Thursday, September 26, 2013

Week in Review

This week, everyone seemed to have an opinion about Apple’s new iOS 7 software for iPhones – whether they loved its new features or were frustrated that it took too long for data to download. While many people were absorbed in their phones, social media also reached another milestone. For the first time, research displayed on the Tumblr website was cited in an amicus brief to the U.S. Supreme Court. Elsewhere, an investigation by the New York Attorney General revealed that many of the reviews on websites such as Yelp are fake. Nineteen companies that have been found responsible for arranging and paying for fake reviews will have to stop this practice and pay fines for their conduct. Other technology news this week includes apps that help with workplace stress, Twitter’s introduction of personal recommendations, and LinkedIn’s scandal over its misuse of users’ emails.

Technology and the Workplace
Should LinkedIn be clearer about harvesting email contacts? (LATimes)
24 Essential Mind Mapping and Brainstorming Tools (Mashable)
N.Y. Governor Unveils Plan To Create 'Texting Zones' For Distracted Drivers (ABC)
Recent Grad Finds Job Through Her Dad's LinkedIn Account (Forbes)
The Top 7 Social Media Marketing Trends That Will Dominate 2014 (Forbes)

Technology and the Law
Fake Reviewers Get Zero Stars From New York Attorney General (NPR)
The First Time a Tumblr Has Been Used in an Argument in a Supreme Court Brief (Atlantic)
Law firm can read ex-partner’s incoming email, opinion says, but must forward email about his cases (ABA)
What will 3-D printing do to IP Law? Manufacturing? Product liability? (ABA)
Woman sues paramedic, claims he posted her photo on Twitter with ‘wide load’ caption (ABA)

There's an App for That
Twitter rolls out personal recommendations feature ahead of IPO (LATimes)
7 Apps To Beat Stress In The Workplace (Forbes)
Trouble Using iOS 7? Here Are 15 Tricks To Make The Transition Easier (Forbes)
5 things you need to know about revamped comments on YouTube (LATimes)
The app that can read your mind (CNN)


Tuesday, September 24, 2013

Best Practices for Workplace Surveillance

Last week, this blog featured posts about the growth and reported benefits of workplace surveillance, as well as some of the legal risks that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs designed to detect theft, “cyberloafing,” or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve performance, but these potential benefits should be balanced against legal risks posed by the workplace surveillance.

As promised last week, this post focuses on some best practices and practical tips related to workplace surveillance. Regardless of the type of employee surveillance at issue, an employer should consider doing the following:
·       Be Mindful of Your Company Culture:  Apart from legal risks, surveillance can carry practical downsides that may, for some employers, outweigh the potential upsides of employee surveillance. Depending on the company’s culture and the type of surveillance being used, surveillance can injure trust, relationships, and create negative morale. These days, most companies reserve the right to monitor employer provided technology and work emails, but installing advanced tracking devices or video cameras in the workplace is less common and might, for some employers, lead to an unacceptable level of negative fall-out. Before embarking on surveillance, each employer should determine the unique impact of surveillance on its workplace and whether the benefits of surveillance outweigh any downsides. 

·       Provide Notice of Potential Surveillance:  If your company does decide to engage in surveillance, the company should notify employees in advance of any potential surveillance. This notice should be provided in writing, and the company should obtain a signed acknowledgement of receipt from each employee. In addition, if video surveillance is used, it is a good idea to post a notice of the video monitoring in monitored areas. Taking steps to be transparent can reduce employees’ negative reaction to surveillance by ensuring employees are aware of when and how they might be monitored and what is and is not private activity. Notice can also reduce legal risks, because the surveillance will seem more reasonable, and the employer will have arguments that employees consented to the surveillance. 

·       Be Mindful of Where You Place Surveillance Tools:  If your company does decide to engage in surveillance, be mindful of where you place tracking or surveillance tools and check with legal counsel on any applicable federal, state or local laws. For example, some areas, such as restrooms or changing rooms, are so private that they should be off limits for surveillance. In addition, some activities, such as union meetings, are off limits and should not be subject to any surveillance. 

·       Technology Policy or User Agreement:  Employers should establish and distribute a clear, lawful employee technology policy or enter into user technology agreements with employees. The policy or user agreement should set forth the permissible and impermissible uses of workplace technology and social media and should explain when employees’ technology usage may be monitored. The policy or user agreement might also include the following:

o   A reminder that technology usage on company provided or reimbursed devices is not private and may be monitored by the company;

o   A prohibition or limitation on the personal use of technology on company time;

o   A prohibition on using employer-provided or reimbursed technology to engage in unlawful acts, such as harassment, defamation, or the like;

o   The requirement that employees not use technology to disclose or improperly use the employer’s confidential information, trade secrets, or sensitive financial information;

o   A prohibition or limitation on the use of technology by non-exempt employees outside of normal working hours to minimize “working time” for which such employees must be paid;

o   A warning to employees that any endorsements of the company or its products or services must be truthful and disclose the employee’s affiliation with the company; and

o   A requirement that employees agree to surrender company devices when employment ends and permit the company to remove any company-related data from an employee’s personal devices used for work. 

