Thursday, September 27, 2012

Week in Review

It's official. In California, you may now eat, read, or even sleep while driving to work. That is, if you are riding in a self-driving car. On Tuesday, the California governor signed a law that permits and regulates the driving of autonomous cars on California roads. While some may be skeptical, Google co-founder Sergey Brin touts these cars as improving transportation safety, increasing mobility of persons with disabilities, and making commutes more productive. He expressed hopes that these cars will be on the roads in less than five years.

On the other side of the country, states are attempting to regulate the more problematic uses of technology. In New Jersey, the Senate committee released its version of a Facebook-privacy law, which would prohibit employers from asking employees for their social media login information. Additionally, South Carolina has passed the School Violence Protection Law of 2012, which criminalizes student cyberbullying of teachers. While other states may have criminal laws that protect students from cyberbullying, South Carolina is the first state to extend that protection to teachers.

Technology and the Workplace
NJ Facebook Privacy Law Moves Ahead (DE Employment Law Blog) (NJ Biz)
State Tort and CFAA Claims Survive Motion to Dismiss OH Employee Cyberhacking Case (Employer Law Report)
NLRB Judge Shoots Down "Chilling" Social Media Policy (Law 360)
Find My iPad App Finds Thieving Flight Attendant (NBC)
140 Characters of Risk: Some CEOs Fear Twitter (WSJ)

Technology and the Law
Rent-to-Own Laptops Used to Spy on People Having Sex, FTC Says (FOX) (ABA Journal)
Driverless Cars Get Green Light in CA (San Francisco Chronicle) (CNN)
Cyberbulling Law Protects Teachers from Students (NBC)

There's an App for That 
How Smartphones are the New Wingman (CNN)
Need a Ride? Find One With Your Smartphone (WSJ)
MN Uses iPad Gambling to Help Fund New NFL Stadium (NPR)
Thanks to the Cool New Crowd-Sourcing Website, Now You Can Help Prevent Bogus Patents (Above the Law)

Wednesday, September 26, 2012

Employee Voting Rights: What Employers Need to Know

There are many state laws relating to employee’s rights to vote.  With the general election less than six weeks away, I thought a “refresher” on voting rights would be in order this week. 

In Minnesota an employee has a right to paid time off to vote.   Employees have the right “to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work.” Generally, an employer may not dock pay, personal leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employee’s right to voting leave is guilty of a misdemeanor.  I believe that most employers are eager to support the right to vote and avoid violating the law, but they also have a business to run.  So how is an employer supposed to manage Election Day and ensure that the business is running smoothly?  Here are some suggestions.
  • Advance Notice. The statute does not prohibit employers from requesting advance notice of absences for voting time.  You may want to send out a notice to employees stating that time off to vote must be arranged in advance in order to coordinate absences and minimize disruptions.   
  • Reasonable Time Away.  The statue does not contain any time limitations, and it is permissible to limit paid voting leave to a reasonable amount of time.  What is reasonable will depend upon individual circumstances, such as how far away the polling location is from the work facility and whether the employee’s polling place is in a densely populated area that results in long lines, or a rural area with less wait time.  If any part of an employee’s shift takes place when polling places are open, the employee probably has the right to paid voting leave.
  • Proof. Employers may require employees to account for their time and to show proof that they voted, as long as such requirements are not communicated in a way that would tend to discourage or interfere with use of voting leave.
  • Not on Work Time.  Employers do not have to pay voting leave to employees who are not scheduled to work on election day or who actually vote outside of working hours.
  • Notice to Employees. Employers are not obligated to notify employees of the right to voting leave. However, communicating with employees about voting leave and related policies may not only increase civic engagement, it will likely minimize workday disruptions.

Voting rights laws vary from state to state. Employers should ensure that they are familiar with the laws of each state where they employ workers.

