Menu
Blog Banner Image

The Modern Workplace

The Modern Workplace

Posts in Privacy & Information Security.
The beginning of a new year is a good time for employers to consider reviewing and possibly revising any non-compete and confidentiality agreements in place for their workforce or to consider putting such agreements in place. Generally, courts look more favorably upon the enforcement of confidentiality agreements than on non-compete or non-solicitation restrictions and all are subject to state law, as discussed more below. It is also possible that the federal law landscape on non-compete agreements might change significantly under the new administration of President Biden
Email LinkedIn Twitter Facebook
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
Email LinkedIn Twitter Facebook
In the past week, I have been involved in two situations in which an employer received a cease and desist letter from a potential competitor. The employers had hired employees away from the potential competitors and were then notified by the potential competitors that the employees were subject to various restrictive covenant obligations. The potential competitors letters made various demands regarding the restrictive covenants and restrictions to be placed on the employees activities.

As many of you know, restrictive covenants prevent employees from engaging in various types ...
Email LinkedIn Twitter Facebook
Lawsuits involving claims for misappropriation of trade secrets are continuing to trend upward, even in an era when litigation as a whole is believed to have decreased. At a time when companies most sensitive confidential and proprietary business information is becoming ever more digitalized and thus easily transportable all employers should maintain vigilance in protecting their crucial business information. Not surprisingly, a significant amount of trade secret litigation involves situations where former employees accessed company information before their ...
Email LinkedIn Twitter Facebook

The NCAA Men's and Women's Basketball Tournaments start this week. While these exciting college sports events bring exciting comebacks, underdog wins, and pride in employee alma maters, they also can usher in several weeks of reduced productivity, potentially contentious employee interactions, and believe it or not - legal risk.

In 2016, 70 million tournament brackets were completed, many of which involved office pools. The first round of March Madness reportedly costs employers an estimated $4 billion in lost productivity. As part of this decreased productivity, employers ...

Email LinkedIn Twitter Facebook

Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.

According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...

Email LinkedIn Twitter Facebook
The Federal Defend Trade Secrets Act (DTSA), which was featured in our blog post last week, was signed into law by President Obama on Wednesday, May 11, 2016. As discussed in last weeks post, this important new federal law offers another avenue for employers to protect their valuable trade secrets. The DTSA creates two significant benefits for companies: (1) consistent and uniform law nationwide; and (2) guaranteed access to federal courts. It also provides for injunctive relief and additional monetary remedies. Now that the DTSA has been signed into law, companies seeking the ...
Email LinkedIn Twitter Facebook
After several years of consideration, the U.S. Congress has finally passed legislation that will create a federal statute for the protection of trade secrets, entitled the Defend Trade Secrets Act (DTSA). The DTSA had strong bipartisan support, passing in the Senate by a vote of 87-0 (on April 4) and passing by a vote of 410-2 in the House of Representatives (on April 27). President Obama has previously indicated that he will sign the legislation into law and that action is expected to occur soon. With its enactment, the DTSA will represent the first federal law protecting companies ...
Email LinkedIn Twitter Facebook
Workplace wellness programs continue to grow in popularity, despite being an enforcement target of the Equal Employment Opportunity Commission (EEOC). We have previously posted some updates on the evolving law and regulations in this arena, as well as some compliance recommendations.

Some popular wellness program features include financial incentives, disincentives, and data mining. According to some sources, more than a third of U.S. employers use financial incentives to encourage employees to participate in wellness programs. In addition, data mining and use of big data ...

Email LinkedIn Twitter Facebook
The National Labor Relations Board (NLRB) has once again entered the confusing and inconsistent intersection between our technological ability to record almost anything and the rights of employers to restrict recordings in the workplace (the Gray Zone). (See our prior discussion about this topic in 2013). In a recent decision, the NLRB struck down a Whole Foods workplace policy banning employees from recording conversations or taking photographs in the workplace without approval.

In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...

Email LinkedIn Twitter Facebook
As we begin December and head into the end of another year, our thoughts often turn to giving.  But, unfortunately, it is also a time when employers should give some thought to taking e.g. the possible theft of confidential business information.  It is common for employees considering career changes, whether taking a job with a competing company or starting their own business, to make that move shortly after the start of a new year (oftentimes sticking around long enough to receive year-end bonuses).  And, an all too common first step to those career moves can include the gathering of ...
Email LinkedIn Twitter Facebook
Even for employers with the best of intentions, workplace wellness plans carry risk. We have previously posted about some of the perils and pitfalls that can result from corporate efforts to help employees stay well. We also wrote about a local company that found itself in the Equal Employment Opportunity Commissions (EEOC) crosshairs because of its wellness plan.

After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations ...
Email LinkedIn Twitter Facebook
A recent court order in a case in Iowa reminded me of how easy it is for employers to waive the attorney-client privilege by disclosing (deliberately or inadvertently) the advice they receive from their attorneys. The order shows that a careless reference indicating that a decision was based on the advice of counsel opened the door and required the disclosure of conversations between the attorney and the client. Whitney v. Franklin General Hospital (U.S. District Court for the Northern District of Iowa, Ruling on Motion to Quash, April 23, 2015).
One of the oldest recognized ...
Email LinkedIn Twitter Facebook
Employers should be aware of recent federal agency activity that may require modifications to employee confidentiality agreements. The federal Securities and Exchange Commission (SEC) issued a press release on April 1, 2015, trumpeting the SECs first enforcement action against an employer based upon the company's use of confidentiality agreements for its employees that included improperly restrictive language. In its press release, the SEC announced that KBR Inc., a Houston-based technology and engineering company, had entered into a settlement agreement with the SEC ...
Email LinkedIn Twitter Facebook
The federal National Labor Relations Board (NLRB) is at it again. This time, the Boards general counsel has issued a March 18, 2015, Report Concerning Employer Rules. The Report is a detailed document setting forth the NLRBs position on the types of employee handbook policies that comply with or run afoul of Section 7 of the federal National Labor Relations Act (NLRA).  Under Section 7, all non-management employees have a legally protected right to engage in group activity aimed at improving their terms and conditions of employment. Many employers are surprised to learn that ...
Email LinkedIn Twitter Facebook

It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.

The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to ...

Email LinkedIn Twitter Facebook
For the uninitiated, Dropbox and other similar tools such as SkyDrive, Google Drive, or Cubby allow a user to log in to an account, upload documents or files to the cloud, and then access or download them from any device, anywhere at any time. Users can sync folders across devices and share or sync files with others.
 
Chances are, more than a few of your employees have discovered the ease and utility of cloud-based storage and file sharing tools. They are incredibly useful. But, along with the upsides that these tools offer like increased efficiency and team collaboration they also ...
Email LinkedIn Twitter Facebook

In our modern, ever-electronic, workplace, it continues to become ever-easier for dishonest employees to help themselves to their employers most sensitive and valuable assets through wholesale electronic copying of confidential, proprietary, and trade secret information. A recent example is a case of a former employee of a large medical device company who was recently indicted for criminal charges for stealing, via a thumb drive, the company's trade secrets regarding the design of a balloon-catheter system. According to the indictment, the employee then left his ...

