9:30am – 10:20am
Breakout Session A
How the NLRA Affects Every
Employer, and What to
Expect from an
NLRB at Full Strength
Thomas R. Gibbons, Shareholder
Jackson Lewis P.C.
Overview
• The Labor Landscape Today – Full Board and Labor
Overview
• Fitting Recent Events Together – Key Issues: Where the
Action Is
• “Holdover” Issues – Challenges to NLRB Authority:
• Status and Potential Impact of Noel Canning
• Board Posting Rule
• NLRB and DOL Rulemaking Initiatives: Accelerated
Election Rule, Part 2
• Micro-Units
• Current NLRB Update:
• Mandatory Submission of Certain Cases to Division of Advice
• Recap of Key Board Decisions
• Recommendations For Employer Consideration
New NLRB Members
• NLRB’s agenda likely to be ambitious
• Board now has 5 Senate-confirmed members:
• Mark Gaston Pearce (current Chairperson);
• Nancy Schiffer (former Associate General Counsel to the AFLCIO);
• Harry I. Johnson, III (former management-side labor
attorney);
• Kent Hirozawa (former chief counsel to Chairman Pearce);
• Philip A. Miscimarra (former management-side labor
attorney).
• On October 29, 2013, the Senate confirmed Richard
Griffin as General Counsel of the NLRB.
Recent NLRB Statistics
• On December 2, 2013, the Board released its 2013
annual Performance and Accountability Report
According to the report:
• The Board issued 342 decisions in contested cases
• 277 were unfair labor practice cases
• 65 were representation cases
• The Board authorized the General Counsel to seek
10(j) injunctions in 41 cases
• Of the 26 decided by the end of the 2013, the Board
settled 15 and succeeded in eight
Recent NLRB Statistics (cont.)
• There were numerous Board social media
successes highlighted. The Board now has:
• Over 10,000 “friends” on Facebook
• Over 5,000 Twitter followers
• A recently-launched smartphone mobile app intended
to “inform and educate the public about the [Act]”
• A Protected Concerted Activity Section on it’s website
which lists numerous cases throughout the country
where charging parties received significant backpay
awards after filing unfair labor practice charges
Recent Labor-Related Statistics
•
11.3% of total US workforce were union members in 2013 (same as
2012), broken down as follows:
•
•
•
•
•
•
•
6.7% of private sector unionized in 2013
35.3% of public sector unionized in 2013
16.0 million workers unionized (14.5 million covered by unions, 1.5
unaffiliated but covered by union contracts) in 2013 (about the same
as 2012)
New York had the highest concentration of unionized workers in
2013 (24.4%)
Pennsylvania unionized workforce percentage is 15.8%
North Carolina had the lowest concentration of unionized workers in
2013 (3.0%)
AFL-CIO affiliates participated in more elections than those
associated with Change to Win (“CTW”), however CTW affiliates
organized more workers. The Service Employees International Union
organized the most workers of any union, followed by the
International Brotherhood of Teamsters and the United Food and
Commercial Workers
Fitting Recent Events Together
Where The Action Is
• All Employers:
•
•
•
•
NLRB Noel Canning decision
Protected Concerted Activity
Neutrality/Card Check
Interplay between labor relations, public relations,
government relations, international efforts, Wage-Hour
collective actions, worker centers, fast food/retail/others
“Fight For 15”, etc.
• Federal/state interaction (and politics)
• LMRDA
• Union-free Employers:
•
•
•
•
Accelerated election rules
Micro-units
Industries/groups affected
Education (football players and adjunct faculty organizing)
NLRB Authority Challenged
• The Noel Canning case
• In Noel Canning v. NLRB, the United States Supreme Court
held that the January 4, 2012 “intrasession” recess
appointments of three National Labor Relations Board
members (Sharon Block, Richard Griffin and former Member
Terence Flynn) by President Obama were unconstitutional,
with the result that the NLRB has been acting without a
requisite three member quorum since at least that date.
• This decision invalidates Board decisions and other actions in
which the appointees participated.
• The current Board of 5 Senate confirmed members will
review any contested cases.
NLRB Authority Challenged (cont.)
• Cases challenging the NLRB’s Notice Posting Rule:
• Two U.S. Courts of Appeals invalidated the Notice Posting
Rule which would have required employers to post an
11” x 17” notice advising employees of their rights under
the NLRA in “conspicuous places” where the employer
customarily posts personnel rules, policies or
employment notices.
• The United States Court of Appeals for the D.C. Circuit
held that the rule violated the employer’s free speech
rights under Section 8(c) of the NLRA.
• Shortly thereafter, the United States Court of Appeals for
the Fourth Circuit held that the NLRB exceeded its
authority in promulgating the rule.
Status of the Board’s Mandatory
Notice Posting Requirement
• The Board did not file a petition for U.S.
Supreme Court review of decisions by the U.S.
Courts of Appeal for the D.C. Circuit and the
Fourth Circuit striking down the Board’s noticeposting requirement by the January 2, 2014
deadline.
• With the passing of the January 2 deadline, the
notice-posting requirement is effectively dead.
Volkswagen Union Vote
• On February 19, 2014, workers at the plant voted
712-626 to reject the Union
• On February 21, 2014, the Union petitioned the
Board to set aside the results and conduct and new
election
• On March 13, 2014, the National Right to Work
Foundation filed a lawsuit in the Eastern District of
Tennessee alleging Volkswagen and the UAW
colluded to overturn the results of the election, and
seeking an injunction against Volkswagen
cooperating with the Union in holding a re-election
• On April 21, 2014, the UAW withdrew its legal
challenge
Northwestern Football Players
Can Unionize
• The NLRB found that scholarship football players at
Northwestern University are “employees” within the
meaning of the NLRA and eligible for union
representation. The Regional Director found
appropriate a bargaining unit composed of “all
football players receiving grant-in-aid football
scholarship [sic] and not having exhausted their
playing eligibility.”
• The Regional Director used the common law
definition of employee in making his decision. Under
that test, a person is an employee if he performs a
service for another, under a contract of hire, for
compensation, and is subject to the other’s right of
control. He found the following:
Northwestern Football Players
Can Unionize (cont.)
• The scholarship football players perform a service
(playing football) for compensation (a scholarship).
• The scholarship players' commitments to play football in
exchange for the scholarship constitutes a contract for
hire
• The scholarship players are under the control of the
University for the entire year, including in-season and
out-of-season workouts, restrictions on their entire
personal life and detailed regulations players must
follow at the risk of losing their scholarship
• Brown University rule that graduate student teaching
and research assistants are not employees is in jeopardy
Accelerated Election Rule
• The Accelerated Election Rule: Part 2:
• Announced by Board on February 5, 2014.
• Same rule previously proposed in June 2011.
• The D.C. Circuit Court of Appeals invalidated the
rule in May 2012 because only two of the three
then-serving board members were present for the
final vote.
• The Court of Appeals noted that the NLRB could
revisit its rulemaking proposals with “a properly
constituted quorum” of Board members.
Accelerated Election Rule
• Essentially eliminates some pre-election rights of
employees and employers and shortens the time before a
representation election takes place.
• Allows the Hearing Officer authority to limit the preelection hearing to matters relevant to “question[s]
concerning representation”.
