Wednesday, April 30, 2014

What Would You Do With Donald Sterling?

By now, you’ve probably heard of the audio recording of racist statements by L.A. Clippers’ owner Donald Sterling that has gone viral. Yesterday, the NBA commissioner announced that Sterling will be banned for life from the NBA and fined $2.5 million, the highest fine permitted by the NBA’s constitution and bylaws. It also appears that Sterling stands to lose his ownership stake in the Clippers. 

Sterling’s statements were recorded by a former girlfriend during a conversation in Sterling’s home and later leaked to TMZ. There has been near-universal support for the NBA’s swift and decisive action against Sterling, but some have raised concerns about the fact that Sterling’s statements were made in a private conversation and that the recording of his comments may have been surreptitious and unlawful. 

Unlike the standard employer-employee relationship, the NBA’s relationship with Donald Sterling as the Clippers’ owner is governed by the NBA’s constitution and bylaws. These documents appear to permit the NBA to take yesterday’s actions against Sterling.  But what about in the employment world? What would you do if your company’s owner or a key employee was caught on tape making racially discriminatory remarks? 
An employer in this situation would need to strike the right balance between its legal obligations to respect employee privacy on the one hand and, on the other hand, to provide a workplace free of discrimination and harassment. In balancing these issues, it’s important to remember that an employer can still be liable for discriminatory and harassing conduct even if it takes place away from the office. In addition, if the “bad actor” is an owner or executive, it will be difficult to separate out their personal comments or actions from the effect that activity has on the company’s reputation and the work environment. When it comes to a Sterling type situation, my two cents is that an employer is probably relatively safe in disciplining or terminating a key employee for this conduct so long as the employer played no role in any secret tape recording. In a different high profile incident, this is the approach that an employer took last year after a its executive was charged with slapping a toddler on a plane and making a racial slur.
Keep in mind, though, that the way the company acquires information about an employee’s comments and activities matters. The law on secret tape recordings varies state to state, with some states requiring the consent of all participants. So, before acting, make sure you know whether your company played a role in any secret recording and what laws apply. Also, federal courts have held that that the federal Stored Communications Act protects non-public online posts, such as Facebook wall posts. If an employee walks in to Human Resources with a print-out of a racially charged or other concerning post, the company should be able to review and follow up on the posts. If the company improperly accesses an employee’s non-public Facebook posts, however – such as by falsely posing as a “friend” or coercing someone to permit access to the posts – this could run afoul of the Stored Communications Act. So, check your facts and the law, and be careful out there!

Thursday, April 24, 2014

Week in Review

Are you working in your pajamas right now? Or from the beach? If so, you may be one of the many Americans who telecommute. This week, a Forbes article discussed the rise of telecommuting, the reasons telecommuting is becoming more common, and why it's not for everyone. Meanwhile, a federal appellate court held that telecommuting may be required as a form of reasonable accommodation for a disabled employee. The court had previously held, back in 2004, that telecommuting was not a form of reasonable accommodation, but it explained that the technological evolution of the last decade now makes telecommuting a more viable option.  

In other news, there has been some follow up on our post last week discussing the recent announcement that smartphones in the U.S. will soon come equipped with a kill switch. The federal government has argued in a brief to the Supreme Court that this type of technology is a justification for federal officers to be able to immediately search a suspect's cell phone without a warrant before the phone is locked or remotely wiped. You can also read on below to see the many other ways technology is shaping the law. 