Email LinkedIn Twitter Facebook

Some popular online services made legal headlines this week. After years of litigation, a federal appeals court held that Yelp did not extort businesses by manipulating user reviews to coerce advertising purchases. While Yelp still faces other legal claims for false advertising and securities fraud, this case is significant given that Yelp's handling of user reviews has been widely criticized.

While Yelp was presumably busy celebrating good news, the ride-sharing service, Uber, received bad news on its efforts to expand its services overseas. A German court banned Uber's ...

Email LinkedIn Twitter Facebook
Significant electronic data breaches made headlines again this week. Supervalu announced that millions of customer credit card numbers were stolen at various stores. In addition, one of the nations largest hospital chains - Community Health Systems - announced that the personal data of up to 4.5 million patients was taken when hackers bypassed the company's security measures. These latest breaches come at a time when a private research report is indicating that the medical sector has had more data breaches in the last two years than military and banking sectors combined. As we've ...
Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 citizens 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 ...

Email LinkedIn Twitter Facebook
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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

Confidentiality clauses are a standard provision in most agreements settling an employment dispute. Last week, a former preparatory school administrator learned the hard way that these provisions matter to employers and that violating a confidentiality clause can be costly.

An appeals court in Florida ruled last week that a Facebook post made by the former school administrators daughter violated the confidentiality clause in his settlement agreement with his old employer. As a result, the former administrator forfeited $80,000 of his settlement. 

The former ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook

Target Corp's data breach has been big news this holiday season, with as many as 40 million holiday shoppers across the nation exposed to potential credit and debit card fraud. According to the Identity Theft Resource Center, which tracks U.S. data breaches, the Target breach was one of over 600 data breaches in 2013. In our increasingly digital world, data breaches are a growing risk with many potential causes, including system failures, human error, employee misconduct, or outside theft. 

In the wake of the Target incident, many companies will be setting a 2014 new years resolution ...
Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook

A recent trial experience provided an extraordinary lesson on the significant legal exposure employers face when hiring away employees from a competitor. I recently completed a jury trial in which my client obtained a $22.7 million verdict against a competing company that had hired away two of my clients employees who had secretly taken numerous computer files belonging to my client and then used them for the benefit of their new employer. Although there ended up being many actions of the new employer to criticize, I believe that the most egregious one was the new employers failure to ...

Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook

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.  ...

Email LinkedIn Twitter Facebook


From communication methods to office space, technology continues to affect workplace norms. During the week of November 4th, for instance, the U.S. Supreme Court heard oral arguments in a case involving the line between technological gear and clothing in the workplace. In the case, steelworkers are seeking to be paid for the time spent putting on flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. Under the federal wage and hour law, an employer must pay employees when they engage in a ...

Email LinkedIn Twitter Facebook

The internet can be an invaluable work tool, providing ready access to information and resources essential to getting a job done. The internet can, however, also be a huge distraction, cutting into productivity both at and away from work. For instance, this week a study showed that [f]or every minute that [we] spend lazing on the computer, Americans spend approximately 16 fewer seconds working, seven fewer seconds sleeping, six fewer seconds traveling, four fewer seconds doing household chores, and three fewer seconds educating themselves. Spending time on the computer also means ...

Email LinkedIn Twitter Facebook

This week, as we celebrated National Boss Day, many people reflected on their relationship with their boss. Technology can sometimes challenge this relationship, for example, when employees have bosses that love email and refuse to communicate or manage an employee face-to-face. Another highly debated topic is whether bosses and subordinates should friend each other on social networking sites. Technology impacts these boss-subordinate relationships, but also the broader relationship between a company and its employees. For instance, recent court cases examined ...

Email LinkedIn Twitter Facebook

New federal and state laws are continuing to impact our relationship with technology and online resources.  This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal ...

Email LinkedIn Twitter Facebook

Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.

 I recently read one of those decisions. In my frustration over the avoidable bad facts of the case, I had to draft this post. The decision, Lazette v. Kulmatycki, was ...
Email LinkedIn Twitter Facebook

This week, everyone seemed to have an opinion about Apples new iOS 7 software for iPhones whether they loved its new features or were frustrated that it took too long for data to download. While many people were absorbed in their phones, social media also reached another milestone. For the first time, research displayed on the Tumblr website was cited in an amicus brief to the U.S. Supreme Court. Elsewhere, an investigation by the New York Attorney General revealed that many of the reviews on websites such as Yelp are fake. Nineteen companies that have been found responsible for arranging ...

Email LinkedIn Twitter Facebook

Last week, this blog featured posts about the growth and reported benefits of workplace surveillance, as well as some of the legal risks that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs designed to detect theft, cyberloafing, or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve ...

Email LinkedIn Twitter Facebook

It is so easy to press that like button on a Facebook post by your best friend, your coworker, or your favorite company. In that quick second, it is unlikely that a person could contemplate all the potential legal and Constitutional issues that may be wrapped up in such an action. This week, however, the Fourth Circuit Court of Appeals held that liking a Facebook post is Constitutionally-protected Free Speech. In the case, six employees were fired after they supported a candidate for sheriff by liking him on Facebook. The Court found that liking him was equivalent to showing political ...

Email LinkedIn Twitter Facebook
Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 
Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether ...
Email LinkedIn Twitter Facebook

A couple of recent articles in the New York Times and The Atlantic magazine caught my attention. Although the articles are from very different perspectives, both articles made me think about dishonest employees and how employers deal with them. 

Lets start with the basic principle addressed in TheAtlantic article. The author points out that most of us lie. Apparently, Americans lie about 1.65 times per day. Nonetheless, lying is the most disliked among the 555 personality traits ranked in a recent survey.   
In the modern workplace, employers need to keep employees honest hasnt ...
Email LinkedIn Twitter Facebook

This week, people around the world remembered the anniversary of 9/11, and President Obama continued to contemplate actions against Syria. Even passive users who may not read the newspaper experienced these events through technology and through hashtags like #neverforget or #syria. Also this week, in the midst of somber news and remembrance, a distraction emerged in the form of two new iPhones featuring new colors and fingerprint identification technology. For every new form of technology, however, there is also a spate of new lawsuits. This week, for example, a U.S. district ...

Email LinkedIn Twitter Facebook
This week, Labor Day and National Payroll Week served as good reminders that our post-recession economy is different and the way people work within it is also different. Although the number of jobs has grown, part-time work is becoming the new normal, and virtual work meant that some labored even in the midst of their Labor Day barbecues. National Payroll Week celebrated wage earners and payroll professionals, while polls show that the payroll-to-population employment rate fell in August, and the number of households with union members continues to drop.
 
