Thursday, January 30, 2014

Week in Review

As Americans gear up for Super Bowl XLVIII, we’ve gathered some articles below to help you prepare for the big game and to consider the game’s potential impact on the workplace. You can read below about how one employee's team pride led to him being fired and about how big Super Bowl parties on Sunday night might lead to low workplace productivity on Monday. For those of you who haven't been following professional football throughout the season, be sure to check out the Super Bowl talking points below that you can use around the office. We also have all the app links below that you’ll need for the big event (the kind for your phone, not for your stomach).

Technology and the Workplace
What We're Reading: Super Bowl Edition (Washington Workplace Law)
App Smart: Job Hunting (NY Times)
Wearable Technology Is Making a Splash in the Workplace (Inquisitr)
Discovery and Preservation of Social Media Evidence (Delaware Employment Law Blog)
Announcing a layoff on Facebook (Ask A Manager)

Technology and the Law
Will Death Suit Bring Über Big Liability For Uber? (Forbes)
Did Big Internet Companies Handicap Start-Ups in FISA Rule Changes? (NY Times Bits Blog)
Target security breach: Eric Holder vows to find hackers (Washington Post)
Judge removed from divorce case after sending one party a Facebook friend request (ABA Journal)
No Love for Twibel Lawsuit Against Courtney Love (Delaware Employment Law Blog)
9th Circuit Court of Appeals Rules Bloggers Have First Amendment Protection (Shear on Social Media Law)

There's an App for That
Apps to download for the ultimate XLVIII Super Bowl experience (abc Action News)
New App Launched In Time For Super Bowl Lets You Call Out Brands For Sexiest Ads (Forbes)
Fox to stream Super Bowl XLVIII live on website and iOS app (Apple Insider)
Welcome To The Smarter Side of Super Bowl XLVIII (Forbes)
Facebook teams up with Fox on Super Bowl (Reuters)

Tuesday, January 28, 2014

Are you Prepared for A Possible H-1B Lottery?

Last year U.S. Citizenship and Immigration Services (USCIS) received more than 124,000 applications for new H-1B specialty occupation visas for foreign professionals during the first week of April. As a result, USCIS implemented a computer-generated lottery system to allocate the 65,000 regular H-1B visas and the 20,000 additional H-1B visas reserved for foreign nationals with a master’s degree or higher from a U.S. institution. Although there were predictions of high demand in 2013, some employers were not prepared given that the cap had not been reached for many months in the two previous years. Demand this year for H-1Bs is forecasted to be even greater. Accordingly, employers hoping to sponsor foreign nationals for new H-1B visas for employment beginning October 1, 2014, are urged to act quickly in order to file their petitions by April 1, 2014.

Several steps must be completed before an H-1B petition can be filed. First, the employer should work with legal counsel to prepare a detailed job description that fits within the definition of a “specialty occupation.” In addition, if the foreign national was educated abroad or does not have a degree, an expert evaluation must be obtained to confirm that the degree or combination of education and/or experience is equivalent to a U.S. Bachelor’s degree. Employers must also file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), which takes at least seven business days to process. The LCA processing time may also be delayed if the employer’s Federal Employer Identification Number cannot immediately be verified by the DOL. Given the preparation time needed and the likelihood of high demand for H-1B visas this year, employers are strongly encouraged to begin preparing their new H-1B petitions now.
Another takeaway for employers from last year’s H-1B lottery experience is to consider a potential back up plan in advance. In some cases, there may be alternatives to the H-1B that allow for initial or continued work authorization for current or prospective foreign national employees. For example, recent foreign graduates of U.S. institutions may be eligible to apply for 12 months of Optional Practical Training (OPT) work authorization. Foreign graduates with degrees in Science, Technology, Engineering or Mathematics fields may also apply for an additional 17 months of OPT if their employer participates in the E-Verify system. In addition, foreign workers who are nationals of Canada, Mexico, Australia, Singapore, or Chile or have achieved extraordinary accomplishments in their field may be eligible to apply for other types of nonimmigrant visas. There may also be longer term solutions that could lead to work authorization in the future.  In particular, if your company has operations abroad, you could consider sending the foreign national to work in a foreign office for a year, after which he or she may be eligible for an L-1A (executive/manager) or an L-1B ( specialized knowledge) intracompany transfer visa. While it may require creativity and advance planning, these and other possibilities may provide alternatives to the H-1B depending on the circumstances. 

