Thursday, August 29, 2013

Week in Review

On Wednesday, crowds converged on the Lincoln Memorial and at other venues around the country and around the world to commemorate Martin Luther King, Jr.’s “Dream” speech, made during the 1963 March on Washington. In the fifty years since that famous speech, the way we experience moments that shape history has changed. We are no longer limited to radio, television, newspapers, and news magazines for accounts of important events. This week, people gathered and marched, but were also able to stream live video, tweet, and share their thoughts and images on other social media. This ability to communicate and participate anytime, from anywhere, is becoming central to our daily lives.  Companies are developing mobile app strategies, Facebook continues to grow its mobile members, courts are examining expanded liability for text message senders, and the government is testing contacting jury members via text message to alert them to report for service.

Technology and the Workplace
The Key Components of a Mobile App Strategy (Mashable)
Tech skills are the key to law students’ future employment, says ‘13 Legal Rebel Dan Katz (ABA)
3D Printing For Everyone: MakerBot Releases The Digitizer (Forbes)
Why It's Important To Herd The Social Media Sheep (Forbes)
5 Innovative Marketing Solutions That Can Help Your Business Grow (Forbes)

Technology and the Law
When do I report for jury duty? NJ offers text alerts for prospective jurors (ABA)
Senders of Texts to Drivers Can Be Held Liable, Court Rules (WSJ)
Cellphone users may opt out of robo-calls, court says in Dell ruling (LATimes)
Did you know Montana was a leader on privacy laws? Neither did Montana (WashPost)
Attacks like the one against the New York Times should put consumers on alert (WashPost)

There's an App for That
Facebook's mobile business triples (CNN)
App Curates YouTube Videos Based on Your Tastes (Mashable)
Productivity apps, get things done with these apps (LATimes)
At Google, apps to help discover (and conquer) the world around you (CNN)
App of the Week: Immersion (ABC)

Wednesday, August 28, 2013

Class Action Waivers Gain Momentum as More Courts Reject NLRB Ban on Waivers

Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers responded to the rulings by requiring employees to enter into arbitration agreements waiving the right to go to court and to participate in class-based court or arbitration proceedings. By requiring employees to arbitrate claims on an individual, rather than a class or collective basis, employers hope to avoid the substantial expense and time associated with the rise in employment class action litigation over the years.

There has, however, been some continued uncertainty as to whether employers can obtain a fully enforceable waiver of an employee’s class action rights.  The federal National Labor Relations Board, which enforces federal labor law, has issued a number of high-profile, controversial rulings in recent years.  Among those rulings, the NLRB held, in D.R. Horton, that a class waiver under the federal Fair Labor Standards Act (“FLSA”) was unenforceable, because federal labor law gives non-management employees the right to engage in “protected concerted activity,” including collective legal actions.  Following the D.R. Horton ruling, employers were not certain how courts would respond to class action waivers, particularly waivers that encompassed wage and hour claims under the FLSA.

As of this month, however, the majority of federal courts to address class action waivers since D.R. Horton have upheld those waivers. Earlier this year, we posted about the Eighth Circuit’s decision in Owen v. Bristol Care, enforcing a mandatory arbitration agreement that included a waiver of FLSA class action rights. This month, two more federal appellate courts joined the Eighth Circuit in declining to follow D.R. Horton. The Second Circuit Court of Appeals issued a ruling in Sutherland v. Ernst & Young, enforcing a class action waiver under the FLSA, and, last week, the Ninth Circuit Court of Appeals issued a unanimous ruling in Richards v. Ernst & Young that rejected the D.R. Horton approach. Numerous federal district courts have also declined to follow D.R. Horton and have enforced mandatory arbitration agreements containing class action waivers.

Despite these victories, some caution is still warranted. Not all jurisdictions have weighed in on the NLRB’s position in D.R. Horton, leaving some uncertainty for employers outside the Second, Eighth, or Ninth Circuits. In addition, the NLRB is standing by its position in D.R. Horton, and, just this month, an administrative law judge found that an employer violated federal labor law by requiring a mandatory class waiver arbitration agreement from employees.

So far, however, the trend in the courts has been to uphold these waivers. In deciding whether your company is interested in requiring arbitration agreements that include class action waivers, you will want to carefully weigh the pros and cons of arbitration. There are numerous advantages to arbitration, including, first and foremost, the possibility of avoiding highly expensive class claims. Other advantages over litigation in court can include avoiding unfavorable court jurisdictions and the potential for cost savings, greater efficiencies, and greater confidentiality of the proceedings. There are, however, also disadvantages to arbitration. Arbitration is not always less costly or faster than court proceedings, and appeal rights from an arbitration ruling are significantly more limited than from a court proceeding. In addition, while courts are increasingly willing to enforce arbitration agreements, arbitration provisions must be carefully drafted, must be even-handed, and must not require employees to incur excessive arbitration fees that may preclude the filing of a claim. 

