Wednesday, November 27, 2013

Week in Review

Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the office on mobile devices. 
 
On a more positive note, during the busiest travel week of the year, airlines and travel apps are making travel more convenient. Multiple airlines now allow the use of electronics during take-off and landing following the Federal Aviation Administration’s revision of its rules earlier this month. Meanwhile, the Los Alamos National Laboratory announced a breakthrough in screening liquids at airport security, which could lead to additional regulatory changes. We also have links below  to apps that will make your holiday travel a bit smoother. Fly, drive, and surf safely.

Technology and the Workplace
Some employers use Facebook to discriminate against job applicants, study suggests (ABA Journal) (WSJ)
How Employers Can Deal with the Most Outrageous Excuses for FMLA Leave (FMLA Insights)
Risk not so remote: overtime for working on mobile devices (Technology for HR)
"My Employee is on Facebook Four Hours a Day. What Do I Do?" (Connecticut Employment Law Blog)
Massachusetts Judge Rules that Updating LinkedIn Does Not Constitute Solicitation (Trading Secrets)

Technology and the Law
Embracing big brother: How facial recognition could help fight crime (CNN)
Microsoft blocks censorship of Skype in China: advocacy group (NBC)
Dangerous or harmless? New technology could alter airport security rules on liquids (NBC)
The Airlines That Let You Use Electronics During Take-Off and Landing (Forbes)
Jury Tells Samsung to Pay Apple $290 Million (NY Times)
Online Health Law Sign-Up Is Delayed for Small Business (NY Times)

There's an App for That
Tech toys and tools ease holiday travel (USA Today)
Google maps airports, train and subway stations with Street View update (Computerworld)
5 Best Business Travel Apps of 2013 (Forbes)
Hassled by TSA? App lets you file a complaint on the spot (CNBC)
HelloWallet: An Easier Way to Save Money (Mashable)
Better Than a Bic? Guide to Digital Pens (abc)

Thursday, November 21, 2013

Week in Review

As turkeys and pumpkin pie ingredients fill grocery carts across America, employee privacy issues fill the workplace.  A recent survey shows that younger employees, ages 18 to 25, are more concerned about their privacy in the workplace than their older counterparts.  Meanwhile, some employers are beginning to use surveillance cameras in the workplace to improve safety and efficiency, the way coaches use game film to improve their sports teams’ performance.  But, back to Thanksgiving.  In the holiday spirit, we’re providing you information about apps to help you stuff your turkey and then, once you're stuffed, to get the best deals on your holiday shopping.

Technology and the Workplace
NLRB ok's firing of two employees who trashed their company on Facebook (The Employer Handbook)
US Army to Track Employees' Web Activity to Thwart Future Snowdens (Mashable)
What the Internet Of Things Will Bring to the Workplace (Wired)
Is 'Big Brother' Watching You? (Bloomberg)
The Human Hack: How to Fight an Internet Risk Technology Can't Fix (Bloomberg)
Shocker: Young employees are more concerned about online privacy than you thought (Venture Beat)

Technology and the Law
'Granny cam' law aimed at curbing nursing-home abuse takes effect in Oklahoma (ABA Journal)
Social media maven sues TV network, says it stole 6.78M Facebook 'likes' from her page on 'The Game' (ABA Journal)
Phone Law Makes Deficit Cuts A Little Harder (WSJ)
Law limiting autodial cellphone calls spurs 'litigation boom' (ABA Journal)
Appeals Court Revives Apple Bid for Ban on Samsung Devices (WSJ)
'Kill switch' to prevent phone theft rejected in US (Telegraph)
Supreme Court Rejects NSA Phone Surveillance Challenge (Mashable)

There's an App for That
7 Deal Aggregators for Holiday Shoppers (Mashable)
7 Thanksgiving Apps for the Ultimate Holiday Feast (abc)
Top 10 Apps To Get You Through A Successful Thanksgiving Holiday (Forbes)
The 8 best apps for Black Friday, Cyber Monday, and Christmas shopping (Venture Beat)
7 Apps That Will Make Holiday Shopping A Breeze (Business Insider)