• Authorizes the Hearing Officer to decide whether to permit
briefing after the pre-election hearing, including the
subjects to be addressed and the timing for filing.
Accelerated Election Rule (cont.)
• Consolidates into a single post-election procedure the
appeals process for Board review of pre-election issues and
issues concerning the conduct of the election.
• Gives the Board discretion to hear and decide any appeals
to the election process, whether they concern pre-election
or post-election issues.
• Narrows the circumstances in which a request for special
permission to appeal to the Board would be granted – now
granted only in extraordinary circumstances.
What are the Legal Ramifications?
• “Quickie elections” predicted to help unions
organize more employees.
• Lawful, factual and honest employer education of
voters typically reduces union support once
employees hear both sides.
• Cutting the “campaign” period reduces pre-election
opportunity for lawful employee education.
• Uncertainty of knowing who is included in the voting
group.
Micro-Units
• In Specialty Healthcare, 357 NLRB No. 83 (August 26,
2011), the Board altered its test for deciding whether a
proposed collective bargaining unit is too narrow.
• The Board held that an employer challenging the
appropriateness of a bargaining unit on the basis that it
does not include certain employees must show that the
excluded employees share an “overwhelming
community of interest” with the included employees.
• The new rule effectively enables the union to choose
virtually any unit, no matter how small.
• The U.S. Court of Appeals for the Sixth Circuit upheld the
NLRB’s decision in Specialty Healthcare on August 15,
2013.
Micro-Units (cont.)
• Appropriate
• Cosmetic and fragrance employees not all
employees or all sales employees; Macy’s, 361
NLRB No 4 (July 22, 2014).
•
Not Appropriate
• Women’s shoe sales employees on the second
and fifth floor shoe departments; Neiman and
Marcus Group Bergdorf Goodman, 361 NLRB
No. 11 (July 28, 2014).
Recommendations for Employer
Consideration
• Develop a strategic, comprehensive, integrated labor
relations plan that fits your culture.
• Review employment policies to ensure “best practices”
consistent with legal requirements.
• Develop a lawful communications plan NOW—and err on
the side of communicating.
• Prepare your management through training NOW
regarding employee and company legal rights.
• Determine who the supervisors are (and interaction of
bargaining unit jobs) NOW so that you are prepared.
• Develop a plan in preparation for hearings/campaigns if
the new rule is finalized.
Mandatory Advice Memorandum
Signs of Changes in Current NLRB Case Law?
• For the first time since April 2011, the NLRB’s
General Counsel issued a memorandum
outlining the types of cases that regional offices
must submit to the Agency’s Division of
Advice. The memorandum addresses cases of
particular concern to the General Counsel, and
suggests where the General Counsel may focus
its prosecutorial resources. Some topics
included:
• Whether there is a Section 7 right to use an
employer’s email system or should a discrimination
standard be used.
Mandatory Advice Memorandum
Signs of Changes in Current NLRB Case Law?
• Whether non-union employees should be afforded
Weingarten rights.
• Whether an employer may refuse to furnish
information pertaining to a relocation decision.
• Whether deferral to arbitration is appropriate
where the arbitration will not be held in one year.
• Whether an employer is obligated to furnish
financial information in bargaining where the
employer has arguably made an “inability to pay”
contention or has made more directed financial
claims but refuses to furnish supporting
information.
Board’s Continued Focus on
Protected Concerted Activity
• What is “Concerted”?
• Activity that is engaged in by two or more employees
together.
• Activity by one employee on the authority of other
employees.
• Individual activities that are the “logical outgrowth of
concerns expressed by the employees collectively.”
• Individuals seeking to initiate, induce, or prepare for
group action.
• Activity involving only a speaker and a listener if
the content is for the purpose of making
common cause, even if it is over the speaker’s
personal concerns.
Board’s Continued Focus on
Protected Concerted Activity (cont.)
• What is “Concerted?”
• Class action lawsuit.
• Calling a government agency about working
conditions at the company.
• Filing administrative charges to remedy sexual
harassment at the company.
• Complaining to legislators about safety issues at the
company.
• Complaining to the news media about working
conditions at the company.
Board’s Continued Focus on
Protected Concerted Activity (cont.)
• What is “Protected”?
• Employee efforts “to improve terms and conditions
of employment or otherwise improve their lot as
employees through channels outside the immediate
employee-employer relationship.”
• Employer documents, handbooks, workplace
policies, work rules, etc.
• It is unlawful to maintain any rule that would
“reasonably tend to chill employees in the exercise
of their Section 7 rights,” even if the rule is not
enforced.
Board’s Continued Focus on
Protected Concerted Activity (cont.)
• It also is separately unlawful to enforce such a
rule against an employee.
• Handbook rules and policies drawing attention
from the Board:
- Arbitration
- Class action waivers
- At-will employment
- Contact with media and
- Social media
law enforcement
- General releases
- Employee conduct
- Other dispute resolution
- No loitering
philosophy/statement
- Union/union-free
- Confidentiality (including workplace investigations)
Recap of Board Decisions:
Mandatory Arbitration Clauses
• In D.R. Horton, 357 NLRB No. 184 (2012), the Board held that
“employers may not compel employees to waive their NLRA
right to collectively pursue litigation of employment claims in
all forums, arbitral and judicial.” To that end, it invalidated an
arbitration clause, which precluded employees from pursuing
class action claims.
• However, in D.R. Horton, Inc. v. NLRB, 12-cv-60031 (5th Cir.,
Dec. 3, 2013), the U.S. Court of Appeals for the Fifth Circuit
overturned the Board’s 2012 ruling finding the NLRB failed to
give “proper weight” to the Federal Arbitration Act (FAA),
which, under recent Supreme Court rulings, requires
arbitration agreements be enforced “according to their terms,”
unless Congress has specified otherwise.
Recap of Board Decisions:
Mandatory Arbitration Clauses (cont.)
• What are the legal ramifications?
• Validity of D.R. Horton currently in limbo in light of
Fifth Circuit’s decision. HOWEVER, at this point:
• The Board may require an employer to rescind an
unlawful agreement, reissue the agreement without the
waiver, and/or post a notice regarding the violation.
• The Board’s decision does not necessarily restrict
employers from precluding the arbitration of class or
collective claims so long as a judicial forum is available
for such class or collective claims.
• The Board’s decision also may not restrict employees
from voluntarily entering into an agreement waiving the
right to participate in class actions via an opt-out
program.
• The Board could find that any unsuccessful attempt to
compel arbitration or litigation of an individual claim is
vexatious litigation filed for a retaliatory purpose in
violation of Section 7 of the NLRA.
Recap of Board Decisions:
At-Will Policies
• Advice Memorandum (Feb. 4, 2013), Windsor
Care Centers, 32-CA-087540 and 21-CA-087575,
an employee’s at-will status could only be
modified through a written agreement signed by
the employer’s president and the affected
employee – lawful.
• Based on a number of recently issued advice
opinions, the primary issue to avoid with at-will
disclaimers is any indication that the at-will
status cannot be modified in any manner.
Recap of Board Decisions:
Confidentiality in Investigations
• In Banner Health System, 358 NLRB No. 93, the
Board held the employer’s maintenance and
application of an oral rule prohibiting employees
from discussing internal complaints that were
under investigation by the hospital violated
Section 8(a)(1) of the Act.