Technology and the Workplace
Is Telecommuting The Wave Of The Future? (Forbes)
Sixth Circuit reverses course and holds that telecommuting may be a reasonable accommodation (Employer Law Report)
Step Away From the Text Messages (Evil HR Lady)
Social Media Privacy Update: What Employers Need to Know About New State Legislation (Technology Company Counselor)
Job Fairs Ditch Paper for Bar Codes (WSJ At Work)

Technology and the Law
Feds Beg Supreme Court to Let Them Search Phones Without a Warrant (Wired)
When 'Liking' a Brand Online Voids the Right to Sue (NY Times)
Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter (Delaware Employment Law Blog)
F.C.C., in a Shift, Backs Fast Lanes for Web Traffic (NY Times)
NYPD asks for Twitter posts of photos of police interacting with public, gets and eyeful (ABA Journal)
Artists say 'Conversnitch' lamp planted at McDonald's posts public chatter on Twitter (ABA Journal)

There's an App for That
Acompli Launches App to Simplify Mobile Email (Mashable)
Branded Viral Videos: The Secret Marketing Weapon (Mashable)
Three Handy Android Apps for Customizing Your Notifications Bar (Wired)
Cloud Photo Storage: The Best Ways to Bank Family Pictures (WSJ)
Cellphone Cases to Prepare You for Anything, Even a Flat Tire (NY Times)

Wednesday, April 23, 2014

EEOC Issues New Guidance on Religious Dress and Grooming in the Workplace

The Equal Employment Opportunity Commission (“EEOC”) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.

The EEOC’s “Religious Garb and Grooming in the Workplace:  Rights and Responsibilities” guidance uses a question and answer format and covers a wide range of topics. In particular, the guidance notes the following:

·       All employees covered by Title VII of the Civil Rights Act of 1964 (employers with at least 15 employees) must make exceptions to general rules to allow employees to follow their religiously mandated dress and grooming practices unless it would pose an undue hardship.

·       Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional, organized religions but also religious beliefs that are new, uncommon, or not a part of a formal church.

·       Employers must make a case-by-case determination of any requested religious exceptions and train managers accordingly.

·       Undue hardship does not include jealously or disgruntlement from co-workers. In addition, customer preference is not a defense to a claim of discrimination. On the other hand, employers may refuse to grant an accommodation based upon workplace safety, security, or health concerns that pose an undue hardship. However, the guidance provides several safety, security, and health scenarios that do not trigger the undue hardship provision of the statute.

·       Retaliation based on a request for religious accommodation is also forbidden under Title VII.

·       Employers may be liable for harassment by co-workers or third parties in those situations where the employer knew or should have known about the harassment and did not take “prompt and appropriate” correction action.

Employers should take some time to review the new guidance to more fully understand the parameters around the application of Title VII to requests for religious accommodation for dress or grooming. The guidance can be found here. 

Thursday, April 17, 2014

Week in Review

Employers and their IT departments are always looking for ways to protect their data in this age of constantly changing technology.  One new form of protection that may become available to employers is a "kill switch" on their employees' smartphones.  A “kill switch” will allow a phone’s owner to remotely delete data and deactivate smartphones after a theft or loss. This week, Apple, Google, Samsung, Microsoft, and the five largest U.S. cell carriers voluntarily agreed to include the kill switch technology on all of their smartphones manufactured for sale in the U.S. after July 2015.  There is some criticism of the voluntary agreement, because users must opt in to equip their smartphones with the kill switch, rather than having their phone automatically enabled with a chance to opt out. What does this mean for employers?  Once smartphones with this technology become available, employers can consider enabling the kill switch technology on company-issued smartphones and revising technology policies to require employees to enable it on personal smartphones used for work purposes.  That way, if sensitive company data is on a stolen or lost device – or on a device that a departing employee refuses to turn over to the company to have company data removed – a mechanism will exist to remotely wipe the data.

