Thursday, February 27, 2014

Social Media Job Updates: The “Footprints in the Snow” Showing Customer Solicitation?

In this era of hyper self-promotion and cyber networking, through the wonders of social media, former employees are commonly creating some of the most incriminating evidence establishing their violation of non-compete and non-solicitation agreements. When employees switch jobs, they now frequently broadcast that changed status to all of their contacts through social media platforms, such as LinkedIn and Facebook. Among those contacts, however, may be a significant number of customers or clients of their now former employer. If the employees previously signed employment agreements containing non-compete and/or non-solicitation provisions, these social media announcement blasts may be unlawful and land the employees into some hot water. Or is this just harmless social chitchat?

This issue is yet another one where employers lack a clear and consistent answer in the eyes of the law. Courts around the country have looked differently on this question, with some equating this activity to be the cyber equivalent of an employee stealing his employer-created rolodex (if you are too young to be familiar with this term, please Google “rolodex”). Other judges, however, have seen this action as allowable and harmless. For example, a couple of fairly recent cases coming out of courts in Massachusetts concluded that this type of electronic networking was fair game for employees – even those who had signed enforceable non-compete and non-solicitation agreements (beware that not all states allow such agreements). 
 
Ultimately, the answer as to whether restrictive promises in an employment agreement may effectively limit social media activity by a former employee will often times come down to – as with most questions about employment contracts – the actual wording of the employment agreement at issue. So, this is yet another reminder that if an employment agreement, including non-compete, non-solicitation, and/or confidentiality agreements, is deemed worth having by an employer, it is worth putting some careful thought into how it is written. As always, the more specific, the better. 

An additional take-away here for employers is to underscore the importance of policing the important restrictions you have decided are worth including in your employment agreements. It is pretty easy these days to locate this type of social media activity by your former employees and to thus monitor, to some degree, their contact with your customers. If that social media activity crosses the line, swift legal action should be considered. Employers should also give some thought as to how they want their employees to promote their work experience out in the cyber-world and consider adopting employment policies on this topic. That social media “advertising,” after all, also reflects on your company.

Week in Review


Facebook, iMessages, WhatsApp, Snapchat, Twitter, Instagram, Telegram, Confide, MessageMe, Popcorn, Glide, Tango, Viber, Whisper. . . .  According to a recent post on the New York Times Bits blog, these are just some of the many different ways to message someone from your smartphone. So, what does this mean for employers? Among other things, it's probably time to update your technology and social media policy. Yes, again. With all of these mobile methods of communication, employers need to be aware that company information is likely traveling outside of old communication methods and beyond existing controls, and they need to adopt effective practices to protect data. Speaking of protecting your information, the HR Examiner post below provides valuable information about employees who might try to “jailbreak” their mobile devices. Also, before you react to all these technology complications by limiting technology and requiring employees to handwrite messages, check out the post below that suggests employers encourage their employees to access social media on their phones during the workday as a means of boosting morale.

Technology and the Workplace
Got a "Secret"? Firewalls Are Not Stopping Spread Of Social Media (Connecticut Employment Law Blog)
Employees who social network at work for 20 minutes are happier -- and no less productive (Employer Handbook)
Don't Let Jailbreaking Escape Your BYOD Policy (HR Examiner)
Mind your internal emails to avoid discrimination issues (Ohio Employer's Law Blog)
Why we put plaintiffs to their proof (Ohio Employer's Law Blog)

Technology and the Law
In Apple's healthcare play, will BYOD = Bring Your Own Data? (Venture Beat)
Buying a gun on Facebook takes 15 minutes (Venture Beat)
Will the Supreme Court save us from software patents? (Washington Post)
A Smart Wallet (MoFo Tech)
A Guide to the FDA's Proposed Social Media Guidance (Health Law & Policy Matters)