Depending on your company’s size, industry, and particular employment law risks, arbitration agreements may or may not be the right choice, but the growing buzz around the potential benefits of arbitration agreements and the trend in increased enforceability may warrant a closer look.


Thursday, August 22, 2013

Week in Review

Not too long ago a discussion about face recognition technology sounded like something straight out of a futuristic spy thriller. Today, such technology is well into development. The Department of Homeland Security is testing a crowd-scanning program that will allow it to identify the faces of people on the terrorism watch list. In addition, corporate training courses are developing scanning software to detect when trainees are distracted. The technology tracks the user’s eye movements and when it detects the user looking away for more than a few seconds, it pauses the program and forces the user to pay attention in order to complete the course. In other developments, it was reported this week that PayPal is testing app features that will allow local businesses to use a face-verification system for phone payments.

Technology and the Workplace
This Software Won't Let You Look Away (Atlantic)
How to Use Skype Keyboard Shortcuts (Mashable)
Four easy ways to break the law by viewing an employee's Facebook posts (Employer Handbook)
Birthday Greetings, Now Sent by Text and Twitter (NYTimes)
Ditch Your Passwords -- US Gov To Issue Secure Online IDs (Forbes)
AOL CEO: Publicly firing employee for taking a photo was a mistake (CNN)

Technology and the Law
Facial scanning system for crowds shows improvement in tests by Homeland Security (ABA)
Software That Exposes Faked Photos (NYTimes)
Cracks in California’s Cyber-Revenge Bill (WSJ)
Elena Kagan Admits Supreme Court Justices Haven’t Quite Figured Out Email Yet (Slate)

There's an App for That
PayPal Testing Face-Verification System for Mobile Payments (Mashable)
New York victim of street harassment? There's an app for that (Guardian)
YouTube picture-in-picture feature falls short of being really useful (LATimes)
How to easily add 1 GB of free storage to Dropbox using Mailbox (LATimes)
Need a compatible roommate? Five apps and sites to help you search (LATimes)
Fitness Trackers: Step by Step to Better Health or Driving Us Crazy? (ABC)

Electronic Cigarettes at Work?

Electronic cigarettes or “e-cigarettes” have been in the news and are apparently growing in popularity. The New York Times recently published an online debate on the potential health benefits of e-cigarettes and their potential regulation. Other news outlets have published similar articles.  (see, e.g., here, here, and here). Many employers are wondering how to react to employees who want to use e-cigarettes  at work.

E-cigarettes are battery-powered devices that allow users to inhale nicotine vapors from a heated liquid. Proponents of e-cigarettes argue that they are a safer alternative to smoking and can help some smokers quit. Detractors believe that e-cigarettes could cause more Americans to become addicted to nicotine and that, at a minimum, more research and regulation are necessary to manage health risks.

According to the Minnesota Department of Health, the State’s smoking ban does not apply to e-cigarettes. (See MDH's Smoking Ban FAQ)  Cities like St. Paul have passed tougher regulation of e-cigarettes sales, but the City’s ordinance does not affect where the devices can be used. 
Many employers are unsure how to react. Some want to prohibit the use of e-cigarettes while others see potential benefits. The devices may detract from employee productivity and create a distraction, or they could prevent smoke breaks that cause employees to leave the workplace. 

Minnesota employers need to be cautious whenever they seek to regulate a “lawful consumable product” because of the State statute prohibiting adverse employment decisions based on their off-duty use. The provisions of that statute, however, are limited to restricting decisions due related to  “use . . . off the premises of the employer during nonworking hours.”  Use of a lawful consumable product at work can be restricted.
As with so many employment issues, employers  should set aside their personal judgments regarding the wisdom of e-cigarette use and base their policies on actual effects of their use in the workplace. When considering whether to allow or ban e-cigarettes, employers should focus on employee productivity and morale and on any other actual, work-related effects of e-cigarette use. Employers should also keep their ears open for news regarding additional government regulation or research regarding potential health effects on coworkers.

Thursday, August 15, 2013

Week In Review

This week, as in many past weeks, a lot of media attention has been paid to privacy: creating it, protecting it, and invading it. Employees are reported to have been fired or disciplined for recording, revealing or posting the wrong thing. Hackers are worried about government surveillance of their activities, while homeowners are worried about hackers infiltrating their home security systems. Electronic health information systems create new opportunities for health-enhancing information sharing, while simultaneously creating risks to patient privacy and safety. Meanwhile, the apps just keep on coming. Find a job? Ask for leave? Collaborate with co-workers on a document? Check out election results? There’s an app for all of those.