Tuesday, November 19, 2013

Employer-Selected Payroll Cards Cannot Be The Sole Method Of Paying Wages

Many employers have implemented direct deposit payroll systems to reduce the transaction costs associated with paper payroll checks and the risks of the loss or theft of paper checks. A payroll card is an increasingly popular method used by employers to provide for the direct deposit of wages, particularly for employees without a deposit account at a financial institution. A payroll card is a debit or prepaid card onto which the employer loads an employee’s wages. The employee may then access those wages through withdrawals of cash at an ATM machine or by making purchases using the payroll card as a payment card.

Employers should be aware that payroll cards are subject to federal regulation under the Electronic Funds Transfer Act (EFTA) and Regulation E, which implements the EFTA.  Regulation E, among other things, requires that the employee receive certain disclosures concerning the fees associated with the payroll card, places limitations on the employee’s liability for unauthorized transfers using the payroll card, and provides error resolution procedures relating to the payroll card.

In addition, the Consumer Financial Protection Board (the “CFPB”) recently issued a bulletin instructing employers that Regulation E prohibits an employer from mandating that its employees receive their wages only on a payroll card selected by the employer. The CFPB’s bulletin makes clear that the employer may require employees who do elect to receive their wages on a payroll card to use only an employer-selected card, but the employer must also offer its employees other options for receiving their wages, such as by direct deposit to a deposit account at the employee’s financial institution or in the form of a check or cash.

The CFPB was formed in 2010 and has become increasingly active in enforcing consumer finance laws and regulations. The CFPB has now been authorized to enforce the EFTA and Regulation E against employers that issue payroll cards to pay wages. To avoid being subject to CFPB enforcement action, employers should ensure that, if they use payroll cards for the payment of wages, the payroll cards are one of several payment options available to employees and that the terms that apply to the payroll cards are compliant with the EFTA and Regulation E.

In addition, an employer needs to be sure that its wage payment methods and any payroll cards used to pay wages comply with applicable state law. The EFTA and Regulation E permit states to adopt laws that provide for greater protection to employees than the EFTA and Regulation E. Minnesota, for example, allows the use of payroll cards as a wage payment option, but imposes requirements similar to Regulation E on the terms applicable to payroll cards. In addition, Minnesota law does not permit an employer to mandate that employees accept wage payment by direct deposit, but allows employers to provide direct deposit as a payment option.
 
A post by Phil Bohl, Guest Blogger

Friday, November 15, 2013

Week in Review

This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance.  The product includes two data folders - one for business data and one for personal data – so that businesses and workers have the ability to segregate digital work and personal data.  The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators.  Meanwhile, technology continues to cause problems in the courtroom as social media sites are used to intimidate witnesses in criminal trials.

Technology and the Workplace
Another Facebook Firing Is Upheld (Delaware Employment Law Blog)
Dropbox Is All Business on the Same Day Amazon Announces Competing Product (Forbes(LA Times
Microsoft Abolishes Employee Evaluation System (NYTimes)
"Drug-free Workplace Policy Builder" from the Department of Labor (Employer Handbook)

Technology and the Law
Airbnb Looks To Rally Support as Regulators Scrutinize Business (LA Times)
Cybersecurity Legislation Gets Push from Financial Firms (WSJ)
Teen Accused of Using Twitter and Instagram to Intimidate Witnesses (WSJ)
Violent Crimes Witnesses Targeted on Instagram (NBC)
Apple, Samsung Deliver Opening Statements in Patent Retrial (LA Times)

There's an App for That
6 Ways to Boost Productivity with iCloud (Mashable)
Twitter Lets You Organize Tweets into Custom Timelines (CBS)
Airbnb Launches New Apps Streamlined for Hosts (Mashable)
Amazon's New AppStream Service (TechCrunch)
New Platform Transforms Excel Spreadsheets into Working Web Apps in Minutes, Automatically (Venture Beat)