• The employer’s “generalized concern” regarding
the need to protect the integrity of its
investigation was insufficient to outweigh
employees’ Section 7 rights.
Recap of Board Decisions:
Confidentiality in Investigations (cont.)
• In January 2013, the Board’s Division of Advice, in Verso
Paper, released a memorandum finding the following
policy lawful under Banner Health System.
• “[The Company] has a compelling interest in protecting the
integrity of its investigations. In every investigation, [the
Company] has a strong desire to protect witnesses from
harassment, intimidation and retaliation, to keep evidence from
being destroyed, to ensure that testimony is not fabricated, and
to prevent a cover-up. To assist [the Company] in achieving
these objectives, we must maintain the investigation and our
role in it in strict confidence [The Company] may decide in some
circumstances that in order to achieve these objectives, we must
maintain the investigation and our role in it in strict confidence.
If [the Company] reasonably imposes such a requirement and
we do not maintain such confidentiality, we may be subject to
disciplinary action up to and including immediate termination.”
PCA and Workplace Investigations
• In Grand Canyon Education, Inc., 359 NLRB No. 164
(July 12, 2013), the Board found the Employer
violated the NLRA based on the nature of employee
interrogations by a HR representative.
• In response to complaints about a supervisor, the HR
representative questioned employees behind closed
doors about the individual and asked the employees
to keep the conversation private.
• The HR representative did not inform the employees
about the purpose of the meeting beforehand or
advise them that their participation was not
required.
PCA and Workplace Investigations (cont.)
• The Board held that the interrogation was unlawfully
coercive because, among other things: (1) the HR
representative asked employees for names of coworkers who had complained about the supervisor; (2)
the questions could reasonably have been construed as
seeking information in order to take action against
employees; (3) the interviews were conducted in the HR
representative’s office with the door closed; and (4) the
employees were instructed to keep the discussion
confidential and were not advised the meeting was
voluntary or that there would be no reprisals for
refusing to cooperate.
Recommendations for Employer
Consideration
• Lawful compliance and best practices:
• Develop a strategic, comprehensive, integrated labor
relations plan.
• Think strategically – get involved in the dialog about
future changes (e.g., employer associations, lobbying).
• Insure “C” suite buy-in and awareness of legal changes.
• Create an effective labor relations and communications
program for important “stakeholders” – board members,
shareholders, executives, employees, politicians,
customers, etc.
• Consider the interrelationship of labor relations, public
relations, government relations, international relations,
shareholder relations, etc.
• Consider relation between unionized and union-free
operations (card check neutrality, labor philosophy,
negotiations strategy, union-free approach, etc.).
Recommendations for Employer
Consideration (cont.)
• Develop “best practices”.
• Conduct a legal/HR assessment on internal and external
matters to ensure lawful best practices.
• Conduct a bargaining unit analysis.
• Conduct new, focused training for legal, HR and
executives/managers/supervisors about the legal
requirements of the “new” NLRA to understand the big
picture, PCA, NLRB initiatives, and legal rights/responsibilities
to ensure compliance.
• Review employee handbooks and other workplace policies
NOW to ensure current policies are lawful in light of recent
NLRB decisions.
• Review arbitration, release, commission, bonus and other
agreements to ensure class/collective action waiver provisions
contained therein consider D.L. Horton and other recent NLRB
pronouncements.
• Review social media and other policies regularly in light of
changes in technology and in the law.
Some Final Thoughts …
Creating Excellence
• Does your organization have “best in class”
policies? National? International? Local?
Regional? By Business Unit?
• Does your organization have “best in class”
practices that take into account recent
developments and trends?
• Do managers know how to “issue identify”?
• Do managers then get legal, labor relations
and/or HR involved?
Some Final Thoughts …
Creating Excellence (cont.)
• What role do you play in long- and/or short-term
planning? Agency charges? Employment litigation?
Have you discussed how to minimize the
organization’s likelihood of being subject to agency
charges, government investigations, wage-hour or
other litigation, union issues, adverse posts and
other e-communications, bad publicity, shareholder
and politician inquiries, and other “new age”
pressures placed on organizations in today’s
international workplace?
• Tip: Balance long-range strategic planning with
short-term “quick successes” and reacting to daily
issues.
9:30am – 10:20am
Breakout Session B
Cyber Smearing and Social Media:
How to Protect Yourself and
Your Company
Justin E. Theriault, Associate
Jackson Lewis P.C.
Potential Implications of Social Media
and Other Electronic Communications
• Employee
Considerations
• First Amendment
• Privacy
• Stored Communications
Act
• Political/Lawful
Activities Statutes
• National Labor
Relations Act
• Whistleblowing
• Employer Concerns
• Harassment and
Discrimination
• Damage to Reputation
• Interference with Job
Functions and the
Workplace
• Protection of
Confidential
Information
• Negligent
Hiring/Retention
• Preserving Evidence
Today’s Agenda
• Employee Disciplinary Concerns
• Harassment/Retaliation
• National Labor Relations Act
• Employee Privacy Issues
• Ex-Employee Concerns
• Hiring Considerations
• Preservation of Evidence and Related
Obligations
Cyber Smearing and
Social Media
EMPLOYEE DISCIPLINARY
CONCERNS
Employee Disciplinary Concerns
• Policies should clearly state that antiharassment, anti-discrimination, and other rules
apply in full force and effect to employees’
activities on company electronic systems and on
social media.
• If something cannot be lawfully said or shared in
person, it cannot be lawfully said or shared
electronically.
• This also places an onus on employers to
enforce policies in these forums.
Employee Disciplinary Concerns
Blakely v. Continental Airlines, Inc.
• A female employee had complained of
harassment and retaliation by male employees
on the airline’s online bulletin board.
• The court found that the airline had a
responsibility to stop the harassment if it knew
or should have known about these actions.
• The fact that the employees were not in the
same room or even in the same state when the
comments were made did not protect the
company or the offending employees.
Employee Disciplinary Concerns
General Considerations
• Employers may regulate their employees’ online
behavior to a certain extent.
• An employer may be found liable if it does not
put an end to discrimination and/or retaliation,
even if these do not take place in the physical
workplace.
• Be diligent in enforcing policies, but remember
that employees do have the right to engage in
certain activities that may be frowned upon by
the employer.
Employee Disciplinary Concerns
• Section 7 of the National Labor Relations Act
protects employees’ “right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.”
• The Act applies to union and non-union
employees alike.
Employee Disciplinary Concerns
• Employers may not discipline employees for
engaging in Section 7 activities.
• Policies may not be so broad as to prohibit
Section 7 activities.
• A rule will be found unlawful where:
• It explicitly restricts protected concerted activity;
• Employees would reasonably construe the language of
the rule to prohibit such activity;
• The rule was promulgated in response to union
activity; or
• The rule has been applied to restrict protected
concerted activities.
Employee Disciplinary Concerns
Knauz BMW
• A salesman at a BMW dealership made a number of Facebook
posts regarding two separate incidents:
• (1) A customer event; and
• (2) A test drive at another dealership (owned by the same
company) that ended in an accident.
• Before the customer event, the salesman and other
employees paid on commission criticized management for
serving low quality food at the luxury car dealership, but no
other employees commented on or “Liked” the salesman’s
posts.