This changing nature of the ...
Email LinkedIn Twitter Facebook
Not too long ago a discussion about face recognition technology sounded like something straight out of a futuristic spy thriller. Today, such technology is well into development. The Department of Homeland Security is testing a crowd-scanning program that will allow it to identify the faces of people on the terrorism watch list. In addition, corporate training courses are developing scanning software to detect when trainees are distracted. The technology tracks the users eye movements and when it detects the user looking away for more than a few seconds, it pauses the program and ...
Email LinkedIn Twitter Facebook

This week, as in many past weeks, a lot of media attention has been paid to privacy: creating it, protecting it, and invading it. Employees are reported to have been fired or disciplined for recording, revealing or posting the wrong thing. Hackers are worried about government surveillance of their activities, while homeowners are worried about hackers infiltrating their home security systems. Electronic health information systems create new opportunities for health-enhancing information sharing, while simultaneously creating risks to patient privacy and safety ...

Email LinkedIn Twitter Facebook

 Attorneys often counsel and represent clients as they deal with the consequences of their online misdeeds. This week, for example, a fired employee sued his former employer, claiming that his co-workers shocked him with a Taser and posted a video of the Taser session on YouTube. Sometimes it is the attorneys themselves who get into online trouble, and who face discipline for their conduct. It was reported this week that one attorney was disciplined after hacking into a fellow attorneys email account, and another attorney was suspended from the practice of law for five years after ...

Email LinkedIn Twitter Facebook
A recently-surfaced Advice Memorandum from the National Labor Boards (NLRBs) Office of the General Counsel opined that an employer social media policy prohibiting employees from photographing or video recording the employers facility unlawfully interfered with employees Section 7 rights. Before you run to revise any policies with a similar prohibition, we encourage you to take a deep breath and consider the consequences.
Many employers serve vulnerable populations, such as the elderly, the intellectually disabled, or those with mental health disabilities. In these ...
Email LinkedIn Twitter Facebook


 Some people spend more time with their smartphones than with their friends. This attachment to technology has a number of implications, and not just for a persons social life. This week the Fifth Circuit Court of Appeals held that the government can compel a cellphone company to turn over phone location data without establishing probable cause. The court found that location data was admissible as a business record. Elsewhere, Justice Department lawyers asked the Supreme Court to consider a First Circuit Court of Appeals decision that held that police need a warrant to search the ...

Email LinkedIn Twitter Facebook


As Edward Snowden continues to seek asylum, privacy issues remain center stage in the world of technology. Universities are rethinking their network security as they face cyberattacks from around the world. The University of Wisconsin, for example, receives almost 100,000 hacking attempts a day from China alone. Yahoo also won a privacy battle this week. In 2008, it filed objections to the NSAs program which required Yahoo to release user data without a warrant, and this week the Foreign Intelligence Surveillance Court declassified Yahoos 2008 briefing, shedding light on its ...

Email LinkedIn Twitter Facebook

When news broke about the NSA surveillance program, privacy became a hot topic. This week, the debate about how to maintain privacy in the digital age continues with Facebook's recent release of its Graph Search function to the general public. Seemingly inconspicuous information on a Facebook user's profile can now be quickly and easily pulled up in a public search. While the implications of this function are yet to be seen, it will likely create an additional wrinkle in how employers respond to employee social media use.

Other technology news this week focused on the interaction ...

Email LinkedIn Twitter Facebook
This week, technology is affecting how we do business, how we plan for the distribution of property at death, and how we enforce the laws. Nevada is the latest state to adopt a social media privacy bill. Businesses are harnessing the power of social media and on-the-go apps, and a new start-up is helping connect foreign farmers to the market place. An Ohio judge upheld the validity of a will that was written and signed on a tablet, finding that it met the state's legal requirements. At the intersection of technology and law enforcement, Montana became the first state to require police to ...
Email LinkedIn Twitter Facebook

Four different kinds of employees are causing employers grief in the modern workplace this week.

The Workaholic: while employees' constant connection to work via smartphones may seem like a great thing, employers need to ensure that they are following wage and hour laws in compensating employees for this time. The California Public Agency Labor and Employment Blog explains how after-hours, work-related smartphone usage can get employers into trouble if they are not careful.

The Troublemaker: in a recent NLRB memo, the Board found that an employer could legally terminate an ...

Email LinkedIn Twitter Facebook


There was a little something for everyone in this week's technology developments. Colorado adopted a social media workplace privacy law, joining 13 other states with similar laws that limit employers' access to employees' passwords and other personal data. Privacy doesn't fare so well, however, according to new reports that forensic examiners have increased their ability to recover all kinds of things cell phone users thought were "deleted," including incriminating pictures taken with the Snapchat app. All sorts of workplaces are now able to accept mobile payments, which is a ...

Email LinkedIn Twitter Facebook

Don't text a texter -- at least not one who's driving. A New Jersey court of appeals is currently considering whether a young woman who texted an individual she allegedly knew was driving could be held liable for the damage arising out of that distraction. If this theory succeeds, it could give employers one more thing to worry about, and may affect how employers communicate with traveling employees. While not illegal yet, it's still a good idea to avoid texting employees you know are driving, especially considering the costs to employers of distracted driving. Better yet, have your ...

Email LinkedIn Twitter Facebook

Another week passes, and another social media password protection law has been enacted. Arkansas is the latest state to ban employers from obtaining workers' social media login information.

 The NLRB has also been busy dealing with social media issues. In a recent decision, an ALJ found that the University of Pittsburgh Medical Center's social media policy violated Section 7 of the NLRA because it prohibited employees from describing any affiliation they had with their employer in their social media posts. In another case, the Board ruled that Bettie Page Clothing violated Section 8 ...

Email LinkedIn Twitter Facebook

The dance between cybersecurity proponents and privacy rights advocates continues. Today, the U.S. Senate Committee on Commerce, Science, and Transportation announced that the Senate will not take up the House version of the Cyber Intelligence Sharing and Protection Act (CISPA). Picking up on some of the public's criticism of the bill, a Senate spokesperson expressed concerns that the House version does not provide sufficient privacy protections. The Senate will be drafting its own version of the cybersecurity bill.

Employers may want to keep an eye on how this legislation ...

Email LinkedIn Twitter Facebook

 I can invade your privacy; you just cant invade mine. It seems like everyone wants to use the latest and greatest technology, but no one wants to suffer the consequences when that same technology is used in ways that harm their interests. Workers want to use social media to have their say about bad bosses, lousy customers, or unfair rules, but don't like it when their employers see the results and react badly. Employers want to protect their businesses and customers from the comments of employees, but also want to use technology to catch employees engaging in all kinds of bad behavior. This ...

Email LinkedIn Twitter Facebook

This week, employers were reminded of some of the perils of going digital, including increased vulnerability of confidential information. Three different companies experienced three different types of a data breach. Merrill Lynch claims its information was breached by two former employees who used their company passwords to steal customer contact information in an attempt to get the customers to leave with them. Winn-Dixie was caught up in litigation after a class of employees discovered that their personal employee data was improperly accessed through the company's employee ...

