Thursday, June 26, 2014

Week in Review

Technology's impact on privacy took center stage in news headlines this week. The New York Times and National Public Radio (NPR) both reported on alternative software tools to track employees in the workplace - one tool identifies inside security threats and another tracks employee productivity. Our blog post earlier this week also discussed this issue, highlighting both upsides to employee monitoring and some of the downsides and risks. In addition, there was big privacy news coming out of the United States Supreme Court this week. In a highly anticipated ruling, the Court ruled for privacy rights, holding that police officers will no longer be allowed to conduct warrantless searches of a cellphone after an arrest. While this decision is not an employment case, it marks the first time that the Supreme Court has indicated that data on a private technology device may be constitutionally protected.

Technology and the Workplace
Unblinking Eyes Track Employees (NYTimes)
Software That Sees Employees, Not Outsiders, As The Real Threat (NPR)
New Offering for Job Seekers:  Fewer Embarrassing Social Media Photos (NYTimes)
Facebook Post Means No Unemployment Benefits for Nurse (Delaware Employment Law Blog)
Hi, I'm a Tablet.  I'll Be Your Waiter Tonight (NYTimes)

Technology and the Law
Cops Need A Warrant To Search Your Phone, Rules Supreme Court (Forbes)
Why the Supreme Court Cellphone Ruling Is A Really Big Deal (Mashable)
Debt collectors turn to social media to track down delinquents (Pittsburgh Post-Gazette)
ABA:  Lawyers Can Scour Jurors' Social Media Sites (ABC News)
Proposed new FAA rules set stage for stricter enforcement against business use of drones (ABA Journal)

There's an App for That
Network Lets You Sell Your Data For Cloud Storage (WSJ)
Meet Slidejoy:  The App That Pays You To See Ads On Your Phone's Lock Screen (WSJ)
App maker ordered to stop auctioning public parking spots (LA Times)
Google Glass Gets Shazam, Livestream, and a World Cup App (Mashable)
The Emoji Doctor Will See You Now (Mashable)

Wednesday, June 25, 2014

Workplace Monitoring and Performance: A Mixed Bag?

Technology increasingly creates opportunities to monitor employee performance and workplace behavior. Monitoring is generally considered to be a tool that is likely to increase employee productivity and performance. Interestingly, though, the New York Times recently highlighted a Harvard Business School paper on the topic describing what it calls the “Transparency Paradox.” 

Researchers conducted an experiment at a large factory in China, surrounding four of its 32 assembly lines with curtains to give a measure of privacy to the four lines. After five months, researchers found that the workers on the four lines with greater privacy were 10-15% more productive than the lines without curtains. The paper analyzed these findings, concluding:
[C]reating zones of privacy around line workers’ activities did not result in slacking off or cutting corners. Instead, the zones of privacy improved transparency within the line and, with it, improved productive deviance, experimentation, and focus on productive work. . . . The establishment of a zone of privacy around the line allowed improvement rights to be owned by those on the inside, encouraged more transparency within the visibility boundaries, and ultimately enabled an increase in organizational performance.
 (Here at pp. 43-44.)

The Harvard paper did not entirely dismiss the potential benefits of employee monitoring, noting, for example, that the productivity findings were measured by the company’s IT systems. The paper did, however, praise the value of “visual privacy” as an underutilized “performance lever.”


Whatever your company’s approach on employee monitoring, the Harvard paper illustrates that workplace monitoring can present opportunities, downsides, and risks. When looking at the upsides of technology, using technology can, in some instances, promote better behavior and more productivity. In addition, it can allow employers to monitor and measure performance more objectively, and objective performance measures can decrease legal risks of discrimination and other types of claims.

