Friday, May 30, 2014

Week in Review

How did you commute to work this morning?  Google's self-driving car prototype unveiled this week may soon change your answer.  Google is hoping that, within the next decade, these cars may alleviate the most miserable part of the day for many Americans - their drive to and from work.  Not only must Google win over American drivers, however, it also must woo the regulators in all 50 states. With only three states having laws on the books that permit some version of autonomous vehicles on their roadways, these cars are likely to require legal changes in addition to changes to the rules of the road.

Technology and the Workplace
Google's Next Phase in Driverless Cars:  No Steering Wheel or Brake Pedals (NY Times)
Even limited to 25 mph, Google's car will arrive faster than you think (CNET)
Zappos Zaps Its Job Postings (WSJ)
Half of American adults hacked this year (CNN)
Australian Apple devices hacked and held to ransom (CNET)

Technology and the Law
Witness for the prosecution:  Your own car?  (ABA Journal)
Technology Companies Are Pressing Congress to Bolster Privacy Protections (NY Times)
FTC report calls for Congress to rein in data brokers (ABA Journal)
Yelp's online review saga continues (HR Hero)
Two more states just made it illegal for employers to demand social media passwords (The Employer Handbook Blog)

There's an App for That
Lookout Fights Back Against Smartphone Thieves (Mashable)
Square's Found a Way to Beat Banks at the Loan Business (WIRED)
Would You Rent Out Your Dog?  Weirdly, You're Not Alone (Forbes)
How to Stalk Your Friends on Vacation Without Being Creepy (Yahoo)
Skype Translator to break the Web-chat language barrier (CNN)

Thursday, May 29, 2014

The Changing Faces of Unions

While union membership has declined precipitously over the last few decades, union activity is now popping up in many new sectors.  From 1983 to 2013, according to the Department of Labor, union membership dropped from over 20% of the U.S. workforce to a little more than 11%. The public sector, particularly in the areas of education and protective services, still has the highest unionization rate.  In the private sector, the areas of utilities, transportation, and telecommunications represent the highest rates of unionization.

In recent years and months, however, we’ve seen a growth in union organizing in formerly non-unionized sectors.  In March, football players at the University of Northwestern were found to be eligible to unionize, and, a month ago, the players voted on whether to unionize. Charter school unionization rates have increased roughly 400% from the 1990s.  In addition, adjunct faculty unionization is rising significantly across the country.  Other sectors experiencing unionizing efforts include music video dancers, video game designers, and fast-food workers.

Because of this renewed union activity, both public and private employers in any industry should take seriously the tips set out below.  These tips are aimed at ensuring workplace policies do not violate labor law and that employees are successful and satisfied, decreasing the chance of interest in joining a union.  Keep in mind that labor law does not just apply to employers that already have a union – many of the labor law protections also prohibit non-union employers from interfering with non-management employees’ rights under labor law.

Handbook and Employment Policies Tips:

  • Make sure that employment policies, particularly social media, confidentiality and nondisparagement policies, do not violate non-management employees’ right to engage in concerted efforts to improve working conditions, including collective bargaining.
  • Social media policies should not contain language discouraging employees’ right to organize or to openly discuss terms and conditions of employment.
  • Confidentiality policies should not preclude employees from discussing wages, benefits, and other terms and conditions of employment.
  • Nondisparagement policies should not include any language that limits employees’ ability to freely discuss the employer with coworkers.

Good Practices:

  • Have clear written policies and enforce them consistently.
  • Strive to be fair, respectful, and even-handed.
  • Recognize and appreciate employees.
  • Communicate clearly with employees regarding performance and any company changes.
  • Establish a clear process to ensure employees’ complaints are heard and dealt with in a timely manner.

As they say, an ounce of prevention is worth a pound of cure.  As it turns out, the best prevention techniques for unionization are the same things that can help you run an effective business with a happy workforce.