Thursday, January 23, 2014

Week in Review

Anything you say on Facebook can and often will be used against you in a court of law. Technology has not only changed the workplace; it has also changed employment lawsuits. We've provided a link below to an article discussing how data from smartphones and social media can take center stage in a workplace harassment lawsuit and methods for mitigating legal risks. You can also read on below about how electronic metadata drastically impacted a non-compete case. Speaking of technology having a drastic impact, there's also a link below to an app designed to help you fight for immigration reform.
Technology and the Workplace
Smartphones, Social Media and Sexual Harassment (Employment Law Lookout)
How Metadata Changed the Outcome of a Complex Employment Case (L&E Blog)
'Charge rage': Too many electric cars, not enough workplace chargers (San Jose Mercury News)
Study: Millenials prefer workplace setting over telecommuting (KSDK)
Keeping FDA Up-to-Date on Your Drug Company's Social Media Activity (Life Sciences Legal Update)

Technology and the Law
Supreme Court to decide case on police cellphone searches (Washington Post)
Survey: Cloud Technology in Business of Law Poised for Dramatic Adoption (Market Watch)
Judge approves forfeiture of more than 25M in Bitcoins (ABA Journal)
Telephone Consumer Protection Act Issues to Watch in 2014 (Focus on Regulation)
Feds: Thieves with Bluetooth-enabled data skimmers stole over $2 million (ars technica)

There's an App for That
Immigration reform? There's an app for that (CNN Money)
Google developing contact lenses for diabetics to monitor glucose (LA Times)
Hate Parking Tickets? Fixed Fights Them In Court For You (Tech Crunch)
MeMini Is a Wearable Camera That Captures Moments After They Happen (Mashable)
Trove Is a Treasure for News Junkies (NY Times)

Wednesday, January 22, 2014

Equal Coverage Requirements of Affordable Care Act Delayed

Employers are continuing to feel the impact of and to respond to the federal Affordable Care Act. Just today, it was reported that Target Corporation will be no longer offer health insurance benefits to its part-time employees. The company explained that the change was related to the new health care landscape, low enrollment of part-time workers in its health benefits, and the ability of part-time workers to obtain insurance through health care exchanges created under the ACA.   

In other ACA news, the Internal Revenue Service has announced that it will delay enforcement of the ACA’s so-called “non-discrimination” requirements until the IRS drafts and finalizes nondiscrimination regulations. The ACA’s nondiscrimination requirements were supposed to go into effect in 2010, but we’re still awaiting the IRS regulations. When adopted, the IRS regulations will relate to the ACA’s prohibition on employers providing better health care coverage to “highly compensated individuals” such as top executives. Employers that violate the ACA’s nondiscrimination requirements can lose tax benefits that apply to employer-sponsored health insurance.    

The IRS delay in enforcing the ACA’s non-discrimination requirements is one of several recent delays in the implementation of important ACA provisions. In the short-term, the delay will allow employers that offer health benefits through an outside insurer to continue to offer better health benefits to executives and other highly-compensated employees. It’s important to remember, however, that employers with self-insured health plans are subject to long-standing non-discrimination requirements that are unaffected by the ACA or the delay in enforcement of the ACA’s nondiscrimination requirements. 

While not all employers are impacted by these recent ACA developments, the evolving and shifting ACA landscape makes it important for all employers to continue monitoring the ACA’s rollout. In addition to the delayed IRS regulations, we are still awaiting final regulations on other critical ACA provisions and are seeing delays in the implementation of aspects of the ACA. To know how your workplace is affected, it is important to continue to be vigilant in monitoring ACA developments.

Thursday, January 16, 2014

Week in Review

This week's headlines charged employers with preserving and protecting data in the workplace. This advice is timely given that this week is “Tax Identity Theft Awareness Week, a time when employers are reminded to safeguard employee social security numbers to reduce identity theft risks. In other news, we’ve provided links below to the top 10 electronic discovery developments and trends from the past year. At the top of the list are the growth of Bring Your Own Device (BYOD) policies in the workplace and how work-related text messaging is causing courts to require employers to preserve and produce data from employees’ personal mobile devices in litigation. So, if your employee uses the new app at the link below to quit his or her job via text message, don't delete that text!