At the same time, monitoring employees creates potential downsides and risks. The Harvard paper suggests that at least some employees may perform better when they have some measure of privacy. In addition, performance measures that are not appropriately tied to an organization’s legitimate business needs can increase legal risks. For examples, these measures might have a disparate impact on certain legally protected groups, giving rise to the risk of discrimination claims. Similarly, monitoring employees without advance notice or in ways that unnecessarily intrude into employees’ personal lives can create a risk of privacy and other potential legal claims. Like with so many issues, employers utilizing technology to monitor employee performance should be thoughtful and pursue a careful, balanced approach. Monitoring and performance measures should be fair and accurate, driven by business needs, and should be implemented after reasonable notice to employees. These measures should also be done in way that avoids unnecessary intrusions into employees’ personal lives and unwittingly inhibiting the very performance an employer is trying to enhance.

Thursday, June 19, 2014

Week in Review

Can you imagine receiving just a few work-related emails a day? Click the link below to read about the innovative communication solutions that companies are exploring to try to reduce the biggest distraction for their employees – the volume of their inbox. Speaking of distractions, as we mentioned in last week's Week in Review, we’re in the midst of the 2014 World Cup. Much like March Madness, the World Cup is a month-long event that can create productivity concerns for employers. Since the 2010 World Cup, technology advances have created greater challenges for employers who seek to monitor employee activity. So, before you tackle that issue during this year’s World Cup, read the links below for a review of some of the issues to consider.

Technology and the Workplace
A Company Without Email?  Not So Fast (WSJ)
World Cup Fever:  Workplace Considerations Before Giving Out That Red Card (Connecticut Employment Law Blog)
The World Cup Is On... Should You Be Watching?  (Evil HR Lady)
Board GC Seeks to Change Work Email Rule (Labor Relations Today)
"Do You Want To Know a Secret?"  The Risks Posed by Anonymous Social Apps (Socially Aware Blog)

Technology and the Law
Student suspended for 7 weeks over 2-word tweet sues police and school officials (ABA Journal)
Agency Aims to Regulate Map Aids in Vehicles (NYTimes)
Google Ready to Comply With 'Right to Be Forgotten' Rules in Europe (NYTimes)
Settlement reached with states in Apple e-book price-fixing case (LA Times)
Jurors Behaving Badly (Delaware Employment Law Blog)

There's an App for That
This App Lets You Say 'Yo' to Your Contacts.  That's It.  (Wait, Is It?)  (Mashable)
You Can Watch the World Cup for Free on Roku (WIRED)
Facebook Releases Slingshot for Self-Destructing Selfies (NYTimes)
Microsoft Enters Wearables Sector with Phone Charging Pants (Forbes)
The Bench of the Future Could Charge Your Smartphone (Yahoo)

Wednesday, June 18, 2014

President Obama to Use His “Pen and Phone” to Expand LGBT Workplace Protections

June 2014 is Lesbian, Gay, Bisexual, and Transgender (LGBT) Pride month, and President Obama is set to mark the month by using his “pen and phone” approach to expand workplace protections for LGBT individuals. Frustrated with the inability to get various employment-related laws through Congress, President Obama has taken to using his executive authority to make progress where he can – primarily with federal government contractors.  So far this year, President Obama has issued executive orders raising the federal minimum wage for federal contractors and requiring contractors to pay women equal pay for equal work. The President’s latest move will be to issue an executive order prohibiting employment discrimination based on LGBT status by federal contractors and subcontractors who do over $10,000 in business with the government in any one year.