Thursday, September 20, 2012

Week in Review


Having a rough week? Be thankful you aren't in the limelight, where technology is waiting to capture your every misstep. From Kate Middleton's topless photos to Mitt Romney's leaked fundraising remarks, nobody seems to be able to catch a break this week. Even Washington Redskins receiver Josh Morgan felt the Twitter-wrath of disappointed fans after his unsportsmanlike conduct penalty arguably contributed to the Redskins' 3-point loss on Sunday. But that doesn't mean these celebrities aren't fighting back. The British royal family has already mounted a privacy lawsuit against the peeping photographer and publishing magazines, Romney supporters are questioning whether the secret recording breached Florida privacy law, and Morgan is speaking out against the threats he received.
In other important news, the NLRB has issued a much watched-for ruling on a social media policy. This is the labor board’s first case on the topic following its release of three reports concerning whether, and how, social media policies might interfere with employees’ “Section 7” rights. These rights are protected by federal labor law, which covers most private employers. In this case, which involved a non-unionized Costco warehouse, the NLRB ruled that the employer had committed unfair labor practices simply by maintaining a social media policy restricting certain employee activities. This decision sheds some further light on the NLRB’s enforcement approach to social media issues, though it will certainly not be its last word on the issue. Stay tuned for further commentary here and further developments at the NLRB and in the courts.

Technology and the Workplace
NFL Ref Removed From Game Due to Facebook Photos (Lawffice Space) (ESPN)
NLRB Issues First Decision Striking Down Employer's Social Media Policy (Labor Relations Today) (Law 360)
Redskins' Josh Morgan Dealing with Twitter Death Threats After His Costly Blunder in Loss (CBS)
Hiring Obstacles That the Web Poses to College Grads (Employer Handbook)

Technology and the Law
Did Secret Romney Video Violate Florida Privacy Law? It Depends (ABA Journal) (WSJ)
Royal Family Wins Initial Round in Lawsuit Over Topless Photos of Sunbathing Duchess of Cambridge (ABA Journal) (NY Times)
Federal Court Finds That Student's Facebook Messages Are Protected Speech (WSJ) (Above the Law)
"Like" Button Leads to Obstruction of Justice Charge (Bluefield Daily Telegraph)
Mobile Device Privacy Act Introduced (Privacy & Security Law Blog)

There's an App for That
5 Apps That Can Help You Achieve Work-Life Balance (Huffington Post)
JetBlue to Offer Free In-Flight Wi-Fi in 2013 (CBS)
Jukebox Apps for the Party-Pleasing D.J. (NY Times)
GPS Shoes Navigate You Home (ABC)

New Forms Required for FCRA Compliance

The Fair Credit Reporting Act (FCRA) regulates employers who use background checks when the information is provided by third parties (i.e., a “Consumer Reporting Agency” or “CRA”).  Before an employer may seek to procure a background check from a CRA, applicants or employees subject to screening must be given certain information, including information about the scope of the check being performed.  The background information may not be obtained without the employer obtaining written consent from the employee or applicant. 
After a report is obtained, FCRA mandates that other procedures be followed by the employer both prior to and at the time any adverse employment action is taken (such as refusing to hire an applicant or terminating an employee’s position).  Employers must supply “pre-adverse employment action notification” by providing the individual with a copy of the background report and a summary of the individual’s rights under FCRA.  After taking the adverse action, the employer is required to send another written notice to the employee or applicant with information about the agency that provided the background information.
Since FCRA’s enactment in 1970, the Federal Trade Commission (FTC) had been the agency overseeing its interpretation.  Following passage of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act, the authority to promulgate FCRA regulations shifted last year to a newly created Consumer Financial Protection Bureau (CFPB).  Recently the CFPB issued new regulations which, among other things, modified the form employers must use to notify employees and applicants of their rights.  A copy of the new “A Summary of Your Rights Under the Fair Credit Reporting Act” form, which employers must begin using on or before January 1, 2013, can be found on the CFPB’s website here.
This notification must be provided to applicants and employees in the employer’s pre-adverse employment action notification.  It must also  be given prior to procuring a background check if the report is an “investigative consumer report” (i.e., a report which includes information obtained through personal interviews with people who are acquainted with the applicant or employee).  By the end of this year, employers should discontinue utilizing the FTC form and replace it with this new one.
The new CFPB regulations on FCRA contain other new forms as well.  CRAs are required to provide notices to both providers and users of their information.  The forms used to provide these notices were also revised by the CFPB and are also located on the CFPB’s website here and here.  