Tuesday, November 12, 2013

Senate Votes to END Discrimination on the Basis of Sexual Orientation and Gender Identity

Last Thursday, November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32. Similar to existing federal nondiscrimination laws, ENDA would be enforced by the EEOC and would prohibit most employers with 15 or more employees and labor organizations from taking adverse employment action or treating employees differently because of their actual or perceived sexual orientation or gender identity. Although this is a significant step forward for this bill, ENDA still faces tough opposition in the GOP-led House of Representatives, where House Speaker John Boehner has reportedly said that he thinks the bill is unnecessary and will result in a wave of frivolous lawsuits against employers.

Despite ENDA’s uncertain future, the District of Columbia and 17 states, including Minnesota, have already passed laws prohibiting discrimination on the basis of sexual orientation and gender identity and an additional 4 states prohibit discrimination based on sexual orientation alone. Accordingly, businesses that operate in states that currently recognize sexual orientation and gender identity as a protected class should be sure that their policies and practices comply with state and local laws. In addition, as we previously addressed, based on two recent U.S. Supreme Court decisions, all employers must ensure that their fringe and health benefits policies and leave policies treat legally married same sex couples equally.

Monday, November 11, 2013

Week in Review


From communication methods to office space, technology continues to affect workplace norms. During the week of November 4th, for instance, the U.S. Supreme Court heard oral arguments in a case involving the line between technological gear and clothing in the workplace. In the case, steelworkers are seeking to be paid for the time spent putting on flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. Under the federal wage and hour law, an employer must pay employees when they engage in a principal activity, including putting on safety gear. However, an employer does not have to compensate the employee for changing clothes. As such, the Supreme Court must resolve whether everything being worn by the steelworkers is clothing or if it is technology-enhanced work gear. Elsewhere this week, Facebook announced a makeover of the “like” button and a French court ordered Google to remove certain graphic images of a Formula One car racing chief from its search results.

Technology and the Workplace
Oops! My Bad! Facebook Firing Based on Mistake (Delaware Employment Blog)
When The Workspace Is Mobile, On-Demand And All About Networking (Forbes)
Did we just witness our first firing over Healthcare.gov? (WashPost)
10 Incredibly Simple Things You Can Do To Protect Your Privacy (Forbes)
U.K. retailer to scan faces for targeted marketing (CBS)

Technology and the Law
'What Are Clothes?' Asks Most Delightful Supreme Court Argument in History (Atlantic)
New Patent Lets Apple Build Fingerprint Scanners in More Devices (Mashable)
Google Is Ordered to Block Images in Privacy Case (NYTimes)
Apple discloses government data requests -- what little it can (LATimes)
Google engineer accuses NSA and GCHQ of subverting 'judicial process' (Guardian)

There's an App for That
The Thumb Is Gone: Facebook Like Button Gets a Makeover (Mashable)
Google unveils Helpouts, new how-to live video chat service (LATimes)
Google Maps Update Brings Street View Enhancements and Pegman (Mashable)
It was inevitable: Instagram begins displaying ads, more on the way (LATimes)
Twitter news junkies skew young, educated (CNN)

Wednesday, November 6, 2013

Labor Board Poised to Enable Union Organizing of Faculty, Workforce at Private Religious Schools


The National Labor Relations Board (NLRB) appears ready to extend its jurisdiction over certain private and religious schools that were previously thought exempt from the NLRB’s reach. If it does assert jurisdiction in these cases, the NLRB will act to protect union efforts to organize the schools’ faculty and other workforces. And just as significantly, an assertion of NLRB jurisdiction over these schools will clearly usher in the potential for direct NLRB involvement in deciding school policies.