Technology and the Workplace

GPM creates social media guide for employers.

Reporter fired for revealing blog post. (Delaware Employment Law Blog)

Employers use trainings to integrate generations and span technology gap in workplace.  (Washington Post) 
Why attempts to make email completely private continue to fail.  (MIT Technology Review)

Facebook COO criticized for seeking unpaid intern.  (LA Times)

Technology and the Law

AOL CEO publicly fires employee for recording meeting and conference call.  (NPR)
Hacker conferences dominated by concerns of government surveillance.  (CBS)
Youtube video of officers’ conduct while serving civil warrant for overdue fee could trigger discipline. (ABA)
Hacking of “smart home” security systems raises new privacy concerns.  (LA Times)

With increasingly digital health information systems comes increased need for risk management.  (Forbes)
FCC announces change to rules and costs of prison phone calls.  (The Atlantic)

There's and App for That

The Department of Labor Develops an App that links consumer reviews with public workplace enforcement data. (

New App Released to Allow Employees to Request Leave or View Holidays on Smartphone.  (PRWEB)
Scouring job listings gets easier with a new app.  (Marketwire)

Top 10 Technology Trends for Human Resources Departments in 2014. (Forbes)
A roundup of the best election season apps.  (ABC)

“Modern word processor” Quip allows collaboration across devices (The Guardian)

Wednesday, August 14, 2013

Another Piece of the Puzzle: Social Media Concerns (Just) Outside the Employment Relationship

This blog has focused heavily on social media-related issues that arise in the employer/employee relationship and that have been a continual challenge for employers over the last decade. Employment-related social media issues are often close cousins to other important issues created by technology generally and social media specifically. It is crucial for businesses to step back and take a big-picture look at the wide range of social media-related considerations that affect the way they communicate, operate and compete. 

Our firm recently completed a publication that identifies some of those other key concerns, in addition to reviewing employment-related social media guidelines. Topics covered include:

·       Protection of Confidential Business Information:  We have previously blogged about the difficulty of keeping confidential business information – including trade secrets – truly confidential in this electronic age. This involves protection of information from outside competitors, as well as internal management of employee conduct and protection against future competition from former employees. There is a particular tension between a company’s desire to have a social media presence, including a dynamic and information-loaded website, and the need to protect of confidential information. Even if information qualifies as a legally protectable trade secret (or legally protectable confidential information), the protection can be lost if the company allows the information to be disclosed to the public, whether via social media or otherwise. Communicating clear guidelines to employees, as well as constant, careful management of electronic content, is crucial.
·       Violation of Others’ Copyrights and Other Proprietary Interests:  This is the flip side of an employer’s need to protect its own confidential business information. Companies need to take steps to ensure that their employees are not violating the property rights of others, including copyrights, through social media content sharing or the posting of information on the employer’s website.  Even republication of information obtained from public sources can trigger liability if the information was improperly published in the first instance. Companies need to carefully control the information that is disseminated through social media and take prompt remedial action if others’ property rights are encroached upon. This is yet another area requiring clear guidelines for employees regarding acceptable and unacceptable conduct.

·       Defamation of Competitors:  There is sometimes a very fine line between a company’s statements extolling the superiority of its services or products and its statements running down the competition. If false, negative statements about a competitor can constitute business defamation. Companies may be held legally responsible for their employees’ defamatory statements, particularly if the employer has reason to know about them and fails to act to control or remedy those communications. Such derogatory comments may also harm a company’s own business reputation, even if they don’t create legal responsibility. Whether made on social media or otherwise, such statements create risk and employers should provide clear guidance to their employees about acceptable parameters for discussion of competitors.

·       Privacy Considerations:  Social media use triggers a variety of privacy concerns that flow from both employer/employee relationships and company/customer relationships. We have previously blogged about privacy issues in email searches, employees’ privacy rights in their social media accounts, and NLRB rulings related to employee privacy.  State wiretapping and surveillance laws and federal laws such as the Electronic Communications Privacy Act, the Stored Communications Act, and the Computer Fraud and Abuse Act also apply to how a company uses and protects information gathered from customers and users of its website.

A Legal Guide To Social Media in the Workplace provides an overview of these considerations, all of which employers should have in mind as they draft their social media and electronic information policies. 

Thursday, August 8, 2013

Week in Review

Attorneys often counsel and represent clients as they deal with the consequences of their online misdeeds. This week, for example, a fired employee sued his former employer, claiming that his co-workers shocked him with a Taser and posted a video of the Taser session on YouTube. Sometimes it is the attorneys themselves who get into online trouble, and who face discipline for their conduct. It was reported this week that one attorney was disciplined after hacking into a fellow attorney’s email account, and another attorney was suspended from the practice of law for five years after advising a client to “clean up” his Facebook photos in light of an opposing party’s discovery requests. It leads you to wonder whether all those involved could benefit from new apps that help to sharpen your brain.