There's an App for That
The Messaging App Wars Are Just Getting Started (NY Times)
Disney launches cloud movie service for mobile, online viewing (Reuters)
Finding the Right App to Unlock Those Creative Juices (NY Times)
Samsung launches Galaxy S5 smartphone (CNN)
First Image Recognition App Coming Soon To Google Glass (Forbes)

Friday, February 21, 2014

Week in Review

R u liable 4 your employee's txt msg?  In some situations, the answer may be “yes.” Two courts reviewed employee texting issues this week. The first court reviewed whether an employer can be liable for an employee's unauthorized disclosure of confidential health information via text message.  The second court addressed whether a text message to a supervisor can qualify as a request for leave under the Family Medical Leave Act. These cases and the other articles linked below provide valuable insights for employers in determining best practices related to workplace technology.

Technology and the Workplace
Employee's Unauthorized Texting of Confidential Health Information May Impose Employer Liability (Workplace Privacy Report)
What Do You Mean My Text Message To My Supervisor Doesn't Qualify as an FMLA Request? (Employment Law Lookout)
Delaware Supreme Court Rules On Admissibility Of Facebook Evidence (Delaware Employment Law Blog)
Florida bill to ban employer demands for social media passwords is amended to allow limited access (ABA Journal)
Is there such a thing as online picket lines? Not according to the NLRB (Ohio Employer Law Blog)
These 6 Technologies Will Make or Break Every Information-Intensive Company -- Including Yours (Forbes)

Technology and the Law
Scrutiny in California for Software in Schools (NY Times)
Oklahoma Makes Its Digital Decisions The Official Versions (3 Geeks & a Law Blog)
Cops need a warrant to track cellphone location data, a second state high court says (ABA Journal)
Federal Judge Shuts Down Aereo Service In Salt Lake City And Utah With Preliminary Injunction (Tech Crunch)
Executive Branch acts on cybersecurity - what you need to know about this groundbreaking effort (DLA Piper)

There's an App for That
Some Bot to Watch Over Me (NY Times)
These Apps Are Made for Walking (NY Times)
4 Free WhatsApp Alternatives (Mashable)
A New Android App Called Glove Will Tell You What Carrier Is Best For You (Tech Crunch)
New app 'Selfie360' takes 3D photos (Business Today)

Wednesday, February 19, 2014

“Boys Will be Boys” is Out of Bounds in Any Workplace – Even the NFL

I have not followed NFL football for many years, but the recent NFL report about the Miami Dolphins definitely caught my attention. The report, prepared for the NFL by a New York law firm, concluded that Richie Incognito and other Miami Dolphin players inappropriately bullied and harassed offensive lineman Jonathan Martin through improper physical touching and by persistently taunting him with sexually explicit remarks about his mother and sister, and racist and homophobic slurs. Martin abruptly left the Miami Dolphins in 2013.

Unfortunately, the behavior described in the NFL report is not uncommon. Psychologists will tell you that many people harass others for personal power reasons. The harasser often feels more important or virile by seeking to embarrass or intimidate the target and decrease the target’s power.

So, I’m not surprised to hear of bad behavior by NFL players, but I am surprised by the various reactions I’ve heard to the NFL report.  I’ve heard people react by saying:  “Well, boys will be boys” or “This is football, that’s how people talk to each other.” In fact, though, these reactions run counter to our nation’s laws. The laws regarding sexual harassment apply to all workplaces and all workplace settings – even the NFL. In addition, both women and men are protected by the law – even male NFL football players who may not fit the stereotypical profile of a likely harassment target. Apart from the law, there are business reasons not to tolerate the behavior described in the NFL report. Research shows that workplaces in which employees are bullied or harassed are less productive and less successful.

I do a lot of anti-discrimination and anti-harassment training for management teams. Most of our discussion is focused on how to prevent harassment and offensive behaviors in the workplace. In addition, I often ask the participants to complete a quiz designed to find out how much they know about harassment law. One question asks:  “True or False – Men in male-dominated workplaces usually have to change their behavior when a woman begins working there?” The answer, of course, is “false,” because harassment and offensive, off-color behavior is not appropriate in the workplace regardless of the gender of a company’s employees. On occasion, though, training participants think I’ve asked a trick question and then complain that our harassment laws mean they cannot have fun in the workplace.