Friday, September 14, 2012

Seize the Day: Chicago Public Schools ‘Radical’ Performance Evaluation Proposal Highlights Unprecedented Bargaining Opportunities for Unionized Employers

Despite an employer offer for substantial wage and other compensation increases over four years, the Chicago Teachers’ Union has taken its members out on strike this week, leaving some 350,000 Chicago Public Schools students wondering what to do with their time and energy. What great divide between the Union and the Schools has precipitated this strike? Primarily, it is the Chicago Public Schools proposal to initiate a new performance evaluation system for teachers, to be implemented gradually and by a joint employer-union committee. In the tradition-bound world of big labor, this is a very radical proposal. 

The fact that Chicago Public Schools has made, and stood by, this proposal is a sign of the times in labor relations and collective bargaining across the country. Although the Schools’ offers in Chicago have precipitated a strike, the outcome of its bargaining strategy remains to be seen. In the current political, cultural and economic environment many unionized employers may have unprecedented opportunities to achieve important changes in their union contracts. Unionized employers should pick up the signals being sent by this and other collective bargaining activity around the country, such as the American Crystal Sugar lockout.  

Since the onset of the 2008 recession, developments in labor relations suggest that some employers are taking relatively radical positions on key contract issues, and that unions are less inclined, or less able, to resist them than they have been in the past. This observation applies not only to economic items like wages and insurance, but also to a range of other subjects such as protection of bargaining unit work, furloughs, use of seniority, and even pay-for-performance. The Chicago Public Schools’ latest proposal includes formation of a joint union-employer committee to study “performance based” differentiated compensation models.

The President of American Crystal Sugar, which locked out its union workers for several months beginning in August, 2011, may have expressed the feelings of many union employers when he said, “We can’t let a labor contract make us sick forever and ever and ever. We have to treat the disease.” Employers who think strategically and make fair and respectful bargaining proposals--even ones that may be heretical to the traditional union shop--may find that unions and the workers they represent are more receptive to them than in the past.
  
In this environment, employers may be able to realize significant new gains in workplace flexibility and productivity. Unionized employers will be wise to seize the day by assessing and planning for these important bargaining opportunities.    

Thursday, September 13, 2012

Week in Review

Sick of hearing about the gloom and doom associated with technology? Me too. That is why this Week in Review will be decidedly more positive, focusing on recent studies about the ways technology can enhance the workplace.

First up: telecommuting. Nearly 4,000 employees -- or 66.3% -- of the US Patent Office do it. With numbers like that, there must be some serious benefits to allowing employees to work remotely. Examples reported in this article include less sick and administrative leave taken, more hours put in (on average, 66.3 more hours per year for telecommuting Patent Office employees), and saved office rental costs ($17 million a year for the Patent Office). Telecommuting may not be an appropriate option for every job, but it just might be worth it to find out.

Another way to harness technological benefits for the workplace: use Facebook to recruit. That is what Hard Rock Cafe of Florence did in 2011 when it created a Facebook page for its restaurant, ran targeted ads, and received applications via the social media site. The restaurant was able to hire a full staff of rock and roll lovers in four weeks and for only $2000. A word of caution to interested employers: reading profile information of applicants could land you in hot water.

Technology and the Workplace
Telecommuting is the Norm at the US Patent Office (ABA Journal) (Washington Post)
Lifeguard-Style Gangnam Spoof Video Got 14 California Lifeguards Fired (Huffington Post)
With Facebook, Your Recruitment Pool is One Billion People (Forbes)
Lenders, Small Businesses Go Online to Find Mate (Star Tribune)
Court Grants Access to Plaintiff's Social Media in Discrimination Case (Employer Handbook)

Technology and the Law
Minnesota Woman Loses Music Downloading Appeal (La Crosse Tribune) (Thomson Reuters) 
6th Circuit Nixes Lie-Detecting MRI in Criminal Case (ABA Journal)
Cops Might Finally Need a Warrant to Read Your Gmail (Huffington Post)
House Approves Sweeping, Warrantless Electronic Spy Powers (Wired)
District Court Rules that Wiretap Act Does Not Prohibit Intercepting Unencrypted Wireless Communications (Volokh Conspiracy)
Facebook Photo Leads to Mistrial in Murder Case (La Crosse Tribune)

There's an App for That
New App Calculates Alimony and Divorce Payments in Massachusetts (ABA Journal)
Apple Unveils Faster, Thinner, iPhone 5 (CNN)
"Please Don't Stalk Me" Sites Help You Lie About Your Location on Twitter (NBC)
17-Year-Old Girl Invents Heart Exam for Cellphones (NBC)
Top 4 Apps to "Gamify" Your Business (PC World)

