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The Modern Workplace

The Modern Workplace

  • Posts by Pamela J. Kovacs
    Contract Attorney

    As a former recruiter, Pamela Kovacs brings a unique insight into her work in employment and labor law, including having advised clients in the areas of discipline and discharge, employee handbooks, wage and hour, professional ...

Wage and hour issues heated up earlier this year when the U.S. Department of Labor (DOL) released a proposed rule that would more than double the salary threshold for employees to be classified as exempt under the "white collar" exemptions to the federal overtime requirements. You can read our post from July of this year to learn more about the proposed rule, which would raise the minimum weekly salary requirement for the white collar exemptions from $455 per week to $970 per week.

The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...

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Posted in Labor & Unions

When picturing a union organizing campaign, you might picture a contentious battle between a justice-seeking union and the supposedly big bad corporate employer. But, this week we saw one example of unionization in a more cooperative work environment . . . literally.

 
On Monday, workers at the Wedge Community Co-op in Minneapolis voted 76-31 to be represented by the United Food and Commercial Workers Local 1189, becoming the first cooperative grocery in the Twin Cities to unionize.
 
Co-ops tend to be all about democracy and the coming together of community members for a common ...
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A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.

The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...

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When I present harassment training, I tell my audience that harassment is usually unlawful only when based on a protected-class status, such as race, gender, age, disability, etc. During the training, I often tell the story of the "equal opportunity harasser" the individual in the workplace who is a jerk to everyone and does not discriminate in picking the targets of his/her jerkiness (that's my technical term). This is the person who is a jerk to everyone. Because this person's behavior is status-blind, it doesn't violate discrimination or harassment laws.

Some Minnesota ...

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Posted in Labor & Unions

Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for ...

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If you do business with the federal government, chances are that you're feeling weighed down by the various new requirements placed on you over the past year. We've discussed these requirements in past posts here and here. That's why you may be surprised to hear that the US Department of Labor's Veteran Employment and Training Service (VETS) published a final rule last week that actually makes something easier for federal contractors. The rule modifies and simplifies the reporting requirements under the Vietnam Era Veterans' adjustment Assistance Act (VEVRAA) for federal ...

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Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

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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 ...
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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 ...
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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 ...

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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 phones 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 ...

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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 ...

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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 ...

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This weeks news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and well be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices ...
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Overtime pay is a big theme this week following President Obamas directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law.  Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer.  Speaking of overtime, March Madness has begun once again.  Check out the links ...

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Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan ...

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Week after week, the blogosphere is full of discussions about new developments in the law involving social media. This week, the Equal Employment Opportunity Commission joined the conversation by holding a public meeting to discuss the interplay between social media and employment discrimination. The meeting provided helpful tips to employers, such as how to minimize the risk of a discrimination charge when conducting social media background checks. And, while we're on the topic, you can click on the link below to see if your social media policy is keeping up with all of the recent ...

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Some things should be kept private. This week, the blogosphere provided several anecdotal reminders of this principle for both employers and employees. As we noted in an earlier post, one former employee learned the hard way not to violate a settlement confidentiality provision when his settlement unraveled as a result of a Facebook post. You can also read on below to learn more about the potential future of employee privacy law. Also, check out the link below about when and how employers can access an employee's social media account used for business purposes. Finally, we have ...

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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 ...

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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 ...

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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 ...

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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 employers duty to report child pornography on a work device. You can read below about how to fight against technology-related ...

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

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Anything you say on Facebook can and often will be used against you in a court of law. Technology has not only changed the workplace; it has also changed employment lawsuits. We've provided a link below to an article discussing how data from smartphones and social media can take center stage in a workplace harassment lawsuit and methods for mitigating legal risks. You can also read on below about how electronic metadata drastically impacted a non-compete case. Speaking of technology having a drastic impact, there's also a link below to an app designed to help you fight for immigration ...
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This week's headlines charged employers with preserving and protecting data in the workplace. This advice is timely given that this week is Tax Identity Theft Awareness Week, a time when employers are reminded to safeguard employee social security numbers to reduce identity theft risks. In other news, we've provided links below to the top 10 electronic discovery developments and trends from the past year. At the top of the list are the growth of Bring Your Own Device (BYOD) policies in the workplace and how work-related text messaging is causing courts to require employers to preserve ...