Thursday, May 22, 2014

Week in Review

It seems that society may be overdosing on public sharing through social media platforms.  According to this week's headlines, the use of social login services has peaked, the controversial, anonymous app “Secret” is gaining users, and functional fashion that can disable your gadgets is expanding.  Speaking of oversharing, we are approaching the long Memorial holiday weekend which means lots of time spent with family and friends.  Whether you choose to share in person, through social media, or anonymously, have a safe and enjoyable holiday weekend!

Technology and the Workplace
Too Much Information?  Facebook, Google Face Backlash Over Logins (WSJ)
Why Anti-Tech Is in Style - Literally (Yahoo)
Online Grocery Start-Up Takes Page From Sharing Services (NY Times)
Data Point:  Yes, Email Still Eats Up a Good Chunk of Your Day (WSJ)
Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First! (Delaware Employment Law Blog)

Technology and the Law
eBay hacked, requests all users change passwords (CNET)
FCC chair:  An Internet fast land would be 'commercially unreasonable' (Washington Post)
California Urges Websites to Disclose Online Tracking (NY Times)
Airbnb to hand over user data to New York attorney general (CNN)
Apple sued over iMessages that fail to reach ex-iPhone user (The Guardian)

There's an App for That
Secret, the anonymous social app, launches on Android (LA Times)
A New Effort to Get Apps Working Underground (WSJ)
Ever Text the Wrong Person?  Apple Might Have a Fix (Yahoo)
What Television Will Look Like in 2025, According to Netflix (WIRED)
New app helps you find lookalike for Fido (CNN)

Six Angry Persons? - Minnesota Employers Now Face Jury Trials Under the MHRA

If Minnesota employers recently detected vague but ominous tremors beneath their feet, it may have resulted from very recent activity coming out of the Minnesota state capitol. With one very short amendment to the Minnesota Human Rights Act (the "MHRA") that was signed into law by Governor Dayton on May 13, the legal exposure landscape for employment discrimination claims may have shifted radically. Specifically, the MHRA was amended to now grant a right to a jury trial for violations of that law.

As most employers are aware, the MHRA is the Minnesota statute that prohibits discriminatory employment practices. Prior to this amendment to the MHRA, Minnesota had, since the enactment of the MHRA in 1955 (originally named the Minnesota State Act for Fair Employment Practices), restricted trials for violation of the statute to trials presided over only by a judge, without the presence of a jury. With this amendment to the MHRA, Minnesota law on the availability of a jury becomes consistent with federal law, which has long provided a jury trial right for employment discrimination claims under Title VII.
The previous limitation of MHRA employment discrimination claims to trials before only a judge has traditionally been seen as favorable to employers, with the generally-held belief that a judge would be more likely to decide a case in a more objective manner, less driven by emotion, than would a typical jury. Having had the opportunity to conduct several jury trials, I am able to share the observation that the typical person likely to serve on a jury in Minnesota (and most other places) is significantly more likely to come from work and life experiences making them much more likely to identify with an aggrieved employee – or former employee – than with an employer (management). My most recent jury trial experience in Minnesota state court, in two different employment law trials, found that only a small percentage of the 16 collective jurors in those two cases held management or business ownership positions (three jurors, to be precise). A majority of the jurors, on the other hand, either had past experiences where they believed that they were treated unfairly in an employment setting, or had close family members with such experiences. It is, therefore, quite difficult for an employer to ever obtain a “jury of its peers” in an employment lawsuit. Additionally, jury trials tend to be more expensive than “bench trials” before only a judge.
It is certainly understandable why many attorneys who represent employers – and their clients – are hesitant to cast their fate before a jury composed of many members who might be predisposed in favor of a suing employee in an employment dispute. As such, the Minnesota legislature’s changing of a few little words contained within a single law may have the potential to significantly alter the legal landscape for Minnesota employers.

Thursday, May 15, 2014

Week in Review

Large internet companies dominated the legal news this week. In a case against Google, the European Union's top court ruled that citizens may compel search-engine owners to remove certain types of personal information included in search results of the citizen’s name. While this ruling currently has no direct impact on privacy laws in the United States, the practical implications of the ruling for Internet companies are interesting and the ruling could potentially be used by practitioners outside the European Union to try to influence courts in other jurisdictions. Closer to home, Minnesota enacted a law requiring a “kill switch” on all smartphones and tablets sold in the state by 2015. Minnesota is the first state to require this remote shut-off feature as a step towards addressing the loss or theft of mobile devices, but legislation is likely to follow in other states and at the federal level.