The NLRB has several cases involving religious schools lined up for review, the earliest of which has been awaiting decision since 2011. These include cases involving Manhattan College, St. Xavier University, Duquesne University of the Holy Spirit and Islamic Saudi Academy. In all of these, unionization of the workforce, faculty and/or otherwise, is immediately at stake. The NLRB’s retention of the cases for review points to the likelihood of its opening the door to union organizing at private and religious schools at all levels, from primary through graduate schools. Of course, this would mean major potential changes in the labor relations and operations of such schools. NLRB review is expected to happen sooner rather than later now that the NLRB has a full complement of five confirmed members as well as a confirmed General Counsel.  
The U.S. Supreme Court ruled in 1979 that the NLRB could not assert jurisdiction over two Catholic high schools in Chicago because to do so would violate the First Amendment by excessively entangling the NLRB in religious affairs. In response to that case and to cases handed down from the District of Columbia Court of Appeals, the NLRB has adopted a test for deciding whether it may assert jurisdiction over a particular private school without running afoul of the U.S. Constitution. With the cases it has on tap for its newly confirmed majority of Democratically-appointed board members, the NLRB is strongly positioned to either directly reject its previous test for exercising jurisdiction or to apply it in a very much narrowed way, such that it will assert jurisdiction over, and afford collective bargaining rights to faculty and workers at, more religious and religion-affiliated schools than ever before.
If the Board asserts jurisdiction over these schools and their workforces then vote in favor of unionization, school management will be required to collectively bargain with faculty, and potentially other employees, over the basic terms and conditions of employment. And even if there is never a successful unionization effort at the schools, they will be under the federal labor law and will have to deal with the NLRB’s well-known and extensive efforts to affect all manner of policies in the name of protecting workers’ rights to join together in advocacy against their employer.  
The NLRB also has on its agenda for review cases in which it has received friend-of-the court briefing on questions relating to the status of graduate assistants and faculty under the federal labor law. Combined with the cases involving religious schools, these indicate powerful winds blowing at the NLRB that could substantially affect labor relations at many private and religious schools, including institutions of higher education. Private schools with religious affiliation and institutions of higher education that have an interest in avoiding unionization and NLRB jurisdiction over their workforce relations should watch here for developments and further comment.

Friday, November 1, 2013

Week in Review

In the last few years, driving safety initiatives have focused on the dangers of texting while driving. With the rapid evolution of technology, however, new dangers seem to be emerging all the time. Someone received a citation for driving while wearing Google glasses. It’s anyone’s guess what may be next.  Twitter was also front and center this week. The company introduced a new photo preview in its Twitter feeds, Starbucks created gift cards that can be sent via Twitter, and two companies sued Twitter for over $100 million dollars for allegedly hiring them under false pretenses to promote the sale of Twitter stock.

Technology and the Workplace
Facebook photo gets female employee fired  (Employer Handbook)
Online Reputation: New Methods Emerge For Quashing Fake, Defamatory Reviews (Forbes)
Your Employees Are (Still) Stealing Your Data (Delaware Employment)
7 Interactive Resumes That Shame Your Paper Version (Mashable)
Hired.com Has Built What Every Tech Company Wants: A Pipeline Of Top Talent (Forbes)

Technology and the Law
Wearing Google Glass and Driving: The Next Traffic Violation? (WSJ)
Twitter sued over private stock sale prior to IPO (NBC)
Facebook Post Leads to Police Complaint, Leads to Termination (Delaware Employment)
Google and Yahoo furious over reports that NSA secretly intercepts data links (Guardian)
Adobe: Hacker attack much bigger than previously disclosed (NBC)

There's an App for That
How to Turn Off Twitter's New Photo Preview Feature (Mashable)
Starbucks offers Twitter gift cards (CNN)
The Long List Of Health Apps Features Few Clear Winners (NPR)
Google Plus Aims to Become a Photo Storage and Editing Hub (NYTimes)
Seecrypt encrypted messaging app coming to BlackBerry, Windows Phone (LATimes)