.  A Texas court upheld the use of a defendant's MySpace page as evidence in his murder conviction.  The country of Brazil filed suit against Twitter to try to block accounts that warn drivers of speed traps and roadblocks.  And just as the law has collided with technology, Cupid's arrow has struck mobile devices everywhere, producing sweet apps for Valentine's Day.

Technology and the Law
FTC Sued Over Google's Privacy Changes (LawTechnologyNews)
Senate Committee Approves Bill to Put Cameras in High Court (LawTechnologyNews)
Top Texas Criminal Court OKs Use of Defendant's MySpace Pages to Convict Him in Slaying (ABAJournal)
Brazil Sues Twitter in Bid to Ban Speed Trap and Roadblock Warnings (ABAJournal)

Technology and the Workplace
Oklahoma Worker Resigns After Sending Off-Color Email (NewsOK)
Workplace Policies on Tweeting (AtlantaJournal-Constitution)
Update: Who Owns a Company's Twitter Account? (EmploymentMattersBlog)
Bring Your Own Device: How Consumer Products are Impacting IT (Time)
New 'App Economy' Creates Nearly 500,000 Jobs (eWeek) (FoxNews)

There's an App for That
The Best Apps for Valentine's Day (BusinessInsider)
Apps to Help Singles Flirt Their Way to Romance (NYTimes)
The Sweetest Mobile Apps for Valentine's Day (ChicagoTribune)

Company Smartphones: Whose Data Is It?

Many companies purchase smartphones or cell phones for employees’ use, or pay all or part of their employees’ phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.

So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their employees’ devices.  Not so.  Under the federal Stored Communications Act and Chapter 626A of the Minnesota statutes, electronic communications providers cannot disclose the content of the messages stored in their servers to the subscriber of the telephone service. Only the sender, addressee, or recipient may access that content. Ouch!

Fortunately, there is a solution to this problem -- but it requires preemptive action by the employer. Under the statutes, the sender, addressee, or recipient may provide consent which allows others to access the data. Employers who want the right to access cell phone or smartphone data should obtain specific written consent from employees, including permission to access the content itself and the logs concerning text messages, calls, emails, photos, video, and search history. Consent may be hard to obtain during an investigation; therefore, the careful employer will obtain that consent well in advance of any need to access the data.

Thursday, February 9, 2012

Handbook Disclaimers May Not be Enough

In Minnesota, we’ve known that employee handbooks can be contracts since the Pine River State Bank case in 1983. Since then, courts have continued to find that the policies and statements in employee handbooks to employees can, in fact, be the terms of an enforceable contract between employer and employee. Employees have been awarded significant damages for breach of contract when policies outlined in a handbook are not followed, or promises made in a handbook are not kept.

Minnesota courts have held that employers can protect themselves from contractual liability by including adequate disclaimers in their handbooks. A recent decision by the Pennsylvania Superior Court, however, indicates that in some states, a disclaimer might not be enough. The Pennsylvania court upheld an award of $187.6 million to current and former Wal-Mart employees in a case where the employee handbook was found to create a contract despite the handbook’s inclusion of a disclaimer.

In the Pennsylvania case, Braun v. Wal-Mart Stores, the class of approximately 187,000 hourly-employee plaintiffs alleged that Wal-Mart failed to compensate them for rest breaks and off-the-clock work as mandated in the policies found in its employee handbook. At the beginning of the employee-plaintiffs’ employment, Wal-Mart gave each of them an employee handbook that included the following disclaimer: “[T]he policies and benefits presented in this handbook are for your information only and do not constitute terms or conditions of employment…. This handbook is not a contract.”

Wal-Mart claimed that it did not intend to contract for break times with its employees, and offered as evidence the company's specific disclaimer stating that “[t]his handbook is not a contract.” Despite the disclaimer, the court found that a unilateral contractual relationship existed. The court held that the contractual relationship was created by the handbook itself, as well as by the employees’ performance of duties in accordance with the handbook. Wal-Mart was ordered to honor the rest break and off-the-clock work policies through the payment of damages.

Employers around the nation can learn from Wal-Mart’s costly mistake. It’s good business practice to thoroughly examine policies outlined in employee handbooks to ensure that they comply with the law and are accurately reflected and enforced in daily business practices — regardless of whether the handbook contains a contract preclusion disclaimer.

*Contributed by Brittany Peters as a guest blogger on the Modern Workplace.  She is a whip-smart second year law student at the University of St. Thomas School of Law with an interest in all aspects of employment law.