Technology and the Workplace
Should Companies Monitor Their Employees' Social Media? (WSJ)
What Are The $10+ Billion Big Industries Of The Future? (Forbes)
Experts:  Internet of Things and Wearables Will Dominate by 2025 (Mashable)
Some Predictions About the Internet of Things and Wearable Tech From Pew Research (NYTimes)
What It Means to Wear Headphones at Work (Yahoo)

Technology and the Law
European Court Lets Users Erase Records on Web (NYTimes)
EU ruling a stunner to U.S. Internet community (USA Today)
Mandatory 'kill switch' on smartphones becomes law (StarTribune)
The FCC and Net Neutrality: What You Need to Know Before Thursday (Mashable)
The Slow Decline of Peer-to-Peer File Sharing (Mashable)

There's an App for That
Out in the Open:  The Tiny Box That Lets You Take Your Data Back From Google (WIRED)
Show Me the Money:  The Best Apps to Pay Friends Back (WSJ)
Hyperlocal apps help residents fight crime (CNN)
Twitter to roll out 'mute' feature (CNN)
To Know Thyself, Collect Data On Your Dog (NPR)

Wednesday, May 14, 2014

New Minnesota Law Should Prompt Employers To Review and Modify Employee Handbooks and Practices

This week, the Minnesota Governor signed the Women’s Economic Security Act (“WESA”) into law. The WESA makes a sweeping variety of changes and additions to Minnesota law aimed at protecting women’s economic security. These changes include, among others, modifications to the length of Minnesota parental leave, a new required handbook notice regarding employees’ freedom to discuss wages and benefits, and the addition of a new protected class under the Minnesota Human Rights Act.  Some of WESA’s provisions are effective immediately and others are effective later this year, necessitating changes to handbook policies and practices for most Minnesota employers.
Here’s a summary of the more significant aspects of WESA for Minnesota employers:
  • Increased Parental Leave.  Effective July 1, 2014, employers with 21 or more employees (which includes many employers not subject to the federal Family and Medical Leave Act) are required to grant up to twelve, instead of the former six, weeks of unpaid parental leave to eligible employees having or adopting a child. Pregnancy is also added as a qualifying reason for leave, as are prenatal care and health conditions related to pregnancy or childbirth. Employers may require reasonable notice of the date on which the leave will start and its estimated duration. Under the WESA, the leave may be taken at any time within the twelve months following the birth or adoption of a child; formerly the law required the leave to be granted and taken within six weeks of those events. During parental leave, an employer can require an employee to use any available paid time, such as sick or vacation time. 
  •  Additions to Sick Leave Requirements. Employers with 21 or more employees are required to allow an employee to use any available sick time to care for a sick or injured child or certain other relatives on the same terms on which the employee could use the time for himself or herself. Effective July 1, 2014, the list of covered relatives will be expanded by the WESA to include a mother-in-law, father-in-law, and grandchild (which includes a step-grandchild and a biological, adopted or foster grandchild). In addition, as of July 1st, an employee’s sick time can also be used for a “safety leave” for covered relatives for the purpose of providing or receiving assistance due to sexual assault, domestic abuse or stalking.
  • Requirement of Reasonable Accommodation for Pregnancy-related Health Conditions. Effective immediately, Minnesota employers with 21 or more employees must now make reasonable accommodation for health conditions related to pregnancy when a pregnant employee requests an accommodation with the advice of her health care provider or a certified doula, unless doing so would create an undue hardship. The law requires an employer to engage in an interactive process with the employee requesting an accommodation. An employer is not required to displace another employee as an accommodation, but transfer to a different job may be a potential accommodation.
  • Wage Disclosure Protection. Effective July 1, 2014, the WESA makes it unlawful for an employer to require an employee to (1) keep his or her wages confidential as a condition of employment; (2) prohibit employees from discussing their wages or require an employee to sign a waiver or other document denying the employee the right to disclose wages; or (3) to otherwise take any adverse employment action against an employee for disclosing wages. Unlike similar prohibitions under the federal labor law, WESA protects both management and non-management employees. In addition, an employee handbook must now include notice of employee rights and remedies under this section of WESA. An employee may bring a civil court action to enforce this statute and can receive attorney’s fees and damages if successful.
  • Nursing Mothers. Minnesota law currently requires that nursing mothers be given a private place at work to express breast milk.  Effective July 1, 2014, the existing law has been amended by the WESA to provide that this private location can’t be a bathroom and must be shielded from view and free from intrusion. The WESA also adds a non-retaliation provision to the nursing mothers’ statute.
  • Familial Status Added to MHRA Protected Classes. Effective immediately, familial status, i.e. being a parent or guardian of a minor, has been added as a protected class under the Minnesota Human Rights Act (MHRA). As such, employers are prohibited from discriminating against an applicant or employee based on familial status.
  • Unemployment Compensation and Sexual Assault & Stalking. Effective October 1, 2014, the WESA makes an individual who quits employment as a result of sexual assault or stalking eligible for unemployment benefits. Previously, this provision of unemployment law was limited to domestic abuse situations.
  • Equal Pay; Job Development. Effective October 1, 2014, state government contractors with contracts of at least $500,000 must obtain an equal pay certificate, the requirements for which are detailed in the WESA.