Technology and the Workplace
Is It Time to Reconsider Your Personal Email Policy? (Delaware Employment Law Blog)
The Rise of the Two-Phone Employee (WSJ)
LinkedIn Wants to Help You Stay at Your Company (WSJ)
That US Airways Employee Won't Be Fired for 'Honest Mistake' (Mashable)
Facebook Profiles Can Predict Work Performance (Mashable)
A 79-year-old teacher was fired for refusing to unfriend her students on Facebook (Employer Handbook)

Technology and the Law
'Kill switch' may be standard on U.S. phones in 2015 (CNN) (ABA Journal)
Fulbright's Litigation Survey Addresses Privacy in the Age of Social Media and Mobile Devices (Workplace Privacy Data Management & Security Report)
Botched e-discovery can be an ethics violation, proposed opinion says (ABA Journal)
Kentucky Enacts a Data Breach notification Law and Protects Student Data in the Cloud (Workplace Privacy Data Management & Security Report)
Jerked Around? Did the FTC's "" Complaint Just Turn API Terms Into Federal Law? (Socially Aware)

There's an App for That
LinkedIn's Mobile March Continues With New SlideShare App (Mashable)
Google's New Modular Phone May Be the Last You'll Need to Buy (Wired)
Judgy Smart Scale Tracks Your Weight on Your iPhone (Wired)
The Best Tools for Cleaning Your Gross Gadgets (WSJ)
Google overhauls Android camera app with new interface and bokeh effects (ars technica)

Wednesday, April 16, 2014

H-1B Lottery Should Serve as a Reminder of the Need to Increase the Annual Cap

As we previously predicted, the United States Citizenship and Immigration Services (“USCIS”) received more new H-1B petitions during the first week of April 2014 than there are visa numbers available for Fiscal Year (FY) 2015. USCIS received approximately 172,500 petitions for FY 2015, which is more than double the annual limit of 65,000 “regular” H-1B visas and the additional 20,000 visa numbers reserved for individuals who hold advanced degrees from U.S. institutions.

USCIS has already conducted a random computer-generated lottery of all of those petitions to determine which petitions will be selected for processing.  The petitions that were not selected in the lottery process will be returned, along with the filing fees, to the petitioning employer or its attorney representative in the coming days.  USCIS has already begun issuing receipts for premium processing petitions that have been selected for review and will begin premium processing of FY 2015 H-1B petitions by April 28th.

As long as the demand for skilled foreign professionals remains high, we will likely continue to see the H-1B cap exhausted within the first week of filing.  Although the Senate’s June 2013 Immigration Bill and a bill approved by the House Judiciary Committee around the same time both contained provisions to increase the annual H-1B cap, the H-1B cap issues have not yet been considered apart from the controversial issue of comprehensive immigration reform.  Who knows, though, maybe this year’s lottery experience will prompt lawmakers to finally move forward with H-1B reform.

Tuesday, April 15, 2014

French Approach to After Hours Work Unlikely to Catch On

A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours. 

The invasion of work into personal lives is an international phenomenon, but prohibiting after-hours emails is about as likely in the U.S. as a 35-hour workweek. While the French labor agreement is unlikely to find traction here, we are certain to continue seeing claims for overtime pay by employees who stay connected to work through smartphones and other devices. Employees who are “suffered or permitted to work” are entitled to compensation even when the work is not authorized by the employer. With today’s technology, and the ability to remain at work virtually at all hours, employers need to have policies that clearly spell out the company’s expectations, especially with employees who are not exempt from wage and hour laws.  These employees need clear and lawful direction on when working away from the office is authorized and how it needs to be recorded. When an employee violates the policy and performs unauthorized services, disciplinary action may be taken but should not include any docking of pay.

In addition to adopting a policy on remote access, employers should review employees’ actual after-hours work practices. Where technology creates problems it often also provides solutions. Because employees are linking into work after hours electronically, it is easier for employers to determine when and what work is being done, and for how long. It is also possible to electronically limit access to email and other resources when access is unnecessary. 

Friday, April 11, 2014

Week in Review

With technological innovations appearing daily in the workplace, employers must continually evaluate how best to proactively prepare for and respond to these changes. As you do your planning, you might want to check out the article below on how companies can learn from Google's example when it comes to humanizing technology in the workplace. This week's headlines also discuss wearable technology and how businesses can prepare for this new workplace phenomenon, including by revising their BYOD policies. 