Email LinkedIn Twitter Facebook

Many employers experience frustration and challenges when trying to obtain meaningful background check information. The cost to replace a terminated employee is high, and can add up quickly for an employer in a high turnover industry such as retail. Employers are wise to develop strategies, tools and resources that help them to recruit qualified workers who will be loyal and trustworthy employees. Background checks are common, and most employers rely on outside vendors to do them. Background check vendors - companies that specialize in gathering and reporting on criminal ...

Email LinkedIn Twitter Facebook
This was a good week for employers to pay attention to the news about technology and social media. There were a number of important developments that may impact how investigations of applicants or employees are performed.


Utah joined the growing number of states that have passed a ban on employers accessing employees' social media accounts. Washington is debating a similar bill; its version, however, has an exception that would allow employer access during a company investigation. In a similar vein, employers using employee-theft-tracking databases to screen potential hires may ...

Email LinkedIn Twitter Facebook

With more and more of our lives occurring online, it is often difficult to keep sensitive information private. This week, there are indications that this task is not likely to get easier anytime soon. There has been an uptick in hacking activity on many fronts. On the employment front, an ex-Reuters employee is facing federal charges for giving the hacking group "Anonymous" a username and password to access the company's system. If convicted, the employee could be imprisoned for up to 30 years and be fined up to $750,000. On the election front, a recent grand jury report shows that a ...

Email LinkedIn Twitter Facebook

In the news this week has been a story about a decision by a university to search email accounts of several staff members in an effort to determine the source of a leak to the media. Like many employers, the University did not seek the employees permission before reviewing their emails. The employees whose emails were reviewed were not aware of the University's actions until earlier this month. 

The fallout from this incident is a good reminder that employers and employees may have very different expectations regarding emails and other electronic information stored on the employers ...
Email LinkedIn Twitter Facebook

Variety is the spice of life, even when it comes to the legal implications of technology. This week offers a good illustration of the many different areas of the law that technology can impact. Here are some current examples:

Employment Law: A New Mexico judge who violated the court's computer and Internet use policy with his "excessive and improper" instant messaging during court proceedings was forced to resign. A Penn admissions officer who shared on Facebook snippets of admissions essays has sparked debates about online sharing of employment information.

Securities Law: The ...

Email LinkedIn Twitter Facebook

We hear a lot about individuals' social media accounts getting hacked, but the events of this week remind us that company social media accounts are vulnerable as well. The Twitter accounts of both Burger King and Jeep were broken into and changed. Burger King's profile picture was changed to a McDonald's logo, and the account tweeted that McDonalds had bought Burger King. Jeep's account was changed to look like it was a page for Cadillac and to state that Jeep had been sold to Cadillac because it caught its employees doing pain medication in the bathroom. Both accounts appear to have been ...

Email LinkedIn Twitter Facebook
As they do with Valentine's Day, many people have a love-hate relationship with technology. They love it when it's good to them and hate it when it burns them.

This week, both individuals and companies alike felt some pain as the result of their love affair with technology. A Michigan nurse and a Washington barista both lost their jobs because of over-sharing on social media.  The nurse was fired for FMLA fraud after the hospital where she worked saw Facebook pictures of the Mexican vacation she took while still on leave. The barista was fired for using his blog as a forum to insult his ...

Email LinkedIn Twitter Facebook

I don't know if it's the cold, long winter we've been having, or just the increasing popularity of social media, but this week has been chock-full of internet-induced workplace drama. Take for example, the Applebee's server who was fired after posting a picture of customer's receipt on Reddit. The customer happened to be a pastor whose large dining party had incurred an automatic gratuity charge. He crossed out the added gratuity and wrote "I give God 10%, why do you get 18?" After the waitress shared a picture of the receipt -- signature and all -- with the online community, the pastor ...

Email LinkedIn Twitter Facebook
Have you heard the saying, "Drink more coffee, do stupid things faster with more energy?" Along those lines, I think the theme of this week's events is "Use technology, do stupid things faster with greater ease."
Example #1: the DNR employee who accessed more than 5,000 driving records without authorization. This could prove to be a costly mistake, because one of the data-breach victims has filed a potential class action lawsuit against the (now ex) employee, the DNR, the Department of Public Safety, and commissioners of those agencies.


Example #2: the HMV employee who hijacked the ...

Email LinkedIn Twitter Facebook

The 1st Amendment protects freedom of speech, but that doesn't mean that employees' speech is always protected from employment consequences. Case in point: the tenured New Jersey first-grade teacher fired for referring to her students as "future criminals" in a personal Facebook post she wrote at home in her free time. The teacher challenged her termination on 1st Amendment grounds and appealed to the New Jersey Court of Appeals. The court recently rejected the 1st Amendment claim, finding that her "personal dissatisfaction" with her job did not address a matter of public ...

Email LinkedIn Twitter Facebook

This week in three words: hacking, tracking, and attacking.

Hacking: as if worrying about having your cell phone or computer hacked wasn't enough, now recent research from Columbia University indicates that your office phone might also be at risk. The study discovered that at least 15 models of the Cisco Internet Protocol telephone have software that could enable a hacker to turn on a microphone, webcam, or other feature of the phone without the user's knowledge.

Tracking: a Texas school using Radio Frequency Identification chips to track its students may continue doing so after a ...

Email LinkedIn Twitter Facebook

This week, states across the country were determined to start off the new year with their best foot forward. High on their lists of priorities? Protecting the rights of online users. In Michigan, the Governor signed into law the Internet Privacy Protection Act, which made Michigan the fifth state (behind Maryland, Illinois, California, and New Jersey) to prohibit employers from requesting social media sign-in information from their employees. In Arizona, the legislature is considering a bill that would make it a felony to threaten, harm, or defraud someone through online ...

Email LinkedIn Twitter Facebook
Do you remember a few weeks back when Facebook was flooded with statuses claiming "copyrights" to users' content? While this hoax was quickly debunked, it left many concerned about what social media can -- and does -- do with the stuff we put online. This week, Instagram fueled the fire when it announced its new terms of use, which allows the company to sell users' photos and keep the profits. The announcement immediately drew opposition, and a day later, Instagram promised to "modify" some of the terms, which are expected  to take effect January 16th. Whether these modifications will win ...
Email LinkedIn Twitter Facebook

Do you have a lot of travel plans for this holiday season? Whether it is for work or play, new developments on the technology front may make your trip more enjoyable -- and productive too, if you'd like. The FAA is in the process of updating its policies on in-flight gadget use. With encouragement from the FCC and many frequent fliers, it is possible the FAA will expand when and what devices may be used during air travel.

If your trip involves leaving the country, you're likely to appreciate the more permissive policies, especially now that three of the United States' largest airlines will be ...

Email LinkedIn Twitter Facebook

Usually, our Week in Review posts are full of examples of what can go wrong when employees use social media. This week, we can report a different kind of story. A group of women are harnessing the power of Twitter to promote positive change in the gaming industry. Using the hashtag #1ReasonWhy, these women are speaking out against what they describe as the pervasive culture of sexism in the gaming industry. The question of "why are there so few lady game creators?" has been answered by hundreds of industry professionals, including game developers, journalists, and others ...

