Thursday, October 31, 2013

Trick or Treat: Tips from Halloween-Themed Lawsuits

It’s Halloween, and we employment lawyers would be remiss if we didn’t comment on the ways that workplace Halloween costumes can sometimes go wrong. The negative flack that celebrity Julianne Hough is receiving in the news for her blackface Halloween costume highlights the reality that, while Halloween revelry at work can be great fun, it can also come with a risk that an employee crosses over a racial, cultural, political, or other line and offends someone.

As such, it is a good idea to be thoughtful about office festivities and costumes. A little time spent on the front end can allow employees to have fun without unwanted consequences. To bring home this point, here’s a sampling of a few real life lawsuits in which employers learned the hard way what doesn’t fly in the office on Halloween:
1.      In a trio of cases - Devane v. Sears Home Improvement Products,Inc., EEOC v. Body Firm Aerobics, Inc., and Perez v. Horizon Lines, Inc.,- employers faced legal claims after employees made inappropriate and sexually harassing comments to other employees in connection with Halloween. Similarly, an employer was sued in Swinney v. Illinois State Police after an employee forwarded an email about sexually‐themed Halloween costumes.
2.      Employers have also faced racial discrimination claims following Halloween.  In Heard v. Board of Trustees, Jackson Comm.Coll., a racial discrimination claim included allegations that an employee was offended when another employee talked about how the employee’s daughter and friend were dressing up for Halloween as Kanye West and Taylor Swift.

3.      Halloween can also bring out religious differences.  In Morales v. PNC Bank., an employee objected to participating in a workplace party for religious reasons, nothing that she didn’t celebrate Halloween or participate in Halloween events. One of the allegations in the employee’s subsequent lawsuit was that she’d been falsely told by a company manager that a Halloween pumpkin carving and costume party was merely “an employee appreciation party and not a Halloween party.”
Again, some thoughtful planning can help you steer clear of such lawsuits. Some steps that an employer might consider include sending a communication to employees ahead of time encouraging tasteful and respectful workplace costumes and sending a worker home if a costume is racially or otherwise inappropriate.
With these tips in hand, have fun out there today!

Thursday, October 24, 2013

Week in Review

The internet can be an invaluable work tool, providing ready access to information and resources essential to getting a job done. The internet can, however, also be a huge distraction, cutting into productivity both at and away from work. For instance, this week a study showed that “[f]or every minute that [we] spend lazing on the computer, Americans spend approximately 16 fewer seconds working, seven fewer seconds sleeping, six fewer seconds traveling, four fewer seconds doing household chores, and three fewer seconds educating themselves.” Spending time on the computer also means less time spent socializing offline. Nevertheless, due to the continued professional benefits of the internet, professional websites like LinkedIn continue to focus on expanding and building mobile access. Elsewhere this week, the European Union considered new data-protection laws and U.S. courts continued to consider the rights of employees who posts comments on Facebook.

Technology and the Workplace
Study: What You Would Be Doing If You Spent Less Time Online (Atlantic)
11th Cir. Upholds Facebook Discipline of Police Officer (Delaware Employment Blog)
Nearly half of employers investigate job applicants online (Employer Handbook)
LinkedIn tool shares user info on iPhone email (CBS)
No, artificial intelligence isn’t going to take all of our jobs (WashPost)

Technology and the Law
Critics condemn new EU data-protection legislation (BBC)
Law firm sued over claimed use of competitor’s name as Google AdWords (ABA)
U.S. proposes minimal corporate cybersecurity standards (Reuters)
Privacy Concerns Nix Sale of Online Dating Site (WSJ)
Senator Raises Questions About Protecting Student Data (NYTimes)

There's an App for That
LinkedIn: Our Future Is Mobile (Mashable)
Pinterest pins down $225 million in funding, valued at $3.8 billion (LATimes)
Microsoft Exec Calls Apple Apps 'Struggling' and 'Lightweight' (Mashable)
Google adds handwriting feature to Gmail, Docs (LATimes)
Facebook launches first video ads within its mobile apps (Guardian)

Tuesday, October 22, 2013

You May Live For The Applause But I Work For Overtime

A settlement in the lawsuit against Lady Gaga by her former personal assistant, Jennifer Olsen, was announced this week, a month before the case was scheduled for trial. Ms. Olsen sued the pop star claiming that she was not exempt from wage and hour laws and entitled to additional compensation for her overtime work. How much overtime? Ms. Olsen claims she was at Lady Gaga’s beck and call 24/7. Her suit alleged that she was often required to sleep in Lady Gaga’s bed so that she could immediately respond to any assignments given throughout the night.