This is not a trick question – and we can have fun, just not at the expense of others. We may make mistakes in our interactions with people in our workplaces, but the best way to comply with our laws and enjoy our workplaces is to try to treat everyone with dignity and respect. With that as our mantra, we will not only comply with the law but have happier and more productive workplaces. I cannot help but think that if the Miami Dolphins had used that mantra, they may have had a better season.

Friday, February 14, 2014

Week in Review

The flowers and chocolates that will be delivered to employee desks this week for Valentine's Day are a great reminder for employers to think about the best practices for approaching workplace romances. For more information on that front, read on below.  Also, if this post is a reminder that you are behind on your Valentine's plans, check out the apps below for some ideas.

Meanwhile, love between lawmakers and technology is not in the air in Washington. A proposed bill to ban in-flight phone calls passed a committee vote this week and will now head to the House floor. In other news, a U.S. Senator is putting pressure on automakers and technology companies to do more to reduce driver distractions caused by in-vehicle use of mobile phones and other internet-connected devices.

Technology and the Workplace
How Employers Stop the Heartburn of Workplace Romances and Avoid Litigation (Employer Law Report)
OSHA Extends a Helping (Electronic) Hand to Health Care Facilities (Labor & Employment Law Perspectives)
Demoted for Posting Picture of Confederate Flag on Facebook Page (Delaware Employment Law Blog)
Revelations by AOL Boss Raise Fears Over Privacy (NY Times)
Pass Along to Your Employees: Passwords to Avoid (HR Daily Advisor)

Technology and the Law
Estate of James Dean sues Twitter and fan over @JamesDean account (ABA Journal)
One state considers replacing more court reporters with digital recorders (ABA Journal)
Maine judge: Cellphone company erred in turning over text messages in divorce case (Associated Press)
A bill to ban in-flight calls just cleared a key House committee vote (Washington Post)
In-Car Technology Law Vowed by U.S. Senator Unless Risks Curbed (Bloomberg)

There's an App for That
12 Apps to Make This Valentine's Day Your Best One Yet (Mashable)
11 Valentine's Day Gifts for Your Techie True Love (Mashable)
App Smart: Finding Love (NY Times)
Too late to say 'I love you' for Valentine's Day? New apps rush in (Reuters)
Social Networks Just for Two (WSJ)

Wednesday, February 12, 2014

Tick Tock: Don't Back Off on Tracking Employee's Working Time

The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Act’s employer mandate. (But beware: You can’t lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.

While employers covered by this extension may be breathing a sigh of relief, they shouldn’t forestall putting in place one of the key action items for ACA compliance – the careful tracking of employees’ working hours. The ACA has two requirements that necessitate tracking hours:  (1) to determine whether an employer is subject to the coverage mandate; and (2) if so, to determine which employees have to be offered coverage:
·        Are You Subject to the Mandate?  Whenever this requirement kicks in for your company, the ACA mandates that an employer with an average of 50 or more full-time employees per month provide health insurance to employees working more than 30 hours per week. Under the mandate, employers can’t just count regular full-time equivalent employees (FTEs) to figure out if they’re covered by the ACA. Instead, they have to consider the number of employees who, when their hours are combined, add up to an FTE. To determine the number of its FTEs under the ACA, an employer has to consider: (1) the number of full-time employees (meaning employees who work more than 30 hours per week); and (2) the number of hours worked per month by employees who work fewer than 130 hours per month, divided by 120. The number of FTEs of the employer is the sum of these two groups of employees.