• The salesman could not be fired for his posts about the
customer event because it was protected concerted activity.
• The salesman could be (and was) fired for his posts about the
accident because there was no relation to his wages or other
conditions of employment.
Employee Disciplinary Concerns
Jefferson Standard
•
•
•
•
•
United States Supreme Court, 1953
A union of television technicians in Charlotte had a dispute with their
employer. During the dispute, several employees peacefully picketed
outside the station on their own time, which is protected activity.
Weeks later, several technicians began distributing several thousand
handbills claiming that Jefferson Standard considered Charlotte to be
a “second class city” because it did not present any local programs on
its Charlotte station.
The “attack” continued until Jefferson Standard discharged ten of the
employees charged with sponsoring or distributing the handbills.
The NLRB held that the terminations were an unfair labor practice, but
the Supreme Court disagreed, concluding that despite the fact that
the employees were engaged in what otherwise might have been
protected activity, their communications were so disloyal as to lose
the protection of the NLRA.
Employee Disciplinary Concerns
Lessons Learned from Jefferson Standard
• Protected activity under Section 7 is not entirely
without limits.
• However, employers should be mindful that
Appellate Courts decisions have varied in results with
regard to the application of Jefferson Standard.
• Endicott Interconnect Technologies v. N.L.R.B. (D.C. Cir.
2006)
• Five Star Transportation, Inc. v. N.L.R.B. (1st Cir. 2008)
• Joliff v. N.L.R.B. (6th Cir. 2008)
Employee Disciplinary Concerns
Staying Out of the NLRB’s Cross-Hairs
• Carefully draft policies so they cannot be read to
limit Section 7 activities.
• Determine whether the employee’s activities are
protected by Section 7 before issuing discipline.
• Be clear about why the discipline is being given.
Cyber Smearing and
Social Media
EMPLOYEE PRIVACY ISSUES
Employee Privacy Issues
If a policy is in place, an employer may
lawfully monitor documents and
communications stored, accessed, sent, or
created on its electronic communications
systems…consistent with applicable law.
Employee Privacy Issues
Pure Power Boot Camp, Inc. v. Warrior Fitness, LLC
• Two employees used their private, web-based email
accounts to communicate about starting a competing
business.
• The employer logged onto these accounts using the user
names and passwords the employees had stored on
company computers.
• An employer may access files stored, accessed, sent or
created using its electronic systems.
• An employer may not use an employee’s credentials to
access personal email accounts without employee
consent.
• In this case, many emails in the account were never
accessed using the employer’s electronic systems, and so
the employer had no right to access them.
Cyber Smearing and
Social Media
EX-EMPLOYEE CONCERNS
Ex-Employee Concerns
Many employers must be wary of exemployees who seek to smear their former
employer and tarnish their reputation
through the use of social media.
Ex-Employee Concerns
Prevent the Ex-Employee “Smear Campaign”
• Maintain enforceable confidentiality agreements to
protect company trade secrets and proprietary
information.
• Such agreements are best presented at the time of hire
as a condition of employment.
• Ex-employees who do not have a contractual duty not
to disparage the company or disclose confidential
information will be limited only by applicable law (e.g.,
defamation, trade secrets statutes).
• Employee severance agreements, in addition to
providing a release of claims, may be used to
contractually obligate ex-employees to refrain from
making disparaging remarks about the employer,
whether verbally or on social media.
Cyber Smearing and
Social Media
HIRING CONSIDERATIONS
Hiring Considerations
Many employers currently use Facebook, LinkedIn,
Twitter, and other social media sites when hiring.
• Benefits:
• Verification of
Application
Information
• “Culture Fit”
• A More Complete
Picture of Applicant
• Risks:
• Exposure to
Protected
Characteristics
• Unreliable
Information
• Reading Too Far
Into Things (e.g.
Lawful Activities)
Hiring Considerations
If you decide to use Social Media in your hiring
process:
• Have a non-decision maker conduct the search
and filter out protected information;
• Verify the information is reliable;
• Remember lawful activities statutes;
• Don’t over-analyze;
• Remember there is no substitute for good
interviewing;
• Keep job responsibilities in mind;
• Be consistent; and
• Keep records.
Cyber Smearing and
Social Media
PRESERVATION OF EVIDENCE AND
RELATED OBLIGATIONS
Preservation of Evidence and
Related Obligations
• Cases and new federal rules place emphasis on
preservation of Electronically Stored Information
(“ESI”) and IT records.
• Failure to preserve this information could lead
to adverse inferences, judgments against the
company, suppression of other evidence, and
sanctions/fines.
• Triggering events include:
•
•
•
•
EEOC/Division of Human Rights charge;
Court complaint;
Demand letter; and
Regulatory Agency action.
Preservation of Evidence and
Related Obligations
Zubulake v. UBS Warburg LLC
•
Plaintiff-employee claimed sexual harassment and requested
from defendant-employer “all documents concerning . . . the
plaintiff.”
•
The defendant produced approximately 350 pages of documents,
including 100 pages of emails.
•
Plaintiff knew more emails existed; she had produced 450 pages
of emails herself and requested the company’s archived files.
•
It was then discovered that certain backup tapes were missing
and that emails had been deleted.
•
The court found the defendant had not satisfied a duty of
maintaining its files since it knew some may have been relevant
to the plaintiff’s EEOC claim.
•
Results: Adverse jury instructions; costs of back-up restoration;
costs of re-depositions; costs of plaintiff’s motion for sanctions;
and, eventually, a judgment against the defendant for an
additional $29.3 Million.
Preservation of Evidence and
Related Obligations
General Considerations
• Know your systems.
• Create/update retention policy.
• Have a litigation hold plan.
• Document steps taken to implement and
execute litigation hold.
• Know when to lift a litigation hold.
Preservation of Evidence and
Related Obligations
Social Media-Specific Considerations
• Monitor your pages, especially if public postings
are permitted.
• Create internal policies relating to social media
page maintenance.
• Make copies of posts relevant to potential
litigation as soon as you become aware of them.
• Maintain copies of deleted posts that may be
relevant to potential litigation.
Summary
• Employees and employers alike can be held
liable for employees’ online activities.
• Have strong lawful policies in place, but realize
what can and cannot be done under them.
• Leverage contractual agreements to prevent exemployees’ from engaging in cyber smearing.
• There are legal and practical risks in using social
media for hiring purposes.
• Maintain data that may become necessary again
down the road.
10:45am – 11:35am
Breakout Session C
Common Pitfalls in Disability
Leave Management
Alison Jacobs Wice, Shareholder
Jackson Lewis P.C.
Common Pitfalls In Disability
And Leave Management
FMLA not designated properly
• Being overly generous in applying FMLA
• FMLA not designated at all
• What if the employee does not want FMLA?
Escriba v. Foster Poultry Farms (9th Cir. Feb. 25,
2014)
• Holding: No FMLA violation where employee
chose not to take protected FMLA leave even
though the leave could have been covered
under the FMLA.
Common FMLA Pitfalls
Managing Intermittent FMLA
•
•
•
•
•
•
•
Predictable and certified.
Unpredictable and certified.
Unexpected and uncertified.
Chronic and ongoing.
Reduced leave schedules.
Events within certification parameters.
Events outside certification parameters.
Common FMLA Pitfalls
Overlooking or inconsistent enforcement of
your policies related to absences
•
How does PTO come in to play?