Technology and the Workplace
Suit says co-workers shocked employee with stun gun dozens of times and posted videos on YouTube (ABA Journal)
Hiring IT work in the “open talent economy” (Wash Post)
Nearly one in five U.S. adults online use Twitter, survey finds (LATimes)
Less Than A Third Of Top CEOs Are On Social Media (Forbes)
Five Gadgets That Every Business Traveler Should Carry (Forbes)

Technology and the Law
Partner reprimanded after taking plea in attorney email hacking case (ABA Journal)
Lawyer agrees to five-year suspension for advising client to clean up his Facebook photos (ABA Journal)
Samsung seeks smartwatch trademarks (CBS)
Apple-Samsung spat may ignite tech patent war (NBC)
As Twitter Expands Reach, Abuse Policy Gets Added Scrutiny (NPR)

There's an App for That
Five apps that could help sharpen the brain (LATimes)
Windows Phone App Studio Makes Building Apps Simple (Mashable)
Facebook to test Trending Topics feature, show older posts more often (LATimes)
Google testing local news for Google Now mobile app, report says (LATimes)
Instagram video gets import option, works on more Android phones (CNET)

Wednesday, August 7, 2013

No Photographs, Please

A recently-surfaced Advice Memorandum from the National Labor Board’s (NLRB’s) Office of the General Counsel opined that an employer social media policy prohibiting employees from photographing or video recording the employer’s facility unlawfully interfered with employees’ Section 7 rights. Before you run to revise any policies with a similar prohibition, we encourage you to take a deep breath and consider the consequences.
Many employers serve vulnerable populations, such as the elderly, the intellectually disabled, or those with mental health disabilities. In these contexts, HIPAA precludes employers and employees from publishing information that makes clients identifiable without their written authorization (which must be annually renewed). Other employers are in the business of developing novel technologies or systems. It may be necessary for these employers to have policies precluding photographs and video recordings in the workplace in order to demonstrate that they are taking necessary steps to adequately protect confidential and trade secret information, which itself is a challenging task in today’s plugged-in world. For employers like these, the consequences of failing to have policies to protect information are probably worse than the consequences of failing to change policies based on the latest word from the NLRB. 
Employers certainly need to stay abreast of the direction the NLRB is moving when it comes to social media policies. Keep in mind, however, that the NLRB generally analyzes specific policies at specific workplaces in their specific context. If your workplace is a hot bed of organizing activity or rife with disgruntled employees, keying in to the headaches that might be caused if the NLRB doesn’t like your policies probably makes sense. On the other hand, if you have vulnerable clients, trade secret information to protect, or other well-thought-out reasons to limit photography or videography in the workplace, you may be justified in keeping policies in place that restrict the dissemination of protected or confidential information --at least for now.

Thursday, August 1, 2013

Week in Review

Some people spend more time with their smartphones than with their friends. This attachment to technology has a number of implications, and not just for a person’s social life. This week the Fifth Circuit Court of Appeals held that the government can compel a cellphone company to turn over phone location data without establishing probable cause. The court found that location data was admissible as a business record. Elsewhere, Justice Department lawyers asked the Supreme Court to consider a First Circuit Court of Appeals decision that held that police need a warrant to search the contents of a cellphone. Access and security are also on the minds of app developers, who are focusing on making sure phones have proper security protection.   

Technology and the Workplace
Survey underscores gap in employer/employee BYOD privacy expectations (Employer Handbook)
As Work Habits Change, Software Makers Rush to Innovate (NYTimes)
Twitter transparency report shows growing government demand for data (WashPost)
How to Actually Get a Job on Twitter (Atlantic)
Is The Way To Tech Workers' Loyalty Through Their Stomachs? (NPR)

Technology and the Law
Appeals Court: No Warrant Needed for Phone Location Data (WSJ)
Judges Ask Supreme Court to Take On Cell-Phone Searches (WSJ)
Apple has China labor problems-again (CBS)
Court Holds That Employer Did Not Have "Possession, Custody or Control" of Text Messages Sent or Received on its Employees' Personal Cell Phones (Employer Law Report)
Carjacking goes digital, 'white hat' hackers demonstrate (NBC)
There's an App for That
Norton, McAfee tackle user privacy in Android mobile security apps (LATimes)
Office available on Android phones, but not tablets (WashPost)
Google debuts free Zagat site, apps (CNN)
4chan's Founder Opens Up About His New Drawing App (Forbes)
Are America's bridges safe? New app for reporting infrastructure problems (Yahoo)