Email LinkedIn Twitter Facebook

Happy Thanksgiving! I hope all of you out there are enjoying good food and even better company. But, in case you need a welcome distraction from intense family bonding (or Black Friday strategizing), here's what is new in the world of technology and the workplace:

In an EEOC sexual harassment suit against HoneyBaked Ham, Co., a district court judge has ruled that the plaintiffs must turn over their cellphones and social media passwords to a court-appointed forensic expert. This expert is charged with going through text messages and social media content to determine what is relevant ...

Email LinkedIn Twitter Facebook

It seems General Petraeus isn't the only one whose digital footprint has betrayed him. A whole host of other individuals' online antics have landed them in hot water this week. Waffle House Chairman, Joe Rogers, Jr. is also facing a sex scandal. His former housekeeper has come forward with sex tapes which she alleges are proof that she was sexually harassed. Rogers denies the harassment and says that he is being blackmailed. A district court has ordered that the tapes be impounded -- for now.

In Kentucky, a couple of Walmart employees were fired based on an internet video of them throwing ...

Email LinkedIn Twitter Facebook
Its hard to watch or read the news without being bombarded with the story of General Petraeus affair and resignation. The story has expanded beyond General Petraeus conduct to include allegations of inappropriate conduct by an FBI agent involved in the investigation (sending a shirtless picture of himself to Jill Kelley) and General John Allen (exchanging thousands of possibly "inappropriate" emails and other documents with Jill Kelley). As an employment lawyer, I'm continually amazed at the personal content that employees will send in emails and text messages, even from ...
Email LinkedIn Twitter Facebook

Does an employee who violates an employer's computer use policy also violate the Computer Fraud and Abuse Act? Depends on who you ask. The Fourth Circuit recently held that an employee cannot be held liable under the CFAA for such conduct, even if the employee was improperly using computer access to steal company data. There are a number of circuits that disagree, however. Now, WEC Carolina Energy Solutions, the employer in the Fourth Circuit case, is asking the U.S. Supreme Court to weigh in on the issue. Stayed tuned to see if the Court agrees to get involved.

Other news stories this week ...

Email LinkedIn Twitter Facebook

Do you feel like all you ever do is work? Odds are, your personal devices are contributing to that feeling. A recent study by a British tech retailer found that smart devices are adding, on average, an extra two hours of work a day. So while that constant connection may give some peace of mind, it's also likely to bring with it the inability to ever be "off-duty."

Given the large role technology plays in our lives, it is not surprising that governments around the country have been working to figure out how to appropriately balance its risks and benefits. On Friday, the New Jersey Senate passed a ...

Email LinkedIn Twitter Facebook
Using technology can come at a cost. You don't have to read too many of these Week in Review posts to know that it is not uncommon for individuals to be fired for inappropriate use of email, social media, cell phones, or other means of electronic communication.  Past stories have also shown how technology can cost someone their reputation, money, or freedom from incarceration. This week, we add two items to the list of things that technology can put at risk: unemployment benefits, and your health.
An employee in Pennsylvania was fired for criticizing his place of employment and coworkers on ...
Email LinkedIn Twitter Facebook
The Internet can be a great way for companies and professionals to market their products or services and bring in business. But lightning-quick global communication isn't always a good thing, especially when a dissatisfied customer is the one who is doing the talking. This week, a New York lawyer learned that responding to online criticisms may create more problems than it solves. After anonymously being called "the most unscrupulous lawyer" on a review website, the lawyer posted a response saying that he knew who wrote the comment and that the writer, a former client, was ...
Email LinkedIn Twitter Facebook

Is it just me, or has Wisconsin been in the news a lot lately? From politics to sports, the Dairy State has caught the interest of the nation. This week was no different. When a Wisconsin news anchor used air time to address an email that criticized her weight and accused her of being a bad role model, the clip went viral. National news outlets picked up on the story, the anchor appeared on major-network morning shows, and people around the country weighed in on the appropriateness of the email and the problem of cyberbullying in general. Despite the controversy, the email author is standing by ...

Email LinkedIn Twitter Facebook
It's official. In California, you may now eat, read, or even sleep while driving to work. That is, if you are riding in a self-driving car. On Tuesday, the California governor signed a law that permits and regulates the driving of autonomous cars on California roads. While some may be skeptical, Google co-founder Sergey Brin touts these cars as improving transportation safety, increasing mobility of persons with disabilities, and making commutes more productive. He expressed hopes that these cars will be on the roads in less than five years.


On the other side of the country, states are ...

Email LinkedIn Twitter Facebook
Having a rough week? Be thankful you aren't in the limelight, where technology is waiting to capture your every misstep. From Kate Middleton's topless photos to Mitt Romney's leaked fundraising remarks, nobody seems to be able to catch a break this week. Even Washington Redskins receiver Josh Morgan felt the Twitter-wrath of disappointed fans after his unsportsmanlike conduct penalty arguably contributed to the Redskins' 3-point loss on Sunday. But that doesn't mean these celebrities aren't fighting back. The British royal family has already mounted a privacy lawsuit against ...
Email LinkedIn Twitter Facebook

With a tough economy, efficiency and productivity are often paramount for keeping a business afloat. While technology has certainly aided that cause, it has also provided workers with many time-consuming distractions. The productivity-stealing culprits this week: fantasy football, flirty emails, and co-worker impersonation. Check out the links below to learn more about the cost and benefits of allowing fantasy football teams in the workplace and the potentially unexpected effects of using emoticons in office emails (hint: you may find yourself a new admirer).

Another ...

Email LinkedIn Twitter Facebook
The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality ...
Email LinkedIn Twitter Facebook

Oh, the joys of technology. It can keep you connected when you're feeling social or provide hours of solo entertainment when you're not. And with new apps coming out every day, it is easy to get lost in a sea of technologically-induced euphoria. But don't let your guard down too quickly, because events this week remind us that where there is technology, there likely is someone -- or something -- watching.

A St. Paul police officer and a Yahoo News reporter learned that lesson the hard way. The officer, who was caught on a bystander's cellphone kicking an arrested suspect, is facing an ...