President Obama’s executive order has been a possibility for some time, but was delayed while the President tried to push for passage of the Employment Non-Discrimination Act (ENDA). ENDA would have make it illegal under federal law for most employers – not just federal contractors – to discriminate based on real or perceived sexual orientation or gender identity. Because ENDA has stalled in Congress, President Obama is reverting to the use of his “pen and his phone.”
At least one commentator has referred to President Obama’s upcoming executive order as the single largest expansion of LGBT workplace protections in this country’s history. It is estimated that the executive order will affect about 16 million employees of federal contractors and subcontractors. Others have commented, however, that the executive order may have limited practical effect given that many of the nation’s fortune 500 companies and top federal contractors already include sexual orientation in their nondiscrimination policies. In addition, it is important to remember that, while there is no federal law generally prohibiting employment discrimination based on LGBT status, a number of states - including Minnesota – have such laws. Minnesota’s anti-discrimination protections for LGBT workers apply to all Minnesota employers regardless of size.
Whatever your view on the potential workplace impact of President Obama’s executive order, it is coming at a time of other expansions of LGBT rights in the workplace. Last year, the US Supreme Court held that it was unconstitutional for the federal Defense of Marriage Act (DOMA) to define marriage as only between a man and a woman. As a result, the federal Family and Medical Leave Act (FMLA) now protects same-sex spouses in states where same-sex marriage is lawful, and same-sex couples also have greater protections to participate in employee benefit plans. Same-sex couples currently have the legal right to marry in Washington D.C. and at least 19 other states, including Minnesota. In addition, legal rulings are pending in over 10 states on whether same-sex couples have the legal freedom to marry in those states.
In light of all this activity, employers would be well-served to double check their employment law compliance obligations and, as applicable, to update their workplace policies and practices.

Thursday, June 12, 2014

Week in Review

Move over World Cup. Discipline based on employee social media activities is taking center stage this week. Well, maybe the World Cup has a few more headlines, but you can follow the links below to read four articles from this week about employees getting into employment trouble based on their social media activity. Also, a recent survey shows that 70 percent of employers have disciplined employees for on-the-job misuse of social media. One lawyer is making news, though, for his drastic protests of workplace discipline based on employee social media postings.  

Don't worry . . . we also have links below to headlines covering the technology side of the 2014 World Cup, including apps, technology used in the Cup matches, and exploitation of World Cup apps by cybercriminals.  

Technology and the Workplace
Social Media in the Workplace Around the World (Proskauer)
Employers crack down on social medial abuse (Business Management Daily)
A lawyer is literally starving himself to raise awareness for social media firings (Employer Handbook)
Lawyer says he ended hunger strike outside SCOTUS after collapsing (ABA Journal)
Websites Hit With Demand Letters on Accessibility Issues Despite Courts' Rejection of Claim (Socially Aware)
Premier League Email Scandal Misses Out On Penalties (Employment Law Worldview)

Technology and the Law
Uber protests snarl traffic in Paris, Madrid (SFGate)
Colorado becomes first state to pass law embracing Uber, Lyft (Sacramento Business Journal)
Yes: Net Neutrality Moves Forward (Forbes)
Vodafone Reveals Direct Access by Governments to Customer Data (NYTimes Bits Blog)
Cops Can't Collect Your Cell Tower Data Without a Warrant, Court Rules (Wired)

There's an App for That
7 free apps that keep you in the World Cup soccer game (FOX News)
Top apps for tracking FIFA World Cup 2014 (business today)
Apple launches new 'Soccer Fever' App Store section prior to FIFA World Cup (9to5Mac)
With Credibility on Line, World Cup Turns to Technology (NYTimes)
Cybercriminals exploit World Cup apps, footballers' names (humanipo)
Security robots will patrol World Cup stadiums (CBS News)

Wednesday, June 11, 2014

Traditional Job Postings: Who Needs ‘Em?

In a recent Week in Review post, we referenced a Wall Street Journal article about Zappos.com. It has abandoned job postings in favor of a radically different approach. Instead of posting job descriptions at online career sites, Zappos will maintain a social media network of “Zappos Insiders.” Through social media, people interested in working at Zappos will network and connect with current employees and provide (sometimes public) information about their skills and interests in hopes of being tapped to work in a specific job. As the Wall Street Journal article points out, Zappos’ approach raises some concerns about privacy, because the “Insiders'” posts may be public.