Friday, September 7, 2012

Discrimination Law: Differences Matter (between state and federal law, that is…)

Most people are aware that both federal and state statutes address discrimination. Most often, though, it’s developments in federal law that grab the headlines. Businesses of all kinds should be aware of the requirements of both federal and state discrimination statutes and should keep in mind that state discrimination laws can have a broader reach and pose greater risks than federal statutes. 
A recent press report helps illustrate the point. A California family alleged that American Airlines discriminated in providing transportation because of the family’s son, who has Down syndrome. The article states that the family may file suit under the Americans with Disabilities Act (ADA). What the article doesn’t mention, however, is the possibility that the family’s lawsuit may well claim violations of California’s state statutes as well. Under certain circumstances, California statutes provide different rights and remedies than those in federal laws like the ADA.
Many state discrimination protections are broader than their federal counterparts, even in states without California’s notoriously complex regulatory environment. In Minnesota, for example, all businesses are prohibited from discriminating in the “terms, conditions, or performance of” business transactions “because of a person's race, national origin, color, sex, sexual orientation, or disability, unless the alleged refusal or discrimination is because of a legitimate business purpose.” Minn. Stat. § 363A.17. Businesses should be aware that this provision protects even a bona fide independent contractor in the same manner that it protects employees. Minnesota’s discrimination provisions—including those relating to employment—also protect more characteristics than federal statutes, prohibiting discrimination on the basis of marital status, public assistance status, and sexual orientation, among others.  
Litigation procedures may also be more plaintiff-friendly under state laws. In Minnesota, plaintiff need not file a charge of discrimination—as is required under Title VII—but can instead head directly to court to file a lawsuit. See Minn. Stat. § 363A.28, Subd. 1. Many other states have anti-discrimination laws that vary from their federal counterparts, and each jurisdiction’s law has its own requirements, legal interpretations, and quirks.
Today, many businesses operate in more than one state. State discrimination protections are likely to continue to expand in breadth and complexity. It’s important for business owners and managers to become familiar with both federal law and the laws and regulations of any state in with which they have substantial contact.

Thursday, September 6, 2012

Week in Review

With a tough economy, efficiency and productivity are often paramount for keeping a business afloat. While technology has certainly aided that cause, it has also provided workers with many time-consuming distractions. The productivity-stealing culprits this week: fantasy football, flirty emails, and co-worker impersonation. Check out the links below to learn more about the cost and benefits of allowing fantasy football teams in the workplace and the potentially unexpected effects of using emoticons in office emails (hint: you may find yourself a new admirer).


Another interesting developments in the world of technology: hacker group Anonymous claims to have obtained and published millions of Apple users' IDs and personal information, but both the FBI and Apple deny that such an a attack occurred or even that such an FBI database of that information ever existed. In other Apple news, questions arose this week as to who "owns" your iTunes library and whether you can bequeath it to your heirs. Read your iTunes Terms and Conditions. You might be surprised at what you find.

Technology and the Workplace
32 Million in U.S.Play Fantasy Football, Much of it Costing Employers Millions (Sports Talk Employment Law) (9 News) (USA Today)
Survey Finds That Office Romances Often Sparked by Emoticon-Laced Emails (Huffington Post)
Kingsport Officer Arrested for Fake Email (Knoxville News Sentinel)
Ethics Charge for 2 Lawyers Over Facebook Friending a Litigant (Employer Handbook)
Workers Put Company and Personal Information on Device, Raising Risk (Sun Sentinel)

Technology and the Law
Hackers Claim to Have 12 Million Apple Device Records, FBI and Apple Deny it (NY Times) (CNN) (CBS)
Can Bruce Willis Leave His iTunes to His Kids? (CNN)
Can You Tag Your Doctor a "Tool" Online? (Without Getting Sued) (Star Tribune) (ABA Journal)
Judge Rules Police Seizure of Text Messages Violates the 4th Amendment (ARS Technica)
Feds Say Mobile-Phone Location Data Not "Constitutionally Protected" (Wired)

There's an App for That
Your App Kit for the NFL Season (Wired)
Elmo Recruited for App That Helps Potty Train Kids (NBC)
Want to Grill Like a Zillionaire? There's an App for That (NPR)
Dems Release Voter Registration Apps, Including Open Source Version (Wired)