·       Conduct Narrowly Tailored Surveillance:  An employer should have good business justifications for any surveillance and should narrowly tailor its surveillance to its business purpose.  More specifically, a company should:

o   Only conduct surveillance for legitimate business purposes, such as to decrease employee dishonesty, to promote productivity, to prevent or respond to inappropriate technology usage, and/or to investigate misconduct;

o   Surveillance should be limited to a reasonable time, scope, and subject;

o   An employer should only gather the information necessary to accomplish the business purpose and should not gather extraneous, personal information about an employee;

o   When an employer identifies employee information as personal or otherwise irrelevant, it should cease reviewing the information; and

o   Surveillance should be conducted with the guidance of legal counsel and by trained individuals.

Friday, September 20, 2013

Week in Review

It is so easy to press that “like” button on a Facebook post by your best friend, your coworker, or your favorite company. In that quick second, it is unlikely that a person could contemplate all the potential legal and Constitutional issues that may be wrapped up in such an action. This week, however, the Fourth Circuit Court of Appeals held that “liking” a Facebook post is Constitutionally-protected Free Speech. In the case, six employees were fired after they supported a candidate for sheriff by “liking” him on Facebook. The Court found that “liking” him was equivalent to showing political support by putting a sign on their lawn and is protected speech. Elsewhere this week, new apps are helping people’s memories and Pandora won a court battle over the licensing fees of the music it streams.  

Technology and the Workplace
Top Ten Cloud Computing Skills Recruiters Search For (Forbes)
Salesforce and Workday Form Cloud Alliance (NYTimes)
Technology at Work: Five Companies Doing IT Right (Forbes)
Improving the Big Data Toolkit (NYTimes)
Embracing the police force of the future (CNN)

Technology and the Law
Court: Clicking 'Like' on Facebook Is Free Speech (ABC)
Court Gives a Victory to Pandora Over Licensing Streaming Music (NYTimes)
Reddit, Civil Liberties Groups Renew Push for Email Privacy (Mashable)
Surveillance court releases new opinion upholding NSA collection of phone data (ABA)
Twitter’s Counsel Helped Make Financial Tweets Legal (WSJ)

There's an App for That
Google buys smartphone file-swapping app Bump as sharing grows (Guardian)
Outsource Your Memory, With an App (NYTimes)
IPhone owners have problems installing iOS 7 (CNN)
How secure is your iPhone 5S fingerprint? (CNN)
An App That Thwarts Potential Smartphone Thieves (WCCO)

Wednesday, September 18, 2013

Legal Issues with Employee Surveillance

Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 

Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether through surveillance or otherwise, and must sequester it within a small need-to-know circle when it is unintentionally obtained. 

Protected Activity Laws.  A variety of laws protect certain employee activities, and legal risks are created for employers when surveillance encompasses legally-protected activity. The National Labor Relations Act (NLRA) is often applied to employer monitoring and surveillance activity, with varying results depending on the particular circumstances.  Surveillance, or even the impression of surveillance, if instituted in response to a union organizing campaign, is likely to violate the NLRA. On the other hand, enhanced surveillance of employees that coincides with organizing activity may be found not to violate the law when it is justified by legitimate concerns for security, product integrity, or quality control. In a unionized workplace, video surveillance implemented without first bargaining with the union may violate the NLRA, but ongoing video surveillance for security reasons is otherwise generally permitted. 

A patchwork of other state and federal laws protecting certain employee activity may also be implicated in employer surveillance initiatives. These include state prohibitions against taking employment action based on employees’ use of lawful consumable products such as tobacco. They also include federal and state “whistleblower” laws, as well as a wide range of statutes containing anti-retaliation provisions. Anytime surveillance looks for or finds such activity, it is important for the employer to have a policy and practice in place designed to reduce the possibility of liability arising from such information.

Privacy.  Laws governing general rights of privacy for employees vary from state to state. Many states also have laws about audio (and in some cases, video) recording of employee activity. Employers operating in multiple states must be especially mindful of the variations in these laws to avoid legal claims of invasion of privacy or unlawful monitoring. 