The settlement may be good news to Lady Gaga fans worried about the stress and distraction on their idol, but it is disappointing news to many employment lawyers and human resources professionals. A trial would have involved several interesting issues, including some legal ones.  For one thing, it is not clear whether the personal assistant was a nonexempt employee under wage and hour laws. Depending upon the duties assigned to Ms. Olsen, it is possible that she could have been an “administrative employee” under the Fair Labor Standards Act. Last year, the Fourth Circuit Court of Appeals affirmed dismissal of a claim for overtime by a CEO’s executive assistant in Altemus v. Federal Realty Investment Trust. The employee was deemed to be exempt even though a large percentage of his time was spent doing seemingly non-exempt work like arranging the CEO’s travel and monitoring the CEO’s email communications.

Another interesting issue would have been the amount of overtime Ms. Olsen would receive if she was deemed to be nonexempt. It is hard to believe that she would be entitled to pay for every minute of her employment, but employers who misclassify employees face a real risk of employees over-exaggerating their work time. Because it is the employer’s obligation to keep accurate records of non-exempt employees’ work hours, in cases where the employer fails to do so courts will place the burden of proof on the employer to establish that the employee’s estimate of work hours is inaccurate.

Finally, the trial would have included interesting issues of which on-call periods were compensable. Even if Ms. Olsen was required to be available for work, much of that time may not have been compensable if she was able to still have free time to herself. She alleges, however, that while on tours she was not even given her own hotel room so that she would be immediately available to provide assistance if and when needed. If those allegations were accurate, it is very possible that all of the time she spent waiting to provide assistance should have been treated as time on the clock.

Thursday, October 17, 2013

Week in Review

This week, as we celebrated National Boss Day, many people reflected on their relationship with their boss. Technology can sometimes challenge this relationship, for example, when employees have bosses that love email and refuse to communicate or manage an employee face-to-face. Another highly debated topic is whether bosses and subordinates should “friend” each other on social networking sites. Technology impacts these boss-subordinate relationships, but also the broader relationship between a company and its employees. For instance, recent court cases examined whether an employer has sufficient control over an employee’s work-related emails sent through a personal email account to be obligated to preserve those emails when litigation strikes. Although one court found that the employer did not have possession of the emails in a personal email account, another court found that the employer had a duty to preserve those emails once it had notice of or could reasonably foresee litigation. In addition, both Facebook and Twitter made changes this week that make it more difficult for employees to “hide” online. Facebook eliminated the ability of users to hide themselves from search results, and Twitter enabled users to receive direct messages from anyone, not just followers.

Technology and the Workplace
The Truth About Bad Bosses (WSJ)
Court Finds Duty to Preserve Personal Emails of Employees (Delaware Employment Blog)
20 Twitter Resources for Job Hunters (Mashable)
Social media and the workplace and the lawsuits (Employer Handbook)
A Company's Tweets Can Help Make It Creditworthy (NPR)
Upgrade to the Apple iPhone 5s or 5c If You Travel Overseas (Forbes)

Technology and the Law
Snapchat's unopened messages can be shared with police (NBC)
Facebook Eases Privacy Rules for Teenagers (NYTimes)
Court appoints antitrust monitor in Apple e-book case (LATimes)
Disruptions: At Odds Over Privacy Challenges of Wearable Computing (NYTimes)
Google to put user names, photos, comments in ads (NBC)

There's an App for That
Facebook removes a privacy setting you might have been using (NBC)
Twitter Unveils Option to Receive Direct Messages From Anyone (ABC)
Furor Over Yahoo Mail Changes (NYTimes)
SnapHack app lets users save Snapchat photos without notifying sender (LATimes)
Google Now could be the injection of intelligence smartwatches need (Guardian)

Wednesday, October 16, 2013

Take Care When Succession Planning To Avoid Age Discrimination Claims

I’ve had succession planning on my mind this week following the release of a research poll that indicates that about half of older Americans are delaying retirement plans to work longer. The poll, which was conducted by the Associated Press-NORC Center for Public Affairs Research, indicates that over eighty percent of older Americans plan to work during their retirement years and almost fifty percent expect to delay retirement. Eleven percent of those surveyed indicated they don’t expect to ever retire. These survey results may stem from a number of factors. The recent recession has taken a tough economic toll on our nation, causing some older workers to delay retirement while trying to recover from their losses. In addition, population projections show a marked increase in our nation’s aging population, and older Americans are generally becoming healthier. Faced with the possibility of living longer and in better health, more workers may choose to delay retirement in favor of earning additional income for their later years.

