Yesterday, I had the opportunity to speak to the IASA Northeastern Conference on a favorite topic of mine of late — Privacy and Data Breaches in the workplace.

Of course, that sounds kinda of boring.

So my presentation is actually called the title of this post: “The Rise of Smartphone Fueled, Social Media Addicted Workplace Zombies.”

Much catchier right?

Speaking before the Insurance Accounting & Systems Association (IASA) Northeastern Chapter at their 54th Annual Regional Conference was great fun though.

In my talk, I highlighted items like Business E-mail Compromise scams, Ransomware, and yes, even workplace zombies.

What do I mean by that? Well, too many of us (including me at times) stare at our phones and sometimes respond to e-mails or click without thinking.  (Think Before You Click would make the name of a good book; fortunately, I wrote a chapter in that very book a while back.)

Protecting workplace data IS about thinking. It’s about protecting personnel files, or benefit information, or retirement plan data.  It’s about protecting trade secrets or just plain confidential information.

It’s about building a CULTURE of data privacy. Where employees buy in that protecting data is a core value and where employees are REWARDED for good data practices while enforcement (with a bit of punishment where needed) is encouraged by all.

It’s not the most exciting topic to be sure but everyone wants to be protected from the zombies, right?

I gave a similar talk early this summer as keynote lunch speaker for the ADNET Worksmart conference and it worked so well, word got around.  Maybe data privacy can be interesting after all.

My thanks to IASA for the invitation and opportunity to speak to the group yesterday.

snapchat1I recently gave a presentation on social media to a local non-profit and had the opportunity to review some of the latest statistics when it comes to the use of social media.

Frankly, I knew that there has been a shift away from Facebook for some younger people but even I was surprised by the trendlines.   It’s happening much quicker and in bigger numbers than you might think.

And even more surprising, the big winner is: Snapchat.

Yep, the little app that I talked about in 2013.  (Think about how quickly and rapidly the technology has changed in less than four years.) Put another way, the disappearing social media sites that were just getting started are now big.

How huge? According to a new study of what social media sites college students use first, fifty-eight percent of college students said they open Snapchat first, compared with 27 percent who chose Instagram, 13 