Email.  Monitoring employee work emails and online activity involves some risk of legal claims, but it is an appropriate and lawful action if an employer is using best practices, as discussed in our posts here and here. Generally, one of the best ways for an employer to reduce its risk of liability in this context is by providing employees with clear advance notice of its surveillance policies and by creating policies that set appropriate expectations regarding privacy on the employer’s systems and property. 

Other Federal Laws.  A variety of other federal enactments have important implications for employers engaged in workplace surveillance. These include the Fair Credit Reporting Act, which governs investigative reports prepared by a third party for employment purposes, the Electronic Communications Privacy Act, the Stored Communications Act, and the Computer Fraud and Abuse Act, all of which have effects that may enable or limit surveillance depending on the facts and circumstances. 

We will continue to blog about this important subject next week, offering some practical tips and best practices. Meanwhile, we encourage you to refer to the DEED/Gray Plant Mooty Social Media Guide that addresses many surveillance-related issues. The guide is available for free on GPM's website.

Tuesday, September 17, 2013

Can Employer Surveillance Influence Employee Behavior?

A couple of recent articles in the New York Times and The Atlantic magazine caught my attention. Although the articles are from very different perspectives, both articles made me think about dishonest employees and how employers deal with them. 

Let’s start with the basic principle addressed in The Atlantic article. The author points out that most of us lie. Apparently, Americans lie about 1.65 times per day. Nonetheless, lying is the most disliked among the 555 personality traits ranked in a recent survey.   

In the modern workplace, employers’ need to keep employees honest hasn’t changed. Effective surveillance has always been a part of employers’ strategy for deterring employee dishonesty, and new technologies offer a wide variety of monitoring opportunities, such as: 
  • Online research and social media.  The internet may be the source of information that contradicts employees’ claims of injury, illness, emotional distress, or other personal circumstances in a way that is valuable to the employer in dispute.
  • Monitoring software.  Employers can install software capable of monitoring almost any aspect of employees’ use of the employers’ electronic systems, including speed of performance, unauthorized accessing of data or internet sites, and email communication
  • Surveillance methods.  These systems can include cameras, microphones, and facility access recording devices
  • Remote tracking.  Employee location can be tracked through various GPS devices associated with cell phones, vehicles, and computers.
Research shows that employer surveillance works not only to discourage dishonesty; it may also improve business results. In the New York Times article, the author points out that when restaurant employees knew that they were being monitored, they increased their sales efforts while reducing their dishonest practices.

As an employment lawyer, I was struck by the fact that neither article discussed the risks associated with using employee surveillance to alter employee behavior. Employers need to be careful about how they use these mechanisms. Watch for our next post, which will discuss how employers can minimize the risks associated with employee surveillance.

Thursday, September 12, 2013

Week in Review

This week, people around the world remembered the anniversary of 9/11, and President Obama continued to contemplate actions against Syria. Even passive users who may not read the newspaper experienced these events through technology and through hashtags like #neverforget or #syria. Also this week, in the midst of somber news and remembrance, a distraction emerged in the form of two new iPhones featuring new colors and fingerprint identification technology. For every new form of technology, however, there is also a spate of new lawsuits. This week, for example, a U.S. district court denied Google’s motion to dismiss a class-action lawsuit in which the plaintiffs argued that Google Street View violates the Wiretap Act. Samsung also continued to face patent disputes, Yahoo filed a lawsuit against the NSA, and the FTC and Verizon appeared before the U.S. Court of Appeals for the District of Columbia to argue about access and regulation of the internet.

Technology and the Workplace
Waitress suspended for posting racist customer receipt on Facebook (Employer Handbook)
Delaware Ct. Finds No Privilege for Email Sent from Work Account (Delaware Employment Blog)
Dean Apologizes for Censoring Professor’s NSA Blog Post (WSJ)
NLRB Smacks Hand of Employer Over Facebook Firing (Delaware Employment Blog)
Google+ rolls out features to help publishers build Web audience (LATimes)

Technology and the Law
Privacy class action regarding Google Street View can go forward, 9th Circuit says (ABA)
NSA ‘systematically violated’ safeguards for phone surveillance program, declassified opinion says (ABA)
Yahoo files lawsuit against NSA over user data requests (Guardian)
Smartphones Again Center Stage in Key Patent Case (WSJ)
Judges Hear Arguments on Rules for Internet (NYTimes)

There's an App for That
26 Beautiful 9/11 Memorial Instagram Images From NYC (Mashable)
Apple update: Here's how Apple's iPhone 5S, iPhone 5C work (LATimes)
5 Apps to Map Your Bike Route (Mashable)
Start-up Spotlight: Storage app Clutter wants to clean up your life (LATimes)
New Alarm App Will Shake You Out of Bed (Mashable)

The Modern Workplace: Focus on Benefits

Health Exchange Notice Due to Employees by October 1

We all breathed a huge sigh of relief when the Obama Administration announced that the employer mandate under health care reform would be postponed until 2015.  (Although we can’t help reminding employers that they need to be working toward compliance even now…) Lately we’ve been hearing from employers wondering if they still have to provide exchange notices. Yes! The notice is still required, despite the delay in the employer mandate. Here’s a refresher on what that entails.
What is the exchange notice?