•
How are your standards for calling-out
applied?
•
Other compensation benefits that apply
during a leave period?
Common FMLA Pitfalls
Transfer or reassignment during intermittent
leave
•
Allowed only for leave that is foreseeable and
based on planned medical treatment for the
employee or family member
•
Transfer is temporary during the period of
intermittent or reduced leave
•
Must be with equivalent pay and benefits
•
Cannot transfer to a position designed to
discourage the employee from taking leave
Common FMLA/ADA Pitfalls
Forms and toolkits!
•
The importance of forms.
•
Employers need different FMLA forms for
Connecticut FMLA (e.g., cannot ask for
nature of health condition)
•
ADA forms may differ
Common FMLA/ADA Pitfalls
Don’t forget about GINA
Note to Healthcare Provider: The Genetic Information
Nondiscrimination Act of 2008 (GINA) prohibits employers and other
entities covered by GINA Title II from requesting or requiring genetic
information of an individual or family member of the individual,
except as specifically allowed by this law. To comply with this law, we
are asking that you not provide any genetic information when
responding to this request for medical information. “Genetic
information” as defined by GINA, includes an individual's family
medical history, the results of an individual's or family member's
genetic tests, the fact that an individual or an individual's family
member sought or received genetic services, and genetic
information of a fetus carried by an individual or an individual's
family member or an embryo lawfully held by an individual or family
member receiving assistive reproductive services.
Common FMLA/ADA Pitfalls
Making medical decisions or expressing
stereotyped opinions
•
Being too restrictive on determining what is
a serious health condition or disability
•
Making inappropriate written or verbal
comments creating a potential “regarded as
claim”
Common ADA Pitfalls
Sending an employee to the employer’s doctor
• Allowed as part of the reasonable
accommodation interactive process if the
documentation provided by the employee is
insufficient (e.g., where provider does not
have the expertise or where other factors
indicate that information provided is
fraudulent).
• Allowed when an employee poses a direct
threat – must be based on an individualized
assessment of the employee’s present ability
to safely perform the essential job functions.
Common ADA Pitfalls
Giving the interactive process short shift -•
•
•
•
•
Not engaging in the interactive process to
identify a possible accommodation
Not identifying and documenting the
essential job functions
Assuming that the requested
accommodation is unreasonable or an
undue burden
Incorrect or insufficient analysis of safety
issues
Assuming that the employee poses a direct
threat to herself or others
Common ADA Pitfalls
Leave as an accommodation
•
Before denying additional leave, be sure to
engage in documented dialog with the
employee.
•
Best practice in denying additional leave is
to show • indefinite/extended leave
• legitimate operational hardship
• process may start during FMLA
Common ADA Pitfalls
Leave as an accommodation
• Don’t forget to consider whether there are
alternative accommodations to leave
• Process of what comes after FMLA leave (e.g.,
more leave under the ADA or return with a
workplace accommodation) can begin before
the end of the FMLA leave.
Common ADA Pitfalls
Telecommuting as an accommodation
EEOC v. Ford Motor Co. (6th Cir. April 22, 2014)
“[A]dvancing technology has diminished the necessity of
in-person contact to facilitate group conversations. The
world has changed since the foundational opinions
regarding physical presence in the workplace were issued:
teleconferencing technologies that most people could not
have conceived of in the 1990s are now commonplace.”
Common ADA Pitfalls
Reassignment as an accommodation
•
Reassignment to a vacant position is the
accommodation of “last resort”
•
The employee seeking a lateral transfer
needs to be qualified for the vacant job but
does not need to be the most qualified for
the job (i.e., the employee does not need to
compete for the job)
•
An employer can require an employee
seeking a promotion to compete for the job
10:45am – 11:35am
Breakout Session D
“Banning the Box” and Beyond:
Using Background Checks in the
Hiring Process
Tanya A. Bovée, Shareholder
Jackson Lewis P.C.
The “Box”
HAVE YOU EVER BEEN CONVICTED OF A
CRIME?
(A conviction includes a plea, verdict or
other finding of guilt, as this question
includes any conviction for which you
have received a pardon).
Check one: ___YES ___NO
The “Box”
Have you ever been convicted of a crime?
______Yes
______ No
If so, please describe fully the criminal conviction(s) listing the nature of the offense
and the date of the offense. (A conviction record will not necessarily be a bar to
employment.)
___________________________________________________________________
___________________________________________________________________
1. You are not required to disclose the existence of any arrest, criminal charge or
conviction, the records of which have been erased pursuant to section 46b-146,
54-76o or 54-142a of the Connecticut General Statutes;
2. Criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54142a are records pertaining to a finding of delinquency or that as a child was a
member of a family with service needs, an adjudication as a youthful offender, a
criminal charge that has been dismissed or nolled, a criminal charge for which
the person has been found not guilty or a conviction for which the person
received an absolute pardon;
3. If your criminal records have been erased pursuant to section 46b-146, 54-76o
or 54-142a, you shall be deemed to have never been arrested within the
meaning of the Connecticut General Statutes with respect to the proceedings so
erased and may so swear under oath.
Arguments for and Against
• Why BAN the Box?
• Disparate impact concerns
• Remove applicant fears of rejection based solely
on the answer to this question
• Provide increased opportunities to those trying
to reintegrate after release from incarceration
• WHY KEEP the Box?
• Statutory Mandates
• Sensitive Nature of Certain Positions
• Economy: Why go through full process if
candidate is not qualified?
Where Has The Box Been Banned?
Private Employers
• Hawaii
• Massachusetts
• Minnesota
• Rhode Island
•
•
•
•
•
•
Seattle, WA
Buffalo, NY
Philadelphia, PA
Newark, NJ
San Francisco, CA
Baltimore, MD
Where Has The Box Been Banned?
Coming soon to a location near you
• Illinois (eff. 11/1/15)
• District of Columbia (eff. early to mid
October pending Congressional review)
• New Jersey (eff. 3/1/15 – when becomes
effective, it will preempt local legislation
like Newark, NJ.
• Rochester, NY (eff. 11/18/14)
Where Has The Box Been Banned?
Contractors/Vendors of Certain Cities
• Boston, MA
• Cambridge, MA
• New Haven, CT
• Hartford, CT
• Worcester, MA
• Detroit, MI
• Compton, CA
• New York City, NY (doing business with NYC Human Services
Department)
• Richmond, CA
• Atlantic City, NJ
• Pittsburgh, PA
• Indianapolis, IN
• Louisville, KY
Disparate Impact Analysis
• Plaintiff or EEOC:
• Must demonstrate that a facially neutral
policy has a statistically significant disparate
impact on a protected group
• Technology has changed everything – and
the EEOC knows it
Establishing Business Necessity
• Burden shifts to employer to show the
policy is job related and consistent with
business necessity.
• Employer must show that it considered three
factors in making its decision:
1. The nature and gravity of the criminal offense(s);
2. The time that has passed since the conviction
and/or completion of the sentence
3. The nature of the job held or sought.
• Targeted screen should be narrowly tailored
When Business Necessity Is
Not Enough …
• Even if the employer proves business necessity,
the plaintiff(s) or EEOC may prevail by showing
the employer refused to adopt an alternative
practice that would satisfy the employer's
legitimate interests without having a disparate
impact on a protected class.