Wednesday, February 8, 2012

Social Networking Activity at Work Soars

Employees are more active on Facebook and spending more time browsing Twitter at the workplace, according to new research.  Employees were three times more active on Facebook at the office compared with activity during the same period in 2010, and they also browsed Twitter seven times more often. Does this mean employees are wasting more time and slacking? The report suggests the answer is “not necessarily.” A growing number of companies ask workers to use Facebook and Twitter to market products, monitor competitors, and communicate with customers. And they are encouraging this activity on work time. This is the main reason social media usage is exploding in the workplace, according to the study. 

All this social networking carries potential benefits and risks for organizations, and managing it probably isn’t as simple as banning it. Instead, organizations should develop and implement social media policies that are tailored to their particular business and workforce. It may be a good idea for the accounting clerk at a large box retailer to “tweet” positive things about her company while sitting in her cubicle, but is it a good idea for the person working the drive thru at a fast food restaurant to have a cell phone in hand while taking orders? There are other risks to employers who encourage social networking without good policies in place, including possible violations of labor law and “truth in advertising” rules and regulations. There is  no “one size fits all” approach to managing social networking in the workplace, and change happens fast in the technology driven world in which we live and work. Employers should take the time to carefully review and update policies on a regular basis, and make sure employees have access to and understand current policies and expectations within their organization.

A Light at the End of the Tunnel for MN Employers? MN House Bill Limits Attorneys’ Fees

I recently read an article in the Star Tribune highlighting four bills that have passed the Minnesota House which are intended to limit the costs of lawsuits. According to the article, the bills are favored by a coalition of business groups. What caught my eye was the statement that one of the bills would limit attorney fees in “certain cases, such as wrongful termination or sexual harassment, where state law requires the fees be paid as part of the lawsuit.” I wasn’t sure how fees could be limited in sexual harassment cases but not in other types of harassment cases. I did some digging and learned that the bill’s limit on attorneys’ fees actually applies to all types of lawsuits where the winning party is awarded fees by statute. That means that if the bill becomes law, discrimination and harassment cases of all kinds, as well as whistleblower cases and other statutory employment claims, would be affected.

The bill does two things to limit attorneys’ fees. First, it requires the court to consider the reasonableness of the attorneys’ fees sought in relation to the amount of damages awarded to the prevailing party. Second, it limits the amount of attorneys’ fees that a winning party can obtain if that party previously rejected a settlement offer that was more than the amount ultimately recovered. Although a little on the technical side, if this bill passes it will be very helpful to employers, particularly as they try to negotiate settlements of employment lawsuits. Although the bill is expected to pass the Minnesota Senate and be sent to Minnesota Governor Mark Dayton, the governor is expected to veto it. It remains to be seen whether similar legislation or a different version of this bill could become law in Minnesota, but it’s a possibility and a debate worth following.

Friday, February 3, 2012

Week in Review

This week two events have dominated the Web:  Facebook filed for a $5 billion initial public offering, and the New York Giants and New England Patriots are preparing to face off in Super Bowl 46.  But don't get so caught up pondering Mark Zuckerberg's net worth that you overlook the other stories this week concerning technology, the law, and the workplace. Get up to speed on all of it and then pick out your favorite apps for Sunday's big game - the kind for your phone, not your stomach. 

Technology and the Law
Facebook Files for $5 Billion IPO (CNNMoney)
Google Defends Privacy Policy to Congress (TechNewsWorld)
Tweet Locally, Get Sued Globally (InternationalBusinessLawAdvisor) (NYTimes)

Technology and the Workplace
What Does U.S. v. Jones Mean for GPS Tracking by Employers? (CaliforniaPublicAgencyLabor&EmploymentBlog)
NLRB's Second Social Media Report Still Leaves Questions Unanswered (EmploymentLawReport)
A Future Supreme Court Case on Public E-mail Privacy? (WorkplaceProfBlog)

There's an App for That
Top 9 Apps for Super Bowl 2012 (InternationalBusinessTimes)
Scanner Apps Turn the Phone into a Fax Machine (NYTimes)
New App Aims to Fight Poverty (infoTECH)

Thursday, February 2, 2012

What’s Going On at the NLRB: “Quickie” Election Rules Passed and in Process

The National Labor Relations Board has adopted procedural rule changes that would alter how the union representation process unfolds by accelerating the timeline from petition to election.  These and other proposed changes have caused alarm because they are perceived as an effort by the Board to restrict employers’ right to communicate opposition to union organizing.  But another cause for concern should be the administrative headache, nay migraine, the Board’s new rules will likely create. 