The purpose of the notice is to make sure employees know the exchanges (now called “Health Insurance Marketplaces”) exist, and have a general idea about how exchange coverage differs from employer plan coverage.
Do all employers have to give the notice?

Almost all. Any employer subject to the Fair Labor Standards Act (FLSA) must provide the notice, whether or not the employer provides health coverage. In general, employers with one or more employees involved in interstate commerce are subject to the FLSA.
Does the notice have to go to all employees?
Yes. The notice must be provided to all employees, full-time and part-time, whether or not they are currently enrolled in the employer’s health plan. It does not have to be sent separately to dependents.

When does notice have to be provided?
No later than October 1 of this year for current employees. After that, new employees must receive the notice within 14 days of starting work.

What does the notice have to say?
The notice has to inform employees:

Of the existence of the Health Insurance Marketplace;
Whether or not the employer offers health coverage to employees;

If so, whether the coverage meets minimum value requirements;
That if no coverage is offered, or the coverage doesn’t meet minimum value requirements, a subsidy (premium tax credit) for coverage may be available to the employee;

That if the employee purchases coverage on the exchange, any employer contribution to coverage may be lost; and
That the employer contribution to coverage is excludable from income.

The Department of Labor has provided a model notice.  It includes two different versions—one for employers that offer coverage, and one for employers that don’t. Department of Labor guidance and the model notices are available at  the DOL website. A new COBRA model election notice including information about the Health Insurance Marketplaces has also been issued. It is available at the same website.
Do employers have to use the model notice?

No, but they do need to provide a notice meeting the content requirements above. The model notice for employers offering coverage is three pages long. The third page is an optional part of the notice. It will be helpful for employees, but it is not required.
Can the notice be sent electronically?

Yes, if it meets the Department of Labor Requirements. Generally speaking, if all employees have a computer at their desk, they can be given the notice electronically. If not, some of them may need to receive it in paper form.
Is there a fine or a penalty if I don’t send the notice?
No.  The Department of Labor has said that employers should provide the notice, but there is no fine or penalty for failing to do so.   Because it’s relatively easy to comply using the model notice, we do advise employers to comply.

Wednesday, September 11, 2013

Help! How Do I Complete the Form I-9 for a Remote Hire?

While making a presentation to clients yesterday, I was reminded of the practical and logistical problems many employers face when trying to complete the I-9 process for remote employees. One of my presentation hypotheticals involved a scenario in which a Minnesota company hired a California employee and wanted to complete Section 2 of the I-9 by having the new hire send scanned copies of her identification and employment authorization documents by email. Sounds like a logical and modern approach to I-9 completion, right? Unfortunately, it doesn’t comply with I-9 requirements.

The new version of the Form I-9, released on March 8, 2013, and effective for all employers as of May 7, 2013, makes clear in the introduction to Section 2 that the employer must “physically examine” one document from List A or a combination of documents from Lists B and C. So, alas, reviewing copies of documents or a virtual examination of I-9 documentation using Skype or other video conferencing technology will not meet the requirements of law and are not a workable solution for employers who hire employees in remote locations.

Does that mean that the employer in my hypothetical has to buy a plane ticket and send its HR Director out to California to complete the I-9 process? The USCIS says the answer is no, but the solution it suggests isn’t ideal. The M-274 Handbook for Employers confirms that an employer can designate an agent to complete the I-9, including a foreman, personnel officer or a notary public acting on the employer’s behalf. If the employer does so, however, the Handbook also makes clear that the designated agent must not only review the new hire’s I-9 documentation, but must also sign Section 2 of the form for the employer. This has created a practical issue when employers have used notaries as their agents in other states. In some cases, notaries have refused to sign the Form I-9 on behalf of the employer, claiming that state regulations prevent them from doing so.

So, what other options are available for employers who hire remote employees? One option may be to consider enrolling in an electronic I-9 program with a service provider that offers a network of designated agents in various localities and can provide I-9 support. If an electronic I-9 program is not right for your business, you can consider asking a business contact in the state where the remote hire is based to act as your agent in reviewing the new employee’s documentation and filling out the Form I-9. Your legal counsel may also have contacts at a local law firm that can assist with the I-9 process.