• Best Practice: Targeted screen followed by an
individualized assessment
• Consider the totality of the circumstances of the
conviction and the position
Who Should Be Concerned?
• Employers should be concerned if they use
criminal background checks and:
• Use them on a regular basis (“big numbers are
bad numbers”)
• Solicit and maintain race, gender, age, disability
or veteran data on applicants – this applies to
government contractors and subcontractors in
particular
• Applicant and/or background check data is
maintained by the company or through a vendor
• Have a “one size fits all” criminal background
check policy
Be in a Position to Demonstrate
Compliance
• Targeted Screens: use different standards for
different positions
• Avoid policies that indicate automatic exclusions,
instead, “Acme Corp. believes the following crimes
are job related − applicants with these offenses will
be subject to individualized assessment”
• Train HR and decision makers to avoid reliance on
hard and fast rules—such reliance jeopardizes
ability to demonstrate use of individualized
assessment
• Self-audit to root out inconsistencies, e.g. on-line
kick out
Convictions vs. Arrests
• Arrest – as opposed to underlying conduct –
should not be considered in making
employment decisions
• Its acceptable to ask about the circumstances
of the arrest
• States may also prohibit use of arrest
information
• California Labor Code 432.7: Employer cannot
ask applicant to disclose or use arrest
information that did not result in conviction
• Expanded on 1/1/14 to Include questions about
judicially sealed or expunged convictions unless
exception applies
Legal Strategy
• Narrow the scope of the EEOC’s claims
early in the case
• Challenge the EEOC’s evidence and data
supporting its claims of disparate impact
including by attacking the “expert” reports;
and
• Force the EEOC to identify which specific
part of the background−check practice
causes the alleged disparate impact, and
then attack that in pretrial motions
Recent Cases
• EEOC recently filed complaints
• Dollar General
• BMW
• Freeman
The FCRA
• Governs the collection, assembly, and use of
information about consumers by consumer reporting
agencies, including:
• Credit information
• Criminal background
• Motor vehicle reports (MVR)
• Other public record information
• Applies only to “consumer reports”
• Excludes information obtained directly from the consumer
• Excludes employer direct verification of prior jobs/education
• An employer is generally not a consumer reporting
agency
Pre-Procurement Requirements
• Requirements for Procuring a Consumer
Report
• Certification
• Disclosure/Notice
• Authorization/Consent
• Clear and Conspicuous Notice
Pre-Adverse Action Requirement
• Before taking adverse action:
• Provide Pre-Adverse Action Notice
• Provide a copy of the consumer report
• Provide a copy of Consumer Financial
Protection Bureau’s summary of rights
• Wait (FTC found 5 business days is reasonable)
• Apply whenever a report is obtained, even
if there is independent basis for the
decision.
Post-Adverse Action Requirements
• After taking adverse action:
• Provide notice of adverse action
• Provide information on consumer reporting
agency and consumer rights
Be Aware of State Requirements
• States are Limiting Access to Consumer
Credit Reports
• California Labor Code 1024.5
• Illinois Credit Privacy Act
• State Versions of FCRA
• California Investigative Consumer Reporting
Agencies Act (ICRAA)
Best Practices
• Consider EEOC Guidance on criminal
convictions
• Ensure FCRA requirements are incorporated in
process
• Independent disclosure and authorization
• Pre-adverse action letter
• Adverse action letter
• Identify applicable state and local
restrictions and requirements on screening
• Ban-the-Box restrictions
• Credit report restrictions and requirements
11:45 am – 12:40 pm
Breakout Session E
Wage and Hour Update:
Time for a Change?
Joan C. Luu, Associate and
Tal A. Kadar, Associate
Jackson Lewis P.C.
Introduction
• Workers are suing more than ever:
• In 2009, workers filed 5,644 federal lawsuits under the
FLSA.
• In 2010, that number rose to 6,081.
• In 2011, that number rose again to 7,008.
• In 2012, another record was set at 7,064.
• In 2013, that number rose to 7,764.
• Employers of all sizes collectively paid $221.5 million
dollars to settle FLSA cases in 2011. In 2012, the
settlement number rose to $467 million dollars. Over
the past 6 years, that figure has totaled $2.7 billion
dollars.
• This trend shows no signs of slowing down.
FLSA Filings, 1990 – 2013
8000
7000
6000
5000
4000
3000
2000
1000
0
1993 1995 1997 2001 2003 2005 2007 2009 2011 2013
Introduction
•
Data suggests that over 70% of
employers are not in full compliance
with the Fair Labor Standards Act
•
80% of DOL investigations into
employers’ wage practices result in a
finding of a violation
Enforcement by the DOL
• The DOL’s Wage and Hour Division (“WHD”) has a
budget of $224 million for 2014 and has proposed
a $265 million budget for 2015.
• WHD enforcement continues to be aggressive:
Fiscal Year
Compliance
Actions
Back Wages
Collected
Number of
Workers
2010
26,500
$176 Million
210,000
2011
33,295
$224 Million
275,000
2012
34,139
$280 Million
308,000
2013
33,146
$250 Million
269,000
Renewed Focus
• In March, President Obama directed the U.S.
Department of Labor to update the regulations
regarding which employees fall under the ambit
of the Fair Labor Standards Act’s overtime
requirements.
• President Obama wants to change the
regulations to extend overtime protections to
millions of employees who are currently
classified as exempt.
FLSA Basics
• Congress enacted the Fair Labor Standards Act in
1938 to address general economic conditions
prevailing during the Great Depression.
• Four key components:
• Minimum wage
• OT for hours worked beyond 40 in a workweek
• Recordkeeping requirements
• “Oppressive child labor” prohibited
Common Types of Claims
• Failure to pay for “compensable time”
• Misclassification
Potential Damages
• Liquidated Damages Are The General Rule
• Plaintiffs’ Attorneys’ Fees
• Wage And Hour Violations Are Amenable
To Collective And Class Actions
COMPENSABLE TIME
Hours Worked = Compensable Time
Compensable Working Time Includes . . .
• Time spent in primary work activities;
• Idle or stand-by time controlled or requested by
employer;
• Unauthorized working time;
• On-Call;
• Travel time;
• Time spent by an employee outside normal
hours “required, suffered or permitted to work.”
Compensable Time – Additional Issues
• Waiting In Bag Check Lines
• Time Waiting To Be Engaged
• Waiting For Computers To Boot Up
• Changing Time
• Remote Access/Emails/Cell Phones
Compensable Time – Additional Issues
• Time Records Not Filled Out By The
Employee
• Working Unauthorized Overtime
• Time Record Discrepancies
Treatment of Breaks and Meal
and Break Periods
•
•
•
Not required by FLSA, but required by Connecticut state
law.
“No person shall be required to work for seven and onehalf or more consecutive hours without a period of at
least thirty consecutive minutes for a meal.”
Meal periods are considered non-working time if:
•
•
•
•
•
at least 30 minutes in duration; and,
employee is completely relieved of duties
Meal periods are compensable if the employee is
frequently interrupted.