Email LinkedIn Twitter Facebook
Here at the Week in Review, we've seen our fair share of bad employee decisions and the terminations that sometimes follow them. This week, workers around the country found themselves in a whole different kind of trouble for their unwise--and illegal--use of technology. In Texas, a teacher was sentenced to five years in prison for having sexual relationships with five of her students. The relationships began via text message and culminated in a cellphone recording of one of the sexual encounters. In Minnesota, a football coach is facing felony child porn charges after the ...
Email LinkedIn Twitter Facebook
As we recently noted, Illinois just became the second state to pass a law prohibiting employers from requiring employees or applicants to disclose their social media passwords. This appears to be the latest addition to a growing body of similar legislation, rather than an isolated action. The adoption of this law in Illinois quickly followed the enactment of the first such law by Maryland. Several other states, including California, Michigan, and New Jersey, have similar bills working their way through their legislatures. Additionally, the U.S. Congress continues to consider the ...
Email LinkedIn Twitter Facebook
The government has been working hard to protect online privacy this week. On the regulation side, yesterday the Illinois governor signed the "Facebook Law," making Illinois the second state to statutorily prohibit employers from compelling employees or applicants to disclose their social media passwords. Additionally, the FTC is working to increase online security for minors by proposing new data-protection rules.
Enforcement efforts are also being stepped up, with prosecutors around the country making examples of internet-using lawbreakers. In Texas, two ...
Email LinkedIn Twitter Facebook
While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company's obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a litigation hold letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they cant go shred a bunch of documents that might be relevant. What not everyone ...
Email LinkedIn Twitter Facebook

Reason number 999 why employers don't want their employees texting at work: it may lead to a very large fire. That is what happened when a New Hampshire civilian worker got an upsetting text from his ex-girlfriend while at work. He wanted to leave early, so he decided to set the dock of a nuclear-powered Navy submarine on fire. No one was injured, and no damage was done to the submarine -- this time. But, because he admitted to setting an earlier $400-million-submarine fire, he is now facing two counts of arson and the possibility of life in prison. Looks like he may be getting more time off from ...

Email LinkedIn Twitter Facebook

What do you get when you combine leaked photos, disgruntled employees, and a judge who is alleged to be watching porn? The answer: one heck of a Week in Review and a tale of multiple firings.

The leaked photo, which captured an employee of a Burger King restaurant standing in the restaurant's lettuce bins, appeared on the internet with the caption: "This is the lettuce you eat at Burger King." The employees involved were quickly fired once the franchisee that owned the restaurant was identified and contacted.

Two disgruntled Texas EMTs were also fired because they were involved in a ...

Email LinkedIn Twitter Facebook
For as long as I can remember, I have advised employers that they have a right to monitor employee electronic communications, including emails, if the emails are sent or received on company equipment or company time. I ask the client about whether or not they have a clear policy putting employees on notice that they have no expectation of privacy in emails or other online activity done at work or on work equipment. If such a policy is in place, the employer is generally free to monitor employee activities, with or without other advance notice. This can be important when ...
Email LinkedIn Twitter Facebook

This week, it's all about Facebook again. Except for the news about the Yahoo hack, you'll be hard pressed to find a technological tale that doesn't involve the social media giant. So here it is: the good, the bad, and the ugly of Facebook, all in one convenient location.

The good: the site continues to create useful apps. There is an anti-bullying tool tailored to help teens report harassing behavior, a price alert app that notifies you when items you Like go on sale, and a plan to launch a job posting board. With apps like these, who says time on Facebook is unproductive?

The bad: a yoga ...

Email LinkedIn Twitter Facebook

As America turns another year older this week, the government, just like its citizens, struggle to keep up with technological change. While the Executive branch and its agencies are embracing the crime-fighting advantages technology has to offer, the other two branches are pushing back. Legislatures in Delaware and Pennsylvania are working to protect the privacy rights of their citizens by enacting new social media laws. In New York, a judge showed that social media sites are not above the law by ordering Twitter to turn over subpoenaed Tweets of an Occupy Wall Street protester. With ...

Email LinkedIn Twitter Facebook
You can run, but you can't hide--not from technology anyway. Just ask the eight TSA agents who lost their jobs this week because a video camera caught them sleeping at work, or the Houston journalist who was fired after a rival newspaper exposed her secret stripping gig, or the Dallas police officer under investigation after his aggressive arrest was recorded by a motorcyclist's helmet camera. I guess if you can't fight the technological takeover, you might as well embrace it. Ready to give in? Check out the links below, including latest apps, which claim to save your life in times of ...
Email LinkedIn Twitter Facebook

This Father's Day, dads might have more to worry about than how to enthusiastically thank their children for yet another tie. News stories this week highlight the increasing vulnerability of today's youth in a technology-filled world. From cyberbullying to predator apps to camera phones in the locker room, parents around the country are wondering how to keep their children safe. Luckily, they're not alone. The law--and tech companies--are stepping in. The New York Legislature is working on a bill to fight cyberbullying, a Minnesota prosecutor is making an example of  teens who ...

Email LinkedIn Twitter Facebook

While the powers of technology often spell trouble for employers and employees, they sure do make for interesting Weeks in Review. And this week is no different. Drag-queen Facebook photos, surreptitious surveillance, and anonymous emails all led to employee terminations this week. Perhaps the most noteworthy is the Oklahoma publisher who fired 25 employees over an anonymous, company-wide email that spoke of alleged outsourcing and mass layoffs. Not knowing the exact source of the email, the owner fired those he thought might be involved. To make matters more ...

Email LinkedIn Twitter Facebook

As technology continues to change, so too do employers' efforts to keep up. With new laws preventing employers from using passwords to access employees' Facebook pages, employers are finding other ways to monitor employees' online activities.  A new Gartner report predicts that by 2015, 60% of businesses will be using Internet-monitoring technologies to monitor employees' social media use. However, employers must be careful in their quest to control online employee expression. This week, the NLRB issued a social media report cautioning all employers (even those ...

Email LinkedIn Twitter Facebook

This week, technology brings trouble for employees and students, but benefits for the government and its citizens. In Massachusetts, a firefighter's emails were used against him in a sexual harassment investigation. Nearby, a Rutgers student was sentenced to 30 days in jail for using a webcam to spy on his roommate, and a Boston University student's plea for the Supreme Court to review his $675,000 fine for illegally downloading music was rejected. The government, on the other hand, is using technology to solve--rather than create--problems. Federal agencies are using apps to ...

Email LinkedIn Twitter Facebook

Tired of hearing about privacy?  Perhaps you should avoid the news for a little while longer, then, because this week the war over online privacy heated up when Congress decided to join the fight. On Wednesday, the Password Protection Act of 2012 was introduced in the US Senate.  It seeks to prohibit employers from coercing prospective and current employees to provide access to any secured information stored online or from retaliating against employees' refusals to do so. An identical bill is being debated in the House. A California bill with the same aims unanimously passed the Assembly ...

Email LinkedIn Twitter Facebook
It has been less than 90 days since the Associated Press ran a story about employers requiring applicants and workers to provide their passwords to social media sites like Facebook, and now a new law makes this illegal. Maryland is the first state to enact a law making it unlawful for employers to ask applicants or employees to provide their log-in information.  Other states have similar bills pending.
In late April, the Social Networking Online Protection Act, or SNOPA, was introduced in Congress. If passed, this law would prohibit current and potential employers from requiring a ...
Email LinkedIn Twitter Facebook

Privacy is right on the tip of everyone's tongue again this week.  Delaware proposed its own Facebook privacy law for employers and employees that goes even further than Maryland's recent legislation and  the law currently before Congress.  The FCC released its full report on concerns with Google's gathering of data for their Street View feature on Google maps.  A court in the Eastern District of Virginia ruled that a Facebook "like" is not protected under the First Amendment.  Finally, the New York Times described how users can cover up their searching habits on the web.