·        Who Do You Have to Cover?  Employees who work 30 hours a week or more, on average, have to be offered coverage under the mandate. There are detailed rules about crediting part-time, variable-hour, and seasonal employees for their time to determine whether they get coverage.
To determine whether you have a mandate and who is covered by the mandate, you have to know how many hours employees are working per month and you need to know this before your compliance deadline kicks in. So, that means you can’t wait until 2016 to begin tracking hours and determining your ACA coverage obligations.
This may seem pretty basic, but many companies, especially smaller companies who may just bump up against 50 FTEs, aren’t always careful about tracking working time. This is now necessary in light of the ACA. In addition, there are other potential obligations to track working time.  Here are a few:
·        When a non-exempt employee claims they’re not getting paid enough overtime.  Wage and hour laws require time records for non-exempt employees. In addition, when a non-exempt employee claims they are owed overtime pay, the burden is on the employer to show compliance with the law. It’s difficult to show that you’re paying an employee appropriately if you don’t know or can’t document how much they’re working.  Of course, the employee has to accurately report his or her working time, but employers should have—and follow—policies that demand accurate time reporting.   You should also manage supervisors and managers who inappropriately expect employees to work off the clock or unilaterally alter employee time records.

·        When the Department of Labor comes calling.   You’ll want written time records for non-exempt employees if either the state or federal Department of Labor comes knocking.  Certain industries are at particular risk for Department of Labor audits, including industries that customarily utilize alternative pay methods, like pay for piece work, Belo plans, or similar arrangements that calculate pay for non-exempt employees based on something other than (or in addition to) the number of hours worked.

·        Determining FMLA eligibility.  Employees may be eligible for up to 12 weeks of protected leave under the federal Family and Medical Leave Act (FMLA) if they have work for a covered employer for 12 months and worked at least 1,250 hours in the previous 12 month period.  Tracking work time is necessary to figure out whether an employee has put in the requisite time to be FMLA eligible, but it is also needed to determine the amount of an employee’s protected leave entitlement.  “Twelve weeks” of FMLA leave for an employee who is less than full-time is based on their typical part-time schedule and is different than the full 12 weeks of leave available to a full-time employee.

·        Tracking worker productivity. Another reason to track non-exempt employee time is to measure productivity.  Are employees showing up on time and getting the job done while at work?  Or, are there folks who incur a lot of overtime, because they’re not efficient during the work day?  Do you have employees who are working off the clock without reporting their hours?  The answers to these questions may be found in accurate time recording and tracking.

Thursday, February 6, 2014

A New Hurdle For Higher Education: College Football Players Huddle Up for Union Organizing


Last week, the Northwestern University football team shook up the playbook by taking the unprecedented step of petitioning the National Labor Relations Board for a union election. The result – to be determined – will have a significant impact on the relationship between higher education institutions and their student-athletes, as well as potentially many other students who receive aid in consideration of services performed to the benefit of the schools, such as graduate assistants. 
 
Under the leadership of star quarterback Kain Colter and with financial support from the United Steelworkers, the players argue they are not just simply players or student athletes, but “employees” who have generated hundreds of millions of dollars for their respective schools. Calling the NCAA a dictatorship run without student input, the athletes say they want to be treated better by both the universities and the NCAA, with access to benefits such as long-term health care and education assistance if unable to complete their degrees due to injury.  
 
Do the athletes have the right to organize a union? The NCAA has argued no. But that is not an open-and-shut question. Of course, students and athletes can organize to collectively work together to improve conditions. Look no further than student rallys at the Minnesota Capitol that have directly impacted student tuition and conditions. The critical question in the football players’ organizing effort is whether the athletes will be afforded the protections of the National Labor Relations Act (NLRA), meaning whether the universities could take action against them, such as revoking scholarships or enforcing penalties, because of their engaging in such activity, or would the federal labor law protect them against such a response?  
 
To have such NLRA protection, the athletes must show that they are employees. This is where the controversy lies. The NCAA has stated its position is an emphatic no. The players on the other hand argue that their scholarships are compensation for services, setting up what is essentially an employment relationship.   
 