All Breaks Less Than 20 Minutes Are Compensable Time
Issue: Auto-Deducts For Meal Periods, Working Through
Lunch
Lectures, Meetings, Training Programs
Compensable Time Unless All of the
Following Criteria are met:
• Attendance outside of regular working hours
• Attendance is voluntary
• Course, lecture, or meeting not directly related
to the employee’s job
• Employee does not perform any productive
activities during attendance
MISCLASSIFICATION
EXEMPTIONS – No Overtime Required
• Employees Who Are “Exempt” Are Not Entitled
To Overtime
• Employees Are Presumed To Be Non-Exempt
-- It Is Employer’s Burden To Prove Exemption
• Exemptions – Administrative, Professional,
Executive, Computer Related Occupations,
Outside Sales
• Job Title Is Irrelevant
• Paying Someone A Salary Does Not Make Them
Exempt
• High Salary Not Determinative
White Collar Exemptions - Salary Basis
White-Collar Exemptions
• Exempt Duties + Paid Salary basis
• Salary basis – Minimum salary of $455/wk
(Federal) or $475/wk (Connecticut)
• Not reduced for variations in the quality or quantity of
the work performed;
• Must be paid full salary for any week where any work
performed, but need not pay for any workweek in
which no work is performed; and
• Deductions cannot be made for absences occasioned
by the employer or by the operating requirements of
the business
Permissible Deductions
• Exceptions for initial and terminal weeks
of employment;
• Deductions for full days (non-illness);
• Deductions for full days pursuant to plan
or policy;
• Deductions for FMLA absences;
• Deductions for disciplinary action.
Executive Employees’ Duties Test
• Whose primary duty is management of the
enterprise in which the employee is employed or
of a customarily recognized department or
subdivision thereof;
• Who customarily and regularly directs the work of
two or more other employees; and
• Who has the authority to hire or fire other
employees or whose suggestions and
recommendations as to hiring, firing,
advancement, promotion or any other change of
status of other employees are given particular
weight.
Professional Employees’ Duties Test
• Whose primary duty is the performance of work
requiring knowledge of an advanced type
(defined as work which is predominantly
intellectual in character, and which includes
work requiring the consistent exercise of
discretion and judgment) in a field of science or
learning customarily acquired by a prolonged
course of specialized intellectual instruction;
OR
• Whose primary duty is the performance of work
requiring invention, imagination, originality or
talent in a recognized field of artistic or creative
endeavor.
Administrative Employees’ Duties Test
• Whose primary duty is the performance of
office or non-manual work directly related to
the management or general business operations
of the employer or the employer’s customers;
and
• Whose primary duty includes the exercise of
discretion and independent judgment with
respect to matters of significance.
The (Often-Abused) Administrative
Exemption
• Ask yourself the following questions to begin the assessment of
whether a particular employee or position is exempt under the
administrative exemption:
1. Does the employee have authority to formulate, affect, interpret, or
implement management policies or operating practices?
2. Does the employee carry out major assignments in conducting the operations
of the business?
3. Does the employee have authority to waive / deviate from established
policies / procedures without prior approval?
4. Does the employee have authority to negotiate and bind the company on
significant matters?
5. Does the employee provide consultation or expert advice to management?
6. Is the employee involved in planning long- or short-term business objectives?
7. How free is the employee from direct supervision?
8. Does the employee perform “troubleshooting” or problem-solving activities
on behalf of management?
9. Does the employee have authority to handle atypical or unusual situations?
10. Does the employee have the duty to anticipate competitive products or
services and distinguish them from competitor’s products or service,
advertising or promotion work?
“Highly Compensated” Test
• Performs office or non-manual work
• Receive minimum of $455 per week
• Be guaranteed total compensation of at least
$100,000 per year
• Customarily and regularly performs one or more
exempt duties of an executive, administrative or
professional employee
• Does not apply under Connecticut wage and
hour law
Are These Positions Exempt?
• Mortgage Loan Officers
• Pharmaceutical Sales Representatives
• Other Sales Personnel
• Auditors
Thank You
Questions?
11:45am – 12:40pm
Breakout Session F
Employees Left to Their
Own Devices:
New Devices, New Technologies,
and What Lies Ahead
Jason C. Gavejian, Shareholder
Jackson Lewis P.C.
What Devices Are Currently Used?
• Mobile phones
• Tablets
• iPads
• Laptops
• Non-company owned PCs
• USB sticks
• External hard drives
• Cloud-based storage (e.g., Drop Box)
Current Devices in the Workplace
• Global Survey by International Data Group
Global Solutions of mobile device users
from March to May 2013:
• 41% use their private smartphone for business.
• 37% use their tablet.
• 47% of the respondents who did not currently have a
tablet said they planned to purchase one in the next
year.
Increase in Use of Personal Devices
• Gartner predicts that 38% of companies will
stop providing devices to workers by 2016.
• By 2017, half of employers will require
employees to provide their own devices.
Source: http://www.gartner.com/newsroom/id/2466615
Risks and Solutions
• What are the potential problems with allowing
employees access to company email on their
personal mobile devices?
• How can that data be lost? Intentionally or
unintentionally?
• What are the risks associated with losing that
data?
• What technical controls can I put in place to
minimize those risks?
• What can I do to limit the company’s liability?
BYOD Policies
• “Bring Your Own Device.”
• Employees utilize these devices to perform work
for you:
• Whether company provided or employee’s personal
device
• Result: “dual-use” device:
• Both personal and company data and activity
• Handling personal matters while at work— more difficult
to monitor
• Why allow it? You may not have a choice!
Advantages for the Company
• Expected in today’s fast paced and instant
gratification environment:
• Tablets and smartphones are replacing traditional
PCs & laptops
• Cost savings:
• Is it really? Security; Reimbursement, Internal
Service, & Risk of lost devices
• Less bargaining power in cellular and data plans
• Improves employee productivity and
availability:
• Always reachable, employees are familiar with
device functions and capabilities
Advantages for the Employees
• Mobility:
• Work remotely: Home and on the road
• Work/life balance:
• Good Technology Survey:
•
•
•
•
•
•
76% of enterprises support BYOD;
80% of people continue working when leave the office;
7 extra hours/week = 365 hours/year;
50% check work email in bed;
38% at dinner table; and
57% on family outings.
• Personalization/familiarity:
• Employees know their devices
• Choice:
• Eliminate the need for two devices
• Allow employees to choose own device
Risks & Challenges
• Upgrades: Too fast for Company to keep up
• Data stored on mobile/personal devices not
owned by the Company:
• Corporate information and trade secrets
• Personal information of employees and/or customers
• Mixing of personal and corporate data
• Malicious software attacks
• Compliance risks:
•
•
•
•
HIPAA
Encryption (MA & NV)
Client demands
e-Discovery
How Can that Data be Lost?
Intentionally or Unintentionally
• Lost or stolen devices
• Consultants using their own PCs to access your internal
network
• Employees uploading sensitive data to document sharing
sites (dropbox.com, etc.)
• Sales teams copying customer lists to their USB before
they leave the company
• Employees emailing themselves, or others, company
information
• Accessing company email on their own personal iPhone
or other mobile device
• Employees accessing “company webmail” from their
home PC (downloading attachments)
• Employees upgrading to a new mobile device (discarding
of the old)
What are the Risks Associated
with Losing that Data?