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

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Another new year has arrived.  Perhaps you have promised to make it a year of getting organized, getting fit, or giving more to charity.  On the technology front, social media is promising to make it a year of evolving workplace privacy law.  Legislative bodies, courts, and administrative agencies are expected to consider a number of interesting legal issues, such as employer access to employees' or applicants' social media and email accounts, administrative agencies' access to employers' email servers, and employees' rights to communicate online about their terms and conditions of ...

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The holiday season is a time for reflection, including reflection on our technology habits. Many individuals are aiming to be truly home for the Christmas holiday by engaging in digital detox plans and setting their smartphones and other mobile devices aside to spend time with family and friends. Disconnecting from workplace technology during non-work hours is also becoming a trend at other times of the year, and many employers are encouraging this trend. Another take-away from this holiday season may be to reflect on what your shopping habits can teach you about hiring ...

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Your company holiday party can be added to the list of things impacted by technology. In addition to the risk of alcohol-induced harassment, injuries, or property damage, employers should be mindful that technology and mobile devices permit employees to easily broadcast holiday party activities through social media. Of course, company parties are not the only thing changed by technology in the workplace. Technology has also transformed workplace communication, and, to make this a positive change, employees must use the right technology in the right ways. Outside the ...
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You may have thought you'd seen it all, but technology continues to change the world, the law, and the workplace. The headlines were abuzz this week with Amazon's announcement that it will soon be ready to use drones to deliver packages within 30 minutes of an order. However, the announcement has produced skepticism based on logistical and legal barriers. In other news, the U.S. Court of Appeals for the Ninth Circuit will become the first federal appeals court to live stream oral arguments in all en banc cases starting this month. In the workplace, employers are looking for ways to use ...
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Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the ...
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As turkeys and pumpkin pie ingredients fill grocery carts across America, employee privacy issues fill the workplace.  A recent survey shows that younger employees, ages 18 to 25, are more concerned about their privacy in the workplace than their older counterparts.  Meanwhile, some employers are beginning to use surveillance cameras in the workplace to improve safety and efficiency, the way coaches use game film to improve their sports teams performance.  But, back to Thanksgiving.  In the holiday spirit, were providing you information about apps to help you stuff ...
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This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance.  The product includes two data folders - one for business data and one for personal data so that businesses and workers have the ability to segregate digital work and personal data.  The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators.  ...

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This week brought some protection for employees in their use of work computers and social media.  The en banc Ninth Circuit ruled that employees who violate an employer's computer use policy do not commit a federal crime under the Computer Fraud and Abuse Act.  But employees should take note that the circuits are split on this issue.  The Maryland legislature also sided with employees by becoming the first state to pass a bill banning employers from requiring social media passwords.  The bill currently awaits the governor's signature.
Technology and the Workplace
9th Circuit Narrows ...
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As the law attempts to keep up with technology, judges often must draw difficult lines concerning social media and individual rights.  A recent ruling by an NLRB administrative law judge held that a provision in an employer's social medial policy prohibiting any online commenting on work-related legal matters was too broad.  However, the judge upheld another portion of the policy prohibiting unapproved posting of photos showing employees in uniform.  A Washington case asks whether an employer engaged in disability discrimination when it fired an employee after ...
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Earlier this week, Sam Diehl wrote a posting, titled "Gimme Your Password," about employers' practices of requiring applicants or employees to hand over their social media passwords.  As the week progressed, discussion of the issue extended beyond legal and HR departments.  The media, Congress, and even Facebook itself joined in the dialogue.  And as if Facebook wasn't stirring up enough controversy, a new app lets you create enemies rather than friends.  
Technology and the Workplace
Facebook Password Amendment Rejected by Congress (PCWorld) (CBSNews)
Facebook to Employers ...
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This week we have six articles involving social media.  Fittingly, one of them asks whether we are all making too much of social media's impact on the workplace.  Serving as an example of social media's impact, a recent survey shows that nearly half of employers conduct social media background checks.  And a New York Times article provides an interesting look at the unique considerations on Wall Street concerning employees' use of social media.
Technology and the Workplace
Is Too Much Being Made of Social Media's Impact on the Workplace? (Conn.EmploymentLawBlog)
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This week, technology came with a cost, causing employers to face liability and employees to face job-loss.  A California court held an employer liable for employees' harassing off-duty blog posts.  A North Carolina steakhouse fired a waiter after he posted a photo online showing a generous tip left by Peyton Manning.  A Minnesota school also faces liability for forcing a student to surrender her Facebook password.