Monday, May 12, 2014

Week in Review

Personal wearable technology is all the rage, but can wearable technology also increase employee productivity? A study out this week found that wearable technology in the workplace increases both employee productivity and job satisfaction.  Click the link below to read about how wearable technology may benefit and change your workplace.

Also, in our tracking of There's an App for That, we feature a refrigerator that lets you know when you are out of milk, sunglasses that text you when you leave them behind, and a robotic lawn mower.  If you're late with your Mother's Day gift, these would make great gifts for every Mom who wants more time in her day.

Technology and the Workplace
Workplace wearables:  Your boss knows how you slept last night?  (CNN)
Wearable technology can boost employee productivity, job satisfaction (Tech Times)
What Is The Future Of Fabric?  These Smart Textiles Will Blow Your Mind (Forbes)
5 Ways Hackers Exploit our Bad BYOD Habits (WSJ)
Two-Thirds of Americans Would Put Themselves in Danger to Retrieve a Stolen Phone (Yahoo)

Technology and the Law
Tech giants refuse to keep government requests for data secret (ABA Journal)
Russia Quietly Tightens Reins on Web With 'Bloggers Law' (NY Times)
Courts, Lawmakers Curb Police Access to Prescription-Drug Databases (WSJ)
Major news outlets call the FAA's drone restrictions a violation of the First Amendment (The Washington Post)
Gossip website's appeal of ex-cheerleader's defamation verdict watched closely by Internet giants (ABA Journal)

There's an App for That
Out of Milk?  LG's New Smart Fridge Will Let You Know (NBC News)
These Sunglasses Will Text You When You Leave Them Behind (Yahoo)
Smart Bottle Holder Tracks Your Baby's Nutrition (Mashable)
New LawnBott robo-mower gets smarter with an app (CNet)
Chui's "smart doorbell" recognizes faces, greets guests (CBS News)

Wednesday, May 7, 2014

Are Provisions in Your Social Media Policy Overbroad? The NLRB Might Think So

Employers see social media as a new and different form of communication by their employees, requiring careful consideration and special policies. But according to a recent decision from a National Labor Relations Board Administrative Law Judge, online communications are analogous to a form of communication that has been in workplaces for decades – water-cooler talk.  In The Kroger Company of Michigan, the judge ruled that employers may run afoul of Section 7 of the National Labor Relations Act ("NLRA") by placing certain limitations and burdens on their employees' online communications that it would not put on communications made elsewhere, such as at the water cooler.