In the face of this fundamental shift in retirement planning, companies need to be more careful than ever to avoid age discrimination claims when conducting succession planning. I’ve seen many a smart business leader embark on succession planning out of a concern about an aging workforce and about potential key employee retirements. While potential retirements are certainly one reason to consider succession planning, age discrimination laws make it risky to make assumptions about an older worker’s potential retirement plans and to focus too narrowly on age when succession planning. Forced retirement is almost always unlawful under age discrimination laws, and it is also unlawful to discriminate against older workers in the terms and conditions of their employment. As such, employers should be thoughtful about how to discuss, plan, and implement succession planning measures. Some practical tips for reducing the risk of an age discrimination claim when succession planning include the following:
  • Companies can reduce legal risks by focusing their succession planning on employees in key positions rather than age. The goal behind succession planning is to plan in advance for and be prepared to quickly address a key employee’s departure to avoid business disruption or loss. This is a neutral concept unrelated to age. Key employees of varying ages may leave a company for a number of reasons apart from retirement, such as to pursue another job, to relocate, to care for an aging parent or ill family member, due to termination by the company, or due to an unexpected disability or death. As such, it makes good business sense to focus succession planning on employees of all ages, which, in turn, reduces the risk of an age discrimination claim.
  • Companies should avoid making age-based stereotypes when succession planning. As demonstrated by the Associated Press-NORC poll, more workers are choosing to work longer, and it dangerous to make assumptions that an older worker is planning to retire or reduce his or her schedule based on age. 
  • In gathering information for succession planning, companies should not focus solely on older workers. If information is sought from employees for succession planning, the company should consider gathering information from a cross-section of employees of different ages and diverse backgrounds.
  • In talking with employees about succession planning, companies should be cautious in asking about potential retirement plans, as this could be interpreted as age-based stereotyping. A safer approach is to ask employees of varying ages open-ended questions about their future plans, such as asking about the employee’s goals and plans for their position in future years and whether they are anticipating any changes in their role or work schedule in future years. If someone volunteers information about retirement plans or otherwise requests a status or schedule change, the company can follow up to get more information and to discuss plans for a smooth and successful transition. The company should still take care, however, not to appear to be suggesting, encouraging or pushing an employee to retire. 
  • Succession planning efforts or activities should not focus on or result in only younger workers being considered for future leadership roles. Instead, the focus should be on training, mentoring, and grooming workers in lower-level positions, regardless of age, for future leadership and higher-level positions in the company. 
  • Companies should take care not to discuss succession planning or to announce new leaders in a way that directly or indirectly suggests that the age of an employee matters. For example, discussing the “next generation” of leaders or talking about new leaders as being “fresh,” “young,” “new blood,” or “energetic,” can cause a perception that age factored into an employment decision.
  • Finally, companies should pay attention to how older workers who might be replaced as part of succession planning are treated during the planning and implementation process. Companies should take care not to engage in any acts that might be perceived as involuntarily pushing an older worker to the side or otherwise treating them differently based on age or any other protected class.

Thursday, October 10, 2013

Week in Review

New federal and state laws are continuing to impact our relationship with technology and online resources.  This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal information, photos, and content deleted from websites. As individuals worry more about their online profile, laws like this permit minors to scrub damaging information from the web before they seek to enter the workforce. Elsewhere this week, Instagram turned three years old, and Samsung unveiled its new curved smartphone.

Technology and the Workplace
Herndon-based Apx Labs turns smart glasses into tools for the workplace (WashPost)
How Not to Work From Home, According to the Giants of Tech (Wired)
Social Advertising Tips for Your Business (Mashable)
Boss Hacks Personal Email Account of Employee (Delaware Employment Blog)
33 Great Apps And Tools For Marketing Professionals (Forbes)

Technology and the Law
Health Exchange Tech Problems Point To A Thornier Issue (NPR)
California law gives teens right to delete web posts (BBC)
No Privacy Claim for Use of Student Facebook Picture (Delaware Employment Blog)
Obama Administration Backs Apple in Patent Dispute with Samsung (WSJ)
LinkedIn Search In Spotlight At Bank of America Trial (WSJ)

There's an App for That
Three things we want from Instagram on its 3rd birthday (LATimes)
Samsung unveils first curved smartphone (CNN)
AppSeed Turns Your Sketches Into App Prototypes (Mashable)
Outsource Your Thank You Notes to a Robot (ABC)
Behold (And Maybe Fear) The New Self-Updating Online Address Book (Forbes)

Thursday, October 3, 2013

Week in Review

This week the government shutdown dominated the news. Many people were told not to come to work, national parks, monuments, and recreational areas were closed, and access to some government services was limited or eliminated completely. In the midst of the shutdown, people have expressed their outrage on Twitter, while posts by various members of Congress on Facebook have received thousands of likes and comments. Even NASA took to Twitter to announce that it would no longer be able to tweet and then promptly suspended its account. All this activity on Twitter took place as the company moves toward its public stock offering in the coming days. Also this week, new technology is helping with receptionist duties, and lawyers are finding new questions to ask about social media passwords during the discovery process.