Technology and the ...

Email LinkedIn Twitter Facebook

What would a Week in Review be without some Facebook controversy? No need to ponder that possibility too long, for this week brings us a whole variety of ways in which Facebook is getting people into trouble. In the working world, a Marine lost his job and benefits because he used Facebook as a forum to criticize his Commander in Chief. In Indiana, three eighth-grade girls got expelled for posting on Facebook which classmates they would like to kill.  In Georgia, two more middle schoolers are being sued for defamation as a result of their Facebook bullying. So remember, whether you are a ...

Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
All employers have had a request from a potential new employer for a recommendation about a prior employee. I use the term recommendation loosely, because often the potential new employer really wants to find out if there is anything wrong with the candidate they're considering. Providing information about prior employees, or even current employees, may create the risk of claims for defamation or create other types of liability. As a result, many employers try to limit their risk by declining to provide any recommendations for employees or former employees. Other employers modify ...
Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
The Associated Press reports that employers are increasingly asking applicants to provide their Facebook usernames and passwords during the hiring process.  While this practice may not yet be common, its interesting that a significant number of employers believe information available on an applicants semi-private Facebook page will be helpful in their hiring decisions.
From a legal perspective, its unclear whether this employer practice, standing alone, violates any legal rights.  If the practice becomes widespread, however, employees lawyers may want to challenge the ...
Email LinkedIn Twitter Facebook
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 ...

Email LinkedIn Twitter Facebook
If you know anything at all about the NFL, you know that Peyton Manning is one of the leagues great quarterbacks. What you may not know about Peyton is that he's a very generous tipper. Jon, a (former) server at the Angus Barn in Raleigh, NC, wanted the world to know. (Deadspin has the story here). Courtesy of Jon, a photo of Mannings restaurant receipt, showing an extremely generous tip, made it online. And now Jon, who obviously didn't think before he posted, provides a good example of why employers should educate employees on social media use and consequences.
Employees often fail to make a ...
Email LinkedIn Twitter Facebook
We communicate with our clients by email all the time. Email correspondence is the rule, not the exception, for lawyers and clients these days. We email back and forth about policies, practices, investigations, terminations, leaves, complaints, contracts, union activity, and all the other employment-related issues that we deal with. Sometimes these emails contain highly sensitive information about the employer or employee. Sometimes we discuss legal strategy. Most of the time, information we communicate electronically is information we would never want to share with ...
Email LinkedIn Twitter Facebook
For more than 60,000 workers in America, March 5-9 will be the week that the "modern workplace" is at home. This week is the second annual effort of Telework Exchange to encourage workers and employers to save time and resources through telework. Telework Exchange describes itself as "a public-private partnership focused on demonstrating the tangible value of telework..." and describes Telework Week as a "win-win opportunity for agencies, organizations, employees, and the environment."


By the end of last week, 62,322 employees had pledged on Telework's website that they ...

Email LinkedIn Twitter Facebook
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 ...

Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
Many companies purchase smartphones or cell phones for employees use, or pay all or part of their employees phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.
So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their ...
Email LinkedIn Twitter Facebook

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 ...

Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
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 ...
Email LinkedIn Twitter Facebook
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 ...

Email LinkedIn Twitter Facebook
Employee use of social media tools, such as an actively managed professional profile on LinkedIn, can be quite beneficial to the business interests of an employer.  As with many work-related innovations, however, sometimes there can be too much of a good thing.  Social media tools can be vehicles for serious harm to employers.  In particular, the use of social media sites by employees can lead to disclosure of a company's confidential business information, and may also provide significant opportunities for unlawful competition by employees.  These very real threats to an employers ...
Email LinkedIn Twitter Facebook
The controversy surrounding Carrier IQ software is evolving rapidly. Carrier IQ software is preinstalled on phones from AT&T, Sprint and T-Mobile. Its original purpose was as an analytic tool that would allow carriers to provide better service by recording dropped calls and instances of poor reception. However, the software apparently also records all of a phone's keystrokes. This gives rise to privacy concerns, and a suit has been filed by consumers under the Federal Wiretap Act. Additional problems such as hacking and identity theft are also being addressed in ...
Email LinkedIn Twitter Facebook
The recent, shocking news floating around Penn State University has understandably caused some employers to reflect on their obligation to report and take meaningful action in response to suspected criminal sexual activity.  Most states have statutes that establish when reporting of the abuse of a minor is required, but employers who do not serve or supervise minors may have little knowledge of mandatory reporting laws. Common law, which also varies from state to state, may create a duty of care for employers that requires reasonable attention to the safety and security of employees ...
Email LinkedIn Twitter Facebook
A recent article in the New York Times highlighted, yet again, the significant challenges faced by employers when they try to balance the possibilities of technology with the need to protect company data.  That article  discussed allowing employees to conduct company business through the use of their own personal computers and devices.  This development is being referred to as the consumerization of I.T.  In a nutshell, consumerization of I.T. represents a significant shift away from a closed technology system, in which an employer supplies all computers or other devices (such as ...
Email LinkedIn Twitter Facebook
Privacy is the issue of the week, as we attempt to keep up with a litany of exciting/alarming/fascinating developments.
One of the more interesting reads of the week is a blog post from the Harvard Business Review that describes the implications for employees, job seekers and companies of Facebook's newest feature, Timeline.  Timeline is Facebook's vehicle for creating a user biography in words, photos, video, music, etc.  How much of your biography do you want your colleagues to see?  A potential employer?  
In the European Union, plans continue to propose "right to be forgotten ...
Email LinkedIn Twitter Facebook
How do employees spend their time at work?  They perform work duties, of course, but a few other things as well.  For example, might they manage their fantasy football teams?  Sure.  According to the Fantasy Sports Trade Association, 32 million people play fantasy sports, the most popular of which is fantasy football.  Play games on their phones?  Yep, that too.  Surf the web?  You bet.  How concerned should employers be about their workers' time trolling the web and playing games?  While every employer should be very interested in what their employees do (and don't do)during work hours, a recent ...
Email LinkedIn Twitter Facebook
This week a story about workplace violence caught my eye.  More employers are turning to the use of technology--namely video surveillance cameras and similar high-tech security measures--to monitor employees and prevent theft and other kinds of misconduct.  Many employers have relied on this technology to successfully defend against claims of discrimination and wrongful termination when employees are caught on tape violating company policy or stealing.  But this story involves a twist.
In May, pharmacist Jeremy Hoven was working the overnight shift with three other employees at ...
Email LinkedIn Twitter Facebook
This summer the Office of Management and Budget (OMB) issued a memorandum to the heads of executive departments and agencies in the federal government about implementing security guidelines relating to the Telework Enhancement Act of 2010. It is a good reminder that, while there are lots of benefits to allowing employees to telecommute, employers need to be cognizant of protecting their systems and data from the risks associated with telecommuting.  It is also a good starting place for thinking about what should be in your policies and procedures.
In December of 2009, President Obama ...
Email LinkedIn Twitter Facebook
In this era of ever-expanding web-based presences for businesses and the increased use of social media sites for job-related reasons, it is becoming much more difficult for employers to protect their important confidential business information and  trade secrets. 
 Businesses have a lot to lose when employees misuse confidential information. If a customer list, the details of a proprietary product, or company financial information gets into the hands of a competitor, a business may lose its competitive edge or its best customers. On the other hand, failure to use the power of the web ...
Email LinkedIn Twitter Facebook

Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information.  But, do you really want to do that?

Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants.  Employers store everything from names to social security numbers to discipline data on electronic systems.


You may say, well that's just being efficient.  I'm all for efficiency, but employers need to be aware that they have to balance their need for information with the employees ...
Email LinkedIn Twitter Facebook
A recent survey suggests that a great many companies are using social media to screen potential hires.  In many ways this seems like a modern no-brainer.  Social media sites provide easily accessible insights into the personal and professional lives of people we don't know in ways that would have seemed unimaginable only a short time ago.  Of course, as discussed in some of our previous blog posts, there are legal risks in using social media to screen applicants and in making employment decisions.  Are you accessing data that you're prohibited from using in your decision-making ...
Email LinkedIn Twitter Facebook
As I personally lament Netflix's unbundling of its online services and its price hikes, it occurs to me that the price increase could be good news for employers at least those with employees who find it appropriate to watch TV shows and full length films on the job. A recent study conducted by Harris Interactive and Qumu revealed that 17% of those surveyed watch videos at work, consisting of, in order of the most viewed videos: news clips (25%), viral videos (15%), videos on social networking sites (12%), sports clips (11%), TV shows (9%), full length films (4%), and porn (3%).

The June 2011

Email LinkedIn Twitter Facebook

Data security breaches have been in and out of the headlines recently, and the Citigroup breach has once again brought the topic to the forefront.  This week, Citi announced that more customers than originally announced had information stolen by hackers.  All told, Citi reports that approximately 360,000 customer accounts were compromised.  Even more troubling, Citigroup does not even know how the computer breach occurred, only that it affected hundreds of thousands of its credit card customers by revealing names, account numbers, and contact information.

Although Citigroup may ...

Email LinkedIn Twitter Facebook

The recent attention given to Apples announcement of its iCloud internet-based online storage service is yet another indicator of the growing popularity of cloud computing, or using online data storage for files that can be accessed and managed anywhere using an internet connection. Instead of saving your files and data to your own device, you save them in a cloud, or web-based file cabinet. Google has offered this service to consumers since 2005 with its Google docs service. Now Apple is joining in, offering a free service that will basically allow users to mirror their iTunes ...

Email LinkedIn Twitter Facebook
The subject of employees' email privacy comes up a lot, both in this blog and in employment law and litigation generally.  Last week's Week in Review, for example, cited a federal court judge's decision that an executive's emails, sent to his wife from his work computer,  were not protected or privileged, and could be used as evidence in a securities fraud case.  Evidence gleaned from emails shows up in many, if not most, harassment cases, and emails are a common source of evidence about the legitimacy of an employer's "non-discriminatory business reason" for an adverse personnel ...
Email LinkedIn Twitter Facebook
Last week, I provided some training to a clients HR team on conducting investigations.  As we were working through some hypothetical situations, the discussion turned to accessing employees emails.  The group knew that their company's policy addressed accessing the emails of current employees, clearly warning company email is not private and that it could be accessed or monitored by the company.  That being said, one individual raised concerns about accessing a recently departed employees emails.  She was concerned about who should have access to the email, and for what purpose and ...
Email LinkedIn Twitter Facebook

This Week in Review highlights the divide between on-duty and off-duty conduct of employees. Several articles from the last week involve stories about employee use of work computers to check Facebook and personal email, look at pornography, and access confidential medical information. This weeks round-up also features articles addressing the uncertainty faced by employers who attempt to regulate the off-duty conduct of employees. Although a recent NLRB Advice Memorandum upheld discipline of an employee for controversial statements on Twitter, another article asks whether ...

Email LinkedIn Twitter Facebook
The worlds of technology and labor and employment law are always on a collision course, but this last week these areas seemed to intersect even more than usual. (Maybe I just have David Foley's "Worlds Colliding" post on the brain.) This week witnessed a host of news about technology-related employment and labor litigation, including settlement of the NLRB's threatened complaint against Thomson for the news organization's social media policy. Stories about the theft of customer payment information from Sony have also dominated the technology news, coming in the wake of the recent ...
Email LinkedIn Twitter Facebook

Privacy and secrecy in the workplace. It's kind of a touchy topic, isn't it? On the one hand, both employers and employees expect that information that they consider to be private will remain private. But on the other hand, both employers and employees often wonder about the secrets that the other is keeping from them.

This week's stories showcase the huge impact of modern technology on privacy and secrets in the workplace. From the iPhone location-tracking data scandal to employee recordings of workplace conversations to digital warning signs of an imminent employee departure, the ...
Email LinkedIn Twitter Facebook
The worlds of technology and data privacy collided this last week.  On Friday, Epsilon issued a press release disclosing that the names and email addresses of the marketing company's customer data were compromised.  Although Epsilon claimed that only a small subset of clients were affected, I received notices throughout the week from financial companies, travel companies, and other service providers letting me know that my email address and name may have been compromised.


The Epsilon story highlights a growing concern for employers about the security of confidential ...

Email LinkedIn Twitter Facebook
It was another busy week in the world of technology and employment and labor law.  Mercifully, the Charlie Sheen uproar seems to have tapered off for the time being (although you can now watch his online rants on Ustream).  Perhaps even more shocking, Eric Meyer at The Employer Handbook reported on a sexting case that turned out surprisingly well for an unprepared employer (dont expect to be so lucky if you repeat their mistakes).  Other stories from the week include a great summary of some of the wage and hour issues associated with telecommuting, updates in the WikiLeaks/Bank of America ...
Email LinkedIn Twitter Facebook

We increasingly live in an electronic world where entertainment news articles about movie and TV stars are featured adjacent to articles about important technology, political, legal, and world events. No star is in the limelight these days like Charlie Sheen, and his recent antics have the mainstream media telling us that Sheen can teach us a thing or two about how to conduct ourselves in the workplace in this increasingly electronic age.

This week, Charlie Sheen was fired from his hit TV show, and CNN.com posted an article stating that Sheens conduct demonstrates the perils of ...

Email LinkedIn Twitter Facebook

In my last post, I cautioned employers about using information that it learns about its employees through social networking sites. A few more thoughts on that. With employees posting running accounts of their daily activities on social networking sites, its quite tempting for employers to want to take a peek at what employees are saying about how they are spending their work day or what theyre doing on a day when they are supposedly missing work because of an illness or injury. Its even more tempting for employers to want access to this information when the employee in question has been a ...

Email LinkedIn Twitter Facebook

Topics

Archives

2021

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

Blog Authors

Recent Posts