Technology and the Workplace
Tax identity theft: What your business needs to know (BCP Business Center Blog)
Top 10 e-discovery developments and trends in 2013 (Technology Law Source - Part 1) (Part 2)
Maybe Facebook can't tell you if a candidate is worth hiring, after all (Employer Handbook)
Recipe for Disaster: Who Owns Your Work-Related Social Media Accounts? (Connecticut Employment Law Blog)
Debate: Mobile Recruiting (HR Examiner)

Technology and the Law
Kanye West files lawsuit against digital currency (BBC)
Supreme Court to decide TV-Web broadcast battle (Washington Post)
Yelp ordered to turn over identities of seven authors who wrote alleged fake reviews (ABA Journal)
Iowa Marketing Executive Sues Google Over 'Sexy Executives' Website (ABC News)
FCC lacked authority to impose 'net neutrality' on broadband carriers, federal appeals court rules (ABA Journal)

There's an App for That
Want to quit your job? New app does it for you via text message (Reuters)
Listen to What Your Plants Have to Say (NY Times)
A Clever Google Glass App That Wakes Snoozing Drivers (Wired)
Noted: A Dead-Simple App for Jotting Things Down (Wired)
Digital Coach Perched Right in Your Pocket (NY Times)

Tuesday, January 14, 2014

Hating the “Love Clause”

Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd’s salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that “…so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the president’s residence with any person with whom she has a romantic relation.”

Given the role college and university presidents play in wooing big donors and serving as chief executives of their institutions, it is understandable why regents and trustees would have concerns over maintaining a respectable public image. While these interests certainly make some aspects of presidents’ off-duty conduct fair game, most agree that the so-called "love clause" in Dr. Boyd’s contract is out of bounds. Absent rigging the president’s home with hidden cameras, it is hard to imagine how an employer could prove that its employee is cohabitating with a person with whom he or she is engaged in a romantic relationship. Even more concerning than the difficulty in proving a breach, however, is the likelihood of such contracts running afoul of legal obligations.

In Minnesota, such an agreement would likely violate law prohibiting marital status discrimination. Under the Minnesota Human Rights Act, marital status refers to “whether a person is single, married, remarried, divorced, separated, or a surviving spouse and, in employment cases, includes protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.” By restricting Dr. Boyd’s ability to cohabitate with another person with whom she is romantically involved as a “single person” and permitting her to have such relationships if she is married, Dr. Boyd’s contract appears to discriminate on the basis of her marital status. The contract also seems problematic in that it fails to adequately cover the types of scandalous or immoral conduct the University was likely intending to prohibit. The contract only restricts conduct while she remains single, so presumably if she marries she can cohabitate with whomever she has a romantic relationship, regardless of whether the person is her spouse. In addition to looking silly, the way this provision is drafted makes it all the more likely that it would be deemed to violate marital status discrimination laws.

Employers walk a fine line when taking an interest in employees’ off-duty conduct.  In addition to anti-discrimination laws, there are many other legal protections that can be implicated: lawful consumable products laws protect employees’ right to drink, smoke and imbibe lawful goods; the National Labor Relations Act protects employees’ right to complain about their jobs and engage in concerted activities outside of work; and more and more states are passing laws to keep employees’ social media activities off limits.  Employers should make sure they know these boundaries before making employment decisions based upon non-work-related activities.

Thursday, January 9, 2014

Week in Review

Brrrrrrrrrrrrrrrrr . . . it's cold out there! The recent cold snap that has swept the nation is affecting the workplace and technology. The cold weather serves as an important reminder for employers to have an up-to-date severe weather policy. In addition, before you email your employees from your smartphone at the bus stop to tell them that they don't have the day off work, check out NPR's reminder that your phone doesn't like the cold weather any more than you do. But don't worry; technology won't completely fail you this winter. We have a link to the top winter weather apps. Stay warm.

Technology and the Workplace
It's time to update your severe weather policy (Ohio Employer's Law Blog)
Flexible Work Location for FLSA-Exempt Employees (Employer Handbook)
New Year's Resolution: Social media training for your workforce (Employer Handbook)
Employment Lawyer Predicts the Future (Connecticut Employment Law Blog)
Social Media for Financial Institutions - Final Guidance (Privacy & Security Matters)
Social media misbehavior may (or may not) be enough for termination (Tech for HR)

Technology and the Law
LinkedIn sues hackers, says they created fake accounts to scrape data (ABA Journal)
Federal judge gives up his celebrated blog after story airs criticism (ABA Journal)
Could a Civil War-Era Law Stamp Out Bitcoin? (Wired)
CEO Says BlackBerry Sued Typo Because The Keyboard 'Is Our Identity' (Forbes)
France fines Google over data privacy (Reuters)

There's an App for That
Forget Tweeting The Polar Vortex. Phones Fail In Subzero Temps (NPR)
Fight the Cold with These Five Winter Weather Apps (Time)
Smart Contact Lenses Will Give You Superhuman Vision (Mashable)
Smart Headband Promises Better Dreams and Improved Sleep (Mashable)
CES 2014 features wearable gadgets, next wave of future technology (CBS)

Tuesday, January 7, 2014

Who Cares About Reelection, Could You Fire the Toronto Mayor?