Technology and the Workplace
Is Florida too tough on lawyers using LinkedIn and Twitter? (ABA)
Why Employers Should Love, Not Loathe, Social Media (Delaware Employment)
The Switchboard: Five tech policy stories you need to read today (WashPost)
25 Ways To Continue Working When You Lose Your Internet Connection (Forbes)
MyTime Wants To Replace Your Receptionist (Forbes)

Technology and the Law
Discovery of Social-Media Passwords (Delaware Employment)
Peek-a-Boo, I See You: Juror Contact Via LinkedIn (Delaware Employment)
LinkedIn Search In Spotlight At Bank of America Trial (WSJ)
Airbnb wins legal victory in New York City (CNN)
McAfee Dismisses Company Founder Anti-NSA D-Central Device (Forbes)

There's an App for That
Track Your Amtrak Train in Real Time on Google Maps (Mashable)
The three things to watch for in Twitter's IPO filing this week (LATimes)
Post-It Notes go digital with Evernote (CNN)
New App Lets You Settle Check Before Sitting Down (Forbes)
Government shutdown: Voters tweet to Congress to stop being 'stupid' (Politico)

Tuesday, October 1, 2013

Use Good Sense to Avoid Making Bad Law

Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.

 I recently read one of those decisions. In my frustration over the avoidable bad facts of the case, I had to draft this post. The decision, Lazette v. Kulmatycki, was issued by a federal district court in Ohio in June. The plaintiff, Sandi Lazette, is a former Verizon employee who had been given a company-issued blackberry phone while employed. When Ms. Lazette left Verizon, she returned the blackberry to Verizon and thought that she had deleted her personal email account from the phone. About eighteen months later, however, Ms. Lazette learned that she had not deleted her personal email account from the phone and that her former supervisor had been accessing her personal emails and sharing information from the emails with others. Not surprisingly, Ms. Lazette was upset, and she sued the supervisor and Verizon, arguing that Verizon was liable for the supervisor’s conduct. Ms. Lazette alleged invasion of privacy, infliction of emotional distress, and a violation of a number of federal and state electronic communication laws, including the Store Communications Act and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Verizon unsuccessfully attempted to get the case dismissed, but the federal court denied the motion and the court’s ruling indicates a real possibility that Verizon and Ms. Lazette’s supervisor could be found liable on at least some of Ms. Lazette’s claims.

The federal court’s ruling is full of intricacies about electronic communication laws, but I believe the primary take-away from the case is that company managers need to exercise better judgment and avoid creating the type of bad facts that lead to bad law. When I discussed the Lazette ruling with one of my partners who specializes in privacy issues, he noted: “Tell people not to do stupid things.”  With that in mind, here’s a list of some smart things that companies can do in connection with technology to try to avoid legal risks:

1.   Be thoughtful about whether you want to provide employees with a company purchased device or let employees use their own personal devices for work.

2.   If you provide a company-owned device, be thoughtful about whether you want to let employees use the device for any personal communications.

3.   Whatever devices you let employee use, think ahead of time about what data may be contained on the device, how you will obtain business data back if an employee leaves employment, and how you might segregate any personal employee data that may be on a device from business data.

4.   Have carefully drafted written policies or user agreements in place with employees to protect company data, to ensure that company data is returned when employees leave employment, and to address when and how any arguably “private” data of your employees on a device may be accessed.

5.   The legal landscape related to technology in the workplace is unsettled and evolving. Many of the laws being applied by courts were written long before the technology at issue was developed. As such, it is smart to tread carefully and to check with legal counsel before accessing any personal emails or other arguably “private” data of an employee to ensure you have legal grounds to access the data and that you access the data in a lawful way.

6.   Train your managers on the company’s policies and practices related to technology. Make sure that managers know that they must consult with upper management (and possibly the company’s attorney) before accessing data on an employee’s computer or other technology devices and before sharing any accessed information with others.

Following these tips and exercising good sense can go a long way in reducing legal disputes and legal risks related to workplace technology.