Technology and the Workplace
Off-Duty Blogging Creates Employer Harassment Liability (LawfficeSpace)
Steakhouse Waiter Fired for Showing the World What a Great Tipper ...

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This week featured the ongoing battle surrounding technology, the workplace and privacy.  Employees of the Food and Drug Administration sued the agency over its surveillance of their personal e-mail.  A New York judge overturned a teacher's firing that was based on a Facebook posting expressing the wish that her students drown.  Despite the conflicts, a recent report predicts that fewer companies will block social media sites in the workplace by 2014.



Technology and the Workplace
FDA Staffers Sue Agency over Surveillance of Personal E-mail (WashingtonPost)
Companies Opening ...

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This week technology is once again getting people in trouble.  Legislators are concerned with employers' practices of requiring access to employees' social media accounts.  A federal judge has reported himself for ethics review after admitting to sending a racist email.  Some commentators are speculating that Pinterest users could be held liable for their pins.  Check out the links below to make sure technology doesn't get you into hot water.
Technology and the Workplace
Legislators Concerned About Monitoring of Employee, Student Social Media (SoMdNews)

Keeping an Eye on ...

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This week technology once again helped and hurt the workplace.  Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web.  Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you.  Plus, rumors are circulating about Microsoft Office on the iPad.  Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.

Technology and the Workplace
Should You Send That Email? (FastCo)
Your Facebook Profile Can Predict Your Job ...

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This week both Washington and the workplace paid close attention to technology.  Congress plans to approve a bill that will auction public airwaves in order to help cover the payroll tax cut extension.  The Federal Trade Commission called for better privacy notices for apps directed at kids.  App developers came under scrutiny by members of Congress after reports that many developers were gathering information from phone address books without the owner's knowledge.  And workplaces are realizing how mobile technology saves both time and money.
Technology and the Workplace
Why ...
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Love is in the air this week as Valentine's Day approaches, and technology is in the news as it continues to impact and influence the development of the law.  A Senate committee approved a bill this week that would allow television access to Supreme Court proceedings.  A Texas court upheld the use of a defendant's MySpace page as evidence in his murder conviction.  The country of Brazil filed suit against Twitter to try to block accounts that warn drivers of speed traps and roadblocks.  And just as the law has collided with technology, Cupid's arrow has struck mobile devices everywhere ...

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This week two events have dominated the Web:  Facebook filed for a $5 billion initial public offering, and the New York Giants and New England Patriots are preparing to face off in Super Bowl 46.  But don't get so caught up pondering Mark Zuckerberg's net worth that you overlook the other stories this week concerning technology, the law, and the workplace. Get up to speed on all of it and then pick out your favorite apps for Sunday's big game - the kind for your phone, not your stomach. 
Technology and the Law
Facebook Files for $5 Billion IPO (CNNMoney)
Google Defends Privacy ...
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This week privacy and technology collide once again.  On Monday the Supreme Court unanimously ruled that the use of a GPS tracking device placed on a suspect's car constituted a search under the Fourth Amendment.  The FBI indirectly announced plans to monitor social networks when it requested information from contractors who might want to build the monitoring system.  But perhaps the largest privacy concerns this week have come from Facebook's announcement that its Timeline format will soon be mandatory.  So once you finish reading the links below, get a plan ...
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This week was nothing short of historic in the context of technology and the law. Wikipedia, Google, and others blacked out or censored their sites in protest of anti-piracy bills in the House and Senate.  Apple unveiled technology that could change the world of education.  Facebook introduced new apps that help users share even more information about themselves - yes, apparently it is possible. 
Technology and the Law
Internet Blackout Causes 18 Senators to Flee from PIPA (Forbes) (NYTimes) (FastCo)
U.S. Shuts Down MegaUpload, Charges Kim Dotcom, 6 Others with Piracy ...
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This week, instead of looking back, we look ahead to the new year. We certainly expect fascinating court decisions about technology and the workplace.  Employers and employees are keeping in line with the New Years theme of self-improvement by using technology to make themselves and their workplace more efficient.  And new technology is helping individuals achieve their 2012 goals, from weight loss to learning a musical instrument.  So click away and be inspired to make 2012 the best yet.


Technology and the Law
Can a Court Make You Give Up Your Password? (ABC News)
New Fight Breaks Out ...

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