Maybe someday USCIS will adapt the I-9 process to better meet the needs of an increasingly mobile workplace.  Until then, employers will need to comply with the somewhat old-fashioned requirement that I-9 documentation be reviewed in person.

Thursday, September 5, 2013

Week in Review

This week, Labor Day and National Payroll Week served as good reminders that our post-recession economy is different and the way people work within it is also different. Although the number of jobs has grown, part-time work is becoming the new normal, and virtual work meant that some labored even in the midst of their Labor Day barbecues. National Payroll Week celebrated wage earners and payroll professionals, while polls show that the payroll-to-population employment rate fell in August, and the number of households with union members continues to drop.
This changing nature of the way people work is driven in part by the fast-paced world of technology and the race to keep up with competitors. This week alone Samsung released its new smartwatch, Apple set a release date for its new iPhone, and Microsoft announced plans to release a new Xbox in November. In addition, this week New Jersey passed a law to restrict company access to employee social media, developers are creating “NSA-Proof” private email, and privacy groups are rushing to block new changes to Facebook policies.
Labor Day in the Modern Workplace
New culture of work, both virtual and traditional, on Labor Day 2013 (Denver Post)
U.S. Payroll to Population Rate Drops to 43.7% in August (Gallup)
Is part-time work the new normal? (Detroit Free Press)
Job vacancies soar in Minnesota, but not wage offers (Minneapolis Star Tribune)
Labor Day Weekend Is a Working Vacation for Many (ABC)
It may be Labor Day weekend, but union power is waning (Guardian)
Who's Working on Labor Day? America's Fastest-Growing Jobs (PBS)

Technology and the Workplace
NJ passes a business-friendly workplace social media privacy law (Employment Handbook)
Too Creepy to Win: Employer Access to Employee Email (Delaware Employment Law Blog)
Lawful Employer Investigations via Facebook . . . Sort of (Delaware Employment Law Blog)
How To Delight Customers With Incremental Innovation (Forbes)
An inside look at Google’s data-driven job interview process (WashPost)

Technology and the Law
Privacy Groups Ask F.T.C. to Block Facebook Policy Changes (NYTimes)
Developers Scramble to Build NSA-Proof Email (Wired)
F.T.C. Says Webcam’s Flaw Put Users’ Lives on Display (NYTimes)
Google Sued in Europe-Privacy Test Case (WSJ)
Deal Is Easy Part for Microsoft and Nokia (WSJ)

There's an App for That
Five free music apps to help you find the songs you like (LATimes)
Apple sets September 10 as the day that iPhones get cheap and cheerful (Guardian)
Samsung Unveils Galaxy Gear Smartwatch (WSJ)
Scientists Use Videogames to Improve Older Brains (WSJ)
Your Heartbeat: The Ultimate in Password Protection? (Atlantic)

Wednesday, September 4, 2013

What Makes Employees Feel Valued?

The Labor Day holiday is intended to celebrate the contributions of America’s working class. That turns out to be most of us, given the relative few who are independently wealthy and the decreasing percentage of Americans who are currently unemployed. Perhaps this Labor Day week is also an appropriate time to reflect on what makes workers feel valued, given that those who feel valued are likely to be more productive and to stay in their jobs longer. As noted in the Harvard Business Review “Management Tip of the Day” for August 9, 2013, “When employees feel valued, they are more satisfied, willing to work longer, and motivated to do their best.”

Competitive pay and benefits matter, of course, but are clearly not sufficient. In a recent article from HowStuffWorks titled 10 Ways to Keep Employees Happy, the top three suggestions involved intangibles: building trust, providing consistent feedback, and giving respect. The Houston Chronicle recently reported that multiple forms of recognition, including but not limited to verbal recognition, can cause employees to feel valued and perform their best, but that the recognition needs to be in a form that matters to the worker involved. Not all employees want public praise, just as not all employees want free treats in the lunchroom. Employers should do their best to identify and respond to their employees’ recognition preferences.
Here at The Modern Workplace, we did our own informal survey and got the following responses to the question “What makes you feel valued?”

  • Verbal affirmations.
  • Being told “thank you.”
  • Others’ generosity in helping out and giving support.
  • Being recommended and getting referrals.
  • Having a sense of being part of a work family.
  • Being asked for advice and input.
  • Having and doing good work.
  • Achieving a good outcome.
  • Being paid.
  • Working with nice, respectful clients.
  • Being trusted with responsibility.
  • Feeling included.
  • Feeling that others are interested in your development.
  • Being supported in bad times, both personal and professional.