If you’re a non-union employer, you may be caught off guard by the administrative burden, not to mention human drama and lurking unfair labor practice charges, that are par for the course when a union organizing campaign gets underway.  Even if you’re well aware of organizing activity prior to any official filing with the Board, the period between petition and election is often fraught and can be difficult to navigate, especially if you believe that a union in the workplace won’t advance your employees’ interests. 

In case it’s helpful, here’s a short, very general overview of the union representation process before an election takes place:

1) Pre-petition.  A union organizer (often employed by the union) connects with one or several employees interested in organizing.  They work to gather support with the ultimate goal of getting employees to sign cards showing their support for the union. 

Note: At no point do you, the employer, get to see the cards.  It’s also not okay for you or your agents (managers, supervisors) to ask employees if they’ve signed a card, nor should you ask employees if any other employees have signed cards. 

Once enough cards are signed to pass the Board’s test for a “showing of interest” in union organizing, the union may ask you, the employer, to voluntarily recognize the union as the employees’ exclusive collective bargaining representative.  If you don’t voluntarily recognize the union (or if they never ask), the process proceeds to step 2.

2) Petition filed.  The union files a petition with the NLRB seeking to be certified as the exclusive bargaining representative for whatever group of employees it names in the petition.  You get notice of the filing, along with a bunch of other paperwork the Board asks you to complete.  (The question at this point is: Are you, the employer, within the jurisdiction of the NLRB?  If you’re not a public entity and you buy anything else that has ever passed through another state...toilet paper, pencils, you name it... the answer is probably yes.) 

The date the petition is filed is a line of demarcation.  Different rules apply in a post-petition world. 

3) Post-petition, pre-election.  Welcome to “laboratory conditions.”  During the laboratory conditions period, the workplace is supposed to stay just like it was pre-petition.  Doing new things - giving raises, introducing new work rules, changing policies - gives rise to an inference that you’re making the changes in order to influence the election, which could result in the election being overturned.  But you also can’t hold back from doing things already set in motion before the petition was filed.  If you announced a rule prior to the petition and set the date it would take effect, or if you always give step increases to a group of employees at this time of year, holding back may give rise an inference that you are doing it in order to influence the election.  Labor counsel can help you navigate what you can’t do and what you should do.  But whatever you do, the union will likely complain.

Also during this period the union is waging a full-out campaign for employees’ hearts and minds, as you may be if you undertake to oppose having a union in the workplace - albeit within the boundaries set by the labor law.  (Here again, labor counsel can help you navigate.)  But even before you can think about a campaign, you have to figure out who the union seeks to represent.  You have an obligation to provide to the union a list of employees eligible to vote in the election, including their home addresses, so that the union can wage their campaign. 

One of the Board’s proposed rule changes would require you to include email addresses and phone numbers in your list of eligible employees.  Making up this list begs two different questions.  One question is which group of employees the union is seeking to represent and does this group make sense as a bargaining unit?  The other is which individual employees belong in that group?

One of the rules the Board has already adopted is to limit opportunities for pre-election hearings to hammer these issues out ahead of time.  In general, unless a large number of employees is in question, the employer’s options are to stipulate to the union’s view of who is in the unit or to challenge individual voters on election day and wait for everything to be cleared up after the fact.  

The Board’s purpose for its proposed changes it to “reduce unnecessary litigation” and to “streamline pre- and post-election procedures.”  It is hard to see how leaving it all for later means that litigation will be reduced.  It will be postponed, certainly, and without the benefit of having clarified or narrowed issues prior to the election. 

In addition to eliminating pre-election hearings, the Board’s new rules shrink the time period between petition and election.  In the past, this period has averaged 42 days.  Going forward, elections must take place “as soon as practicable,” which could be as soon as 14 days from when the petition is filed.  During this short period, employers will not only be pressed to get their heads around who is an eligible voter in pending elections, but also to craft and communicate a position on whether a union will be a net benefit to employees.

Defining appropriate bargaining units and all the issues related to it are probably not front of mind for non-union employers.  However, under the Board's new and proposed framework, the learning curve will be extraordinarily steep if and when employees think about organizing.  We recommend that non-union employers pay attention now, in order to avoid being overwhelmed later.