Aside from these privacy concerns, another interesting question to ask is whether employers should still use and communicate traditional job descriptions when posting open positions. Many would readily agree that detailed job postings and written formal job descriptions, if not well drafted and kept up to date, can be meaningless and disconnected from the actual duties and responsibilities of a job. In writing about job descriptions in the past, we’ve encouraged employers to draft descriptions that are current and accurately reflect reality. When that is done, having taken the time to consider and write out a job’s responsibilities and the required skills and experience can help an employer to hire better candidates with the correct skills for success in the job. In addition, clearly and accurately communicating the essential functions of a position can help job candidates self-select out of seeking positions for which they are not qualified. Job descriptions can also be helpful in identifying essential job duties for disabled applicants or employees. In short, the real purpose of a job description is to clearly set and communicate expectations.
So, even if an employer uses non-traditional methods to advertise job openings and screen candidates, there may still be good reasons to build in some tradition when it comes to job descriptions. The Zappos experiment promotes the notion of out with the “same old, same old” and in with the new. Zappos clearly has a unique workplace with a unique culture and it will be interesting to watch how its novel recruiting approach evolves. Whatever your workplace culture, though, an employer can still be well-served by clearly defining job duties and requirements, writing it all down, and then communicating the information to job candidates and employees.

Thursday, June 5, 2014

Week in Review

For months, the discussion about cryptocurrency - primarily "Bitcoin" - has steadily increased in technology news. This week, Dish Network became the largest company to accept Bitcoin payments, following Tesla, Virgin America, and Overstock.com. Click the link below to read about how legislators and regulators are working to find a way both to classify and regulate this bold new world of virtual currency. Also, if trying to understand cryptocurrency makes your head hurt as much as mine, check out the link below to the high-tech headband that de-stresses your brain. At the retail price of $299, this is a bargain if it declutters your brain and calms your mind as promised.

Technology and the Workplace
Dish's move to accept bitcoin seen as effective marketing maneuver (LA Times)
Have We Reached The End Of The Line For The Conference Call? (NPR)
With New Overnight Delivery, Google Confirms It Wants to Be Amazon (WIRED)
Automating Cybersecurity (NYTimes)
Skip the Website?  Some Small Businesses Still Do (ABC News)

Technology and the Law
Meet the people trying to make Bitcoin happen in Washington (Yahoo)
Bitcoin could be used to hide assets in divorces, warn lawyers (CNBC)
Google Offers New Encryption Tool (NYTimes)
Woman who got $50 dog-park ticket for Facebook post says cops were barking up the wrong tree (ABA Journal)
Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work) (The Employer Handbook blog)

There's an App for That
The High-Tech Headband That Can Make Your Stressed Brain Happy Again (Forbes)
Hologram Projectors:  Coming Soon to a Smartphone Near You (Mashable)
An Elegant App That Makes It Simple to Schedule Meetings and Events (WIRED)
You Will Soon Be Able to Eject Yourself from Annoying Group Messages on iPhone (Yahoo)
Get ready for car software updates (CNN)

Wednesday, June 4, 2014

The Changing Faces of Unions, Part II

As if to accentuate the timeliness of last week’s post on the surge in non-traditional union organizing, adjunct faculty organizing in the Twin Cities has been in the news again this past week. The Service Employees International Union, or SEIU, is targeting additional local institutions for adjunct faculty organizing. In addition, the Macalester College adjunct faculty vote has been postponed, with union organizers claiming both sides need more time to consider the issues underlying the vote. Several outspoken adjunct from Macalester have voiced opposition to the unionization effort in letters (Letter 1, Letter 2) to the editor in the Mac Weekly.

An interesting fact related to adjunct faculty elections is that, under the National Labor Relations Act, an election is decided by a majority of those who vote, not a majority of the overall members in the proposed bargaining unit. Due to the applicable voting timelines, the currently anticipated local elections are likely to occur during the summer months when adjunct faculty may not be on campus.

Keep checking in to the Modern Workplace to keep posted on the latest developments in labor law, from adjunct faculty to football players and private religious schools.