•
•
•
•
•
•
Data loss
Financial loss
Public relations
Negative publicity
Loss in customer confidence
A couple of statistics reported by Cisco Systems in
their Whitepaper titled “Data Leakage Worldwide:
Common Risks and Mistakes Employees Make:”
• 46% of employees admitted to transferring files between
work and personal computers when working from home.
• 13% of those who work from home admit that they
cannot connect to their corporate networks, so they send
business email to customers, partners, and co-workers
via their personal email.
Technical Controls to Minimize Risks
• Have a strategy
• Proxy Servers to control access to filesharing web sites and personal email
accounts
• Data encryption
• Anti-virus and spyware protection
• MDM (Mobile Device Management)
software and enforcement
Who is Affected by a BYOD Program?
• Legal
• Human Resources
• Finance
• Communication/Employee Relations
• Information Technology
Policy is a Must
• Put employees on notice; consequences to
employee should something happen.
• Make decisions about which devices, platforms,
networks can be used.
• Clearly state company ownership of information.
• Company ability to access and control that
information.
• Company ability to remove data from the device
upon departure.
• Remote wipe/MDM (Mobile device management).
Dealing with BYOD -Key Elements of BYOD Policies
• Eligibility:
• Eligibility requirements
• Device support limitations
• Risk and responsibilities
• Access limitations:
• Role/Title/Geography
• Applicability of other policies
Dealing with BYOD -Key Elements of BYOD Policies (cont.)
• Conditions for reimbursement:
• Device purchase and/or replacement
• Plans
• Limitations (e.g. max amount)
• Substantiation of expenses
Dealing with BYOD -Key Elements of BYOD Policies (cont.)
• Security:
• Prohibit:
• “Jail Breaking” or “Rooting”
• Modifications to device hardware or operating
software beyond routine updates
• Process and timing for reporting loss, theft, new
device, unauthorized access, and cessation of
employment:
• Remote Wipe
• Password and/or encryption requirements:
• Encryption required?
• Failed Login
Dealing with BYOD -Key Elements of BYOD Policies (cont.)
• End-User (employee) support:
• Define what devices are supported.
• Define types of support provided:
• Applications, services, scenarios
• “Self-service”
• How to request support.
Dealing with BYOD
Key Elements of BYOD Policies (cont.)
• Data:
•
•
•
•
Classify devices, users and data accessed.
Clarify ownership of apps and data.
Establish allowable apps and banned apps.
Employee exit procedure.
• Monitoring:
• Balance the expectations of privacy:
•
•
•
•
Reserve right to monitor.
Voluntary acceptance of program.
Explicit consent in writing.
Notice postings (Walls, Login Screen, Homepage)
(REQUIRED! Conn. Gen. Stat. § 31-48d).
• City of Ontario v. Quon, 130 S.Ct. 2619 (2010)
Dealing with BYOD
Key Elements of BYOD Policies (cont.)
• Policy Violations:
• Clear on consequences:
• “Up to and including termination”
• May need to notify business partners
•
•
•
•
Guidelines on device configuration
Safety (e.g. vehicle use)
Plan for breach
Develop process for litigation preservation,
data deletion, device and security updates
• Training
Privacy Issues
• Different throughout the world
• EU most restrictive
•
•
•
•
•
•
•
Adapt for locations/countries
Encryption
Do you need to get possession of device?
Storage card
Handling old devices—destruction
Lowering expectation of privacy
Accessing truly “personal” information/content:
• Multiple email accounts
• GINA/Disability Information
• Need to access device to update software; monitor up
to date
• Privileged communications
• Stengart (N.J. Supreme Court)
Privacy Issues (cont.)
• Tracking software/apps:
• Find My iPhone:
• Features include tracking location, remote erase.
• Android Lost App:
• Features include viewing SMS messages, erasing SD
card, taking remote pictures.
• mSpy/Webwatcher/keylogging/spyware:
• Monitor calls, track messages, read emails,
“bugging”, websites visited, keystrokes typed.
• Additional legal issues: e-Discovery
obligations:
• Preserving data in connection with litigations.
Additional Legal Issues
• Safety:
• Mobile device use and driving
• Unions
• Employee Conduct:
• Negligent hiring/supervision
• Discrimination, harassment, retaliation
• An employer may be held liable for an employee’s
wrongful acts if the employer knew or had reason to
know of the risk the employment created
• Doe v. XYC Corp., N.J. Super. 122 (2005) (Court found
employer liable as it had duty to investigate and
respond in case of alleged negligent supervision of
employee who was criminally charged with child
pornography using workplace computer.)
GPS and Tracking Apps
• Tracking employees using GPS and/or
phone tracking ability:
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Real-time updates
Streamline travel
Taking breaks?
Tracking time?
• Generally, no expectation of privacy in
employer-owned phone, but what about
BYOD phone?
• CT Law
GPS and Tracking Apps (cont.)
• Tips:
• Create a GPS tracking policy
• No expectation of privacy in employerowned property
• Only monitor during work hours
• Focus only on relevant information:
• Impacting job performance
• Interferes with job performance
• Ignore the visit to the AA meeting at lunch time…
• Know the applicable laws (TX, DE: limit to
vehicles) (CA, MN, TX, DE: consent)
What Is Data Breach?
• Unauthorized use of, or access to, records
or data containing personal information.
• Personal Information (PI) typically includes:
• First name or first initial and last name in
combination with:
• Social Security Number
• Driver’s Licenses or State identification number
• Account number or credit or debit card number in
combination with access or security code
• Biometric Information (e.g. NC, NE, IA, WI)
• Medical Information (e.g. CA, VA)
• PI typically maintained where?
• Human Resources-Applications, FMLA, Disability,
etc.
• Accounting-Payroll documents
• Benefits-Health, Vision, Dental
How Does a Data Breach Occur?
• Loss, theft, improper access, inadvertent
disclosure:
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The lost laptop/bag
Inadvertent access
Data inadvertently put in the “garbage”
Theft/intentional acts
Inadvertent email attachment
Stressed software applications
Rogue employees
Remote access
Wireless networks
Peer to peer networks
Vendors
Data Breaches - Why does this matter?
• Fines, penalties, settlements:
• State Attorney Generals:
– Vary By State:
» Multipliers: Michigan permits civil fines of not more
than $250 per failure (each person), with a maximum
of $750,000.
» Length of notification delay: Florida imposes fines
when notification is not provided within the statute’s
mandated time frame (45 days). Calculate the fine as
$1,000 per day for the first 30 days, and $50,000 for
each 30 day period thereafter with a maximum fine
of $500,000.
• Health and Human Services:
– Penalties and settlements in the millions of dollars.
• Private cause of action:
• 14 states have some form of private action.
Use of Devices and Data for Litigation
• To defend cases:
• Wage and Hour cases:
• Determine worked time using data
• Use data to identify meal and rest breaks taken
• Could be used for credibility purposes
• Harassment, discrimination and retaliation
cases:
• Photographs, texts and call history to refute claims
Use of Devices and Data for Litigation
• Possible sources of liability:
• Wage and Hour issues:
• Checking email and texting outside of work hours
• Compensable time?
• Invasion of privacy:
• Tracking employee whereabouts after hours
• Apps that take pictures remotely
• Destruction of data and/or evidence:
• Remote access to company’s servers
• Deletion of photos, texts or other evidence
What Is Next?
• Google Glass
• Smart Watches
• Other “Wearables”
Questions?
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