Section 7 of the NLRA gives employees the right to communicate with one another regarding their terms and conditions of employment. The judge struck down four provisions in the employer's social media policy that, in essence, stated the following:

  1. If an employee of the company identifies him/herself as such and publishes any work-related information online, he or she must include a disclaimer stating that the postings represent the employee's views and not those of the employer.
  2. Employees must not use the company's intellectual property assets (e.g., copyrights, trademarks, etc.) without permission.
  3. Employees must not discuss confidential and proprietary information about the company in any public forum and must not comment on rumors or speculation related to the company's business plans.
  4. Employees must not engage in behavior online that would be inappropriate at work, such as disparagement of the company, its leadership, or its employees.
The judge found each of these provisions to be overbroad. First, he found that the requirement to include a disclosure with each work-related online communication was too burdensome and would therefore have a chilling effect on employees' Section 7 rights. While the judge recognized the employer's legitimate interest in not having certain employee communications associated with the company, he found that the breadth of the policy went beyond the employer's legitimate interests. This is where the judge invoked the water-cooler analogy, finding that online communications are more analogous to water-cooler talk than a company press release and therefore should not require the burdensome formality of a disclaimer.

Second, the judge held that the employer's prohibition on the use of its intellectual property without permission was overbroad because it prohibited even the fair use of the company's logos, banners, etc. Third, the judge found that the rule against commenting on rumors or speculation related to the company's business plans was too broad because comments related to business plans could include communications obviously protected by the NLRA, such as discussions of transfer of employees, potential shutdowns, closures, layoffs, and transfer of work. Finally, the judge found that the policy's prohibition of online behavior that would be inappropriate at work such as disparagement of the company, its leadership, or other employees was overbroad because it clearly could be understood to ban protected activity, such as criticism of the employer or its agents. 

So you may want to review your company's social media policy to ensure that its provisions are tailored to serve the company's legitimate interests and cannot be interpreted to infringe on employees' Section 7 rights. Perhaps a good question in assessing whether your policy is overbroad is to ask, "Would this be a legitimate restriction to place on our employees' water-cooler talk?"

Friday, May 2, 2014

Week in Review

The assault on internet security continues to fill news headlines this week. On the heels of the Heartbleed bug, Microsoft announced this week that a security vulnerability exists in all versions of Internet Explorer, with no known fix. This vulnerability is especially concerning for employers, who often do not control the browser choices of employees. Also, you can read below to discover the various ways that security breaches can affect our everyday lives, including jamming up traffic and "war driving" at your favorite free wi-fi spot.
Recent “Week in Review” topics are also back in the headlines this week. The Food and Drug Administration recently proposed new regulations on e-cigarettes. These regulations do not provide guidance on vapors in the workplace, continuing to place the burden on employers to navigate in uncharted territory. Additionally, related to last week's post on telecommuting, the survey linked below looks at the transformation of the flexible workplace for employees over the last six years. You may want to review that survey to see if your workplace policies are keeping up with the times.

Technology and the Workplace
Stop using Microsoft's IE browser until bug is fixed, US and UK warn (CNET)
Employers Are Getting More Flexible -- Up to a Point (WSJ)
E-Cigs at the Office:  Still a Hazy Issue (WSJ)
Should E-cigarettes Be Allowed In The Workplace (Forbes)
Want to unsend that email? Two Harvard law students offer a way to do it (ABA Journal)

Technology and the Law
Hackers Can Mess With Traffic Lights to Jam Roads and Reroute Cars (WIRED)
Mind the WEP: 'Warbiker' Exposes Londoners' Bad Wi-Fi Habits (WSJ)
Airbnb Takes to the Barricades (NYTimes)
FCC Chairman Pledges to Police Internet 'Fast Lanes' (NBC News)
Lawyers can look up jurors on social media but can't connect with them, ABA ethics opinion says (ABA Journal)

There's an App for That
Blocking apps helps you focus on work (CNET)
Anonymous Chatting, Through a Simple Service (NYTimes)
Yahoo to Offer TV-Style Comedy Series on the Web (NYTimes)
RIP, Car Washes:  See Nissan's New Self-Cleaning Paint in Action (WIRED)
FAA Looking Into Use of Drones in Journalist's Tornado Coverage (Mashable)