Whether or not the NLRB will conduct a union election among the players and protect them against any response of their university will, indeed, turn on whether the NLRB finds the players are employees for purposes of the labor law. That will be the subject of an investigative hearing on the relevant underlying facts about the relationship of the players with the university, which is currently scheduled to be conducted on February 12 by the NLRB Regional Office in Chicago where the petition was filed. Following the hearing, one option available to the Regional Director will be to seek the help of the NLRB’s lawyers of the NLRB Division of Advice about how to apply the federal labor law to these circumstances.
 
It may seem unlikely that the NLRB will decide to move forward with conducting a union election among the players. After all, does anyone really think college football players are employees by virtue of their scholarships?  
 
It is important to this picture to know that in a 2004 Brown University decision, the NLRB held that graduate students, research assistants, and proctors were not employees, but primarily students who were not afforded the protections under the NLRA.  Since and in spite of that decision, New York University graduate students  are now recognized members of the United Autoworkers union, and other higher ed institutions may follow suit in recognizing unions as representatives of students for collective bargaining. 
 
There have been fairly recent indications that some current members of the NLRB might be inclined in that new direction. In 2012, the NLRB invited friend-of-the court briefing on whether it should conduct an election among the graduate assistants at NYU; that case was resolved between the union and the schools (with union recognition) involved before the NLRB issued its decision.
 
The NLRB in Brown relied on nearly thirty years of settled precedent when it concluded that graduate student assistants are not employees under the NLRB. The question now for the Obama-appointed NLRB to decide is whether the reasoning in Brown is still valid. 
 
Management and university-side parties will presumably be arguing loudly and long that collective bargaining (for the protection of the individual worker through the power of the group) is the antithesis of the type of individualized, educational decision-making that is necessary to recruit, coach and reward athlete-scholars. Clearly, there is a strong case to be made that such athletic/educational decisions in higher education are not appropriate for the collective bargaining context, which, because of its adversarial, economic nature could be thought to undermine the relationship between coaches, the schools, and student athletes.
 
We expect this issue to have a prolonged life, extending far beyond the end of Kain Colter’s college career. And the impact of this case may be felt in institutions of higher education well beyond their relationships with student athletes, potentially extending into many other school-student relationships. This will be a very important issue for many schools to watch closely, and we will blog about key developments as they occur.  

Week in Review

As the world prepares this week for the start of the 2014 Winter Olympics, employers are being cautioned to address technology-induced liability. Many Fortune 500 companies have adopted policies banning employees' use of mobile devices while driving for work to avoid liability for a traffic accident caused by distracted-driving. The importance of workplace internet policies is also in the news this week, with an emphasis on policies that address an employer’s duty to report child pornography on a work device. You can read below about how to fight against technology-related liability.  You can also click on the links below to learn how to team up with technology to track your favorite sports during the Olympic games.

Technology and the Workplace
Employees Using Cellphones And Other Portable Devices While Driving: Should Employers Ban This Completely? (Employment Law Lookout)
Time to Log Off? Take Care When Crafting Workplace Internet Policies (TLNT)
I (don't) "like" this protected concerted activity (Ohio Employer's Law Blog)
Disruptive Facebook Posts Warrant Termination (Delaware Employment Law Blog)
Getting back at a departing employee (Tech for HR)

Technology and the Law
Grand jury indicts alleged Silk Road owner (CNN)
How Facebook has changed the way we govern (Washington Post)
The FBI Wants to Buy Some Malware (Mashable)
Is it time to go high tech on the Fourth Amendment? (ABA Journal)
City attorney sued by watchdog group for using private account for work-related emails (ABA Journal)

There's an App for That
How to Watch and Follow the Winter Olympics Opening Ceremony (Mashable)
Adobe Again Teams With NBC For Mobile Olympics App (silicon beat)
4 Sochi 2014 Olympics Apps to Download Before the Games Begin (CIO)
Olympic apps to help you enjoy the games (New Haven Register)
Sochi Olympics 2014: 10 Technologies In Spotlight (Information Week)