While many Toronto residents spend their time wincing at the infamous antics of their elected (and possibly soon-to-be reelected) mayor, Rob Ford, I’ve been imagining what a Minnesota employer would do if he was its employee – or, worse yet, a supervisory employee - not elected by the people. Are you cringing yet?

“Fire Him!” would likely be a common refrain. But for what exactly? His admitted use of crack cocaine? The death threats? The sexual comments? Knocking down a councilwoman and the viral video aftermath? There seems to be so much to choose from. Even when a termination decision is seemingly obvious, however, employers should still consider whether an employee’s actions are legally protected and navigate those protections carefully.

Let’s start with Mayor Ford’s illegal drug use. Doesn’t admitting illegal cocaine use alone support a termination? Actually – it depends. Under federal and Minnesota employment discrimination laws, current illegal drug use is unprotected but past drug use can be a protected disability. Mayor Ford has admitted past drug use and claims to be under the care of doctors, making it possible he could claim to be disabled if employed in Minnesota. 

In addition, if a Minnesota employer learned of Mayor Ford’s illegal drug use through a drug test, Minnesota’s drug and alcohol testing statute might prohibit his termination. Under Minnesota’s drug testing law, Mayor Ford could not be terminated for a first-time positive test result. Instead, he could only be terminated if he was given and refused the opportunity to participate in an appropriate treatment program or if he later tested positive for drugs following treatment. If Mayor Ford successfully completed treatment, however, his employer could not fire him for his first positive drug test result.

In light of these potential legal protections, I’ll turn to Mayor Ford’s other conduct. For example, what about his sexually offensive comments to reporters about his personal sex life? Some might say those comments were sexually harassing to the reporters. Sexual harassment law, however, may not encompass Mayor Ford’s comments to third party reporters and a small number of comments may not be sufficient to be legally actionable as harassment. 

Nevertheless, there is a good chance a Minnesota employer could still fire Mayor Ford for his sexual comments to reporters, his death threats, his openly mocking Toronto councilmembers, and his conduct in knocking down a councilmember. A public, governmental employer must respect an employee’s First Amendment rights, but private employers don’t have that obligation. Moreover, many of Mayor Ford’s comments – including sexual comments and death threats – are likely not protected First Amendment speech. Certainly, physically plowing down a political representative is not protected speech and is clearly unacceptable, unprotected behavior. In conclusion, then, what would I tell a Minnesota employer that wanted to fire Mayor Ford?  The answer is yes - fire away.

Friday, January 3, 2014

Week in Review

Another new year has arrived.  Perhaps you have promised to make it a year of getting organized, getting fit, or giving more to charity.  On the technology front, social media is promising to make it a year of evolving workplace privacy law.  Legislative bodies, courts, and administrative agencies are expected to consider a number of interesting legal issues, such as employer access to employees' or applicants' social media and email accounts, administrative agencies' access to employers' email servers, and employees' rights to communicate online about their terms and conditions of employment.  Click on the links below to know what to expect in the coming year.  We also have provided links to apps that will help you stay on track with your new year's resolutions.

Happy new year!

Technology and the Workplace
Five Employment-Related Privacy Issues We are Tracking in 2014 (Employment Matters)
Teacher fired over Facebook groping photo could get her job back (Employer Handbook)
So your public relations executive just tweeted a racist joke that went viral . . . (Employer Handbook)
The Risk of Fishing for Support in an Employee Discipline Matter (Delaware Employment Law Blog)
Employers Win Latest Round in Social Media Prize Fight (The Law at Work)

Technology and the Law
District Judge Upholds Government's Right to Search Electronics at Border (NYTimes)
Proposed law in California would mandate smartphone 'kill switch' (ABA Journal)
Ill-timed tweets by prosecutor don't merit reversal, appeals court says (ABA Journal)
NSA's Phone Data Collection Program Lawful, Federal Judge Rules (WSJ)
Negligent Mom's Browser History Admissible (WSJ)

There's an App for That
5 apps for 5 New Year's resolutions (USA Today)
10 Apps to Help Your New Year's Resolutions Stick (Time)
6 Apps That Fit Charity Into Your Daily Routine (Mashable)
Exercise Game Tracks Your Fitness All Day (NYTimes)
10 New Year's tech resolutions (Telegraph)