Technology and the Workplace
How Google Humanizes Technology in the Workplace and You Can, Too (Fast Company)
At Google, Bid to Put Its Glasses to Work (NY Times)
How To Prepare Your Business For Wearable Technology (Forbes)
Laptops on ward rounds 'could save doctors an hour a day (Health Service Journal)
Covert Cellular: Enough Protection for Trade Secrets? (Trading Secrets)

Technology and the Law
EU court ruling boosts privacy rights of citizens (
U.S. Says It Tried to Build a Social Media Site in Cuba, but Failed (NY Times)
Who Owns Data 8: Trouble With Linkedin's Lawsuit (HR Examiner)
New Regulatory Guidance on Use of Social Media by Investment Advisers (Socially Aware)
Viral video of laptop being stolen from coffee shop leads to arrest of suspect (ABA Journal)
Attendees' smartphones cause courtroom chaos at latest Apple-Samsung patent trial (ABA Journal)

There's an App for That
8 Personal Fitness Tools to Get You Ready for Beach Season (Mashable)
Hand On With Carousel: Dropbox's New Photo-Organization App (Mashable)
Washio App Aims to be Uber for Laundry (NBC)
Want to Message on Facebook? Soon You'll Need a Separate App (NBC)
Billionaire Mark Cuban Launched A New App Described As 'WhatsApp Meets Snapchat' (Business Insider)

Tuesday, April 8, 2014

Minnesota Legislature Expected to Pass Minimum Wage Increase

The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota’s minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour.  The U.S. Department of Labor provides a summary of state minimum wage rates on its website: 

Source: U.S Department of Labor 
In addition to state wage rates that exceed the federal minimum, a number of local municipalities have enacted minimum wage ordinances setting rates that exceed federal minimum wage. The federal wage and hour law permits states and local governments to impose higher wage rates than federal law, and employers subject to varying laws typically must comply with the law most generous to an employee. As such, employers that operate in multiple locations must continue to be mindful of the special wage rules and other location-specific requirements that apply where they operate. 

Minnesota’s minimum wage action comes on the heels of other impending changes to wage and hour requirements. President Obama has taken executive action to increase the minimum wage paid by federal contractors and, as we previously reported, to increase the minimum weekly salary needed for an employee to be exempt from overtime pay requirements. We will be continuing to watch and advise you of these wage and hour developments.

Thursday, April 3, 2014

Week in Review

Not all technology-based changes in the workplace involve social media and smartphones. This week's headlines and blog posts highlight other ways in which technology is changing the way we work.  For example, employers are currently facing the decision of how to approach e-cigarettes in the workplace, and some employers are skipping the booth-filled convention centers and instead opting for virtual career fairs to find top candidates.  We also have linked to an article below about employees who put your cybersecurity at risk and how to deal with them.  Finally, learn how to craft email subject lines that will grab the attention of your busy colleagues and customers.

Technology and the Workplace
In The Haze of E-Cigarette Popularity and Regulation, What's an Employer to Do? (Employment Law Lookout)
So Long, Interview Suit: Here Comes the Virtual Career Fair (WSJ)
4 types of employees who put your cybersecurity at risk (ABA Journal)
The New Science of Email Subject Lines (WSJ)
Employer Access to Employee Social Media: Applicant Screening, 'Friend' Requests and Workplace Investigations (Socially Aware)

Technology and the Law
U.S. Judge Dismisses Lawsuit Against Chinese Search Engine (NY Times)
EU Parliament votes to end roaming, protect 'net neutrality' (Reuters)
Did law enforcement comment online about grand jury matter? Judge orders newspaper to reveal ID info (ABA Journal)
Turkey to Unblock Twitter (Mashable)
Apple v. Samsung Trial: 5 Things You Need to Know (Mashable)
U.S. Courts' Evolving Approaches to Social Media E-Discovery (Socially Aware)

There's an App for That
The 10 Most Popular Smartphone Apps in the U.S. (Mashable)
Text Smarter With This All-Knowing App (Wired)
Samsung launches "Smart Home" Android app and two compatible appliances (ars technica)
Amazon unveils video-streaming device Fire TV (CBS)
Microsoft Offers Windows for Free on Phones and Small Tablets (NBC)

Wednesday, April 2, 2014


There has been a storm of comment and controversy since the National Labor Relations Board ruled last week that scholarship football players at Northwestern University are “employees” of the school who have the right to unionize under the federal labor law governing private sector employers. The College Athletes Players Association (CAPA), the union seeking to represent the players, is moving ahead full-steam with a vigorous persuasive campaign to convince the 87 Northwestern football players to vote for union representation when the NLRB conducts its election soon. On its website CAPA speaks to why college athletes need a union, calling this a “fight for justice.” Criticism has come from many corners, not excluding politicians such as Sen. Lamar Alexander (R-Tenn.) who commented, “[i]magine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food and no classes before 11 a.m. This is an absurd decision that will destroy intercollegiate athletics as we know it.”

We first blogged about the players’ effort to unionize in February. Some of the fundamentals we set out there are worth reiterating now that the NLRB has ruled that a union election can go forward:

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. 

And now the NLRB has said yes. This ruling hardly ends the matter; it merely engages the battle.  As I explained in an interview published in Sunday’s Star Tribune Sports Q&A section:

Although Northwestern has indicated it will seek review [from] the full board in Washington, that will not have the effect of putting a hold on the election. … That union election should go forward shortly. And the football players will vote. Those ballots are secret, and they’re sealed. They’ll be impounded by the board until the review is complete, and that could take a year. … The whole process could take a couple of years. 

One indicator [of what might result from bargaining between the players and the school] is what the union has said it wants to bargain for, and the number one thing I’ve seen is lifetime coverage of medical expenses resulting from football-related injuries or conditions. … But all that’s just a wish list. It’s all subject to bargaining.  
The implications of this decision are much debated but undoubtedly far-ranging. The New York Times ran a very interesting piece immediately after the ruling on “Putting a Price on Priceless.” and Wednesday this week the paper offered a “primer” on the subject. Our friends from the New York Employment Law Alliance firm at Bond Schoeneck & King in New York have blogged about a range of unintended consequences to which the NLRB ruling could lead. CAPA attempts to refute the likelihood of many such consequences on its website.

On Wednesday, CAPA headed to Capitol Hill for scheduled meetings with lawmakers as the union braces for an appeal of the ruling. These meetings were expected to provide a chance for former Northwestern quarterback Kain Colter — the face of the college athletes labor movement — and Ramogi Huma, the founder and president of CAPA, to spell out one of their chief concerns, which is providing for the medical needs of athletes. Huma said the group also was concerned that the NCAA would lobby Congress to prohibit unionizing by college athletes. In a statement, Stacey Osburn, director of public and media relations for the NCAA, said Huma's concern was "unwarranted." A Northwestern official has said that the students were not employees and that unionization and collective bargaining were not the appropriate methods to address their concerns.

Not least among the issues raised by the NLRB ruling last week is what the proper analysis is, or should be, when deciding which members of a higher education community are employees with protected rights to unionize, bargain, and strike under the federal labor law. The NLRB is currently considering that question in a variety of contexts. In its 2004 Brown University decision, the labor board held that graduate students, research assistants, and proctors were not employees, but primarily students and thus were not afforded the protection of the labor law. There are many gray areas in this context.  There is at least one that is more black and white, though:  adjunct faculty clearly has a protected right to unionize; and with active support from SEIU’s Adjunct Action program they are aggressively doing that in a number of markets nationwide, including Minneapolis Saint Paul, as reported in the Star Tribune and the Twin Cities Daily Planet. Most employers in higher education should be taking action now to consider and plan for how they could be affected by this increasing and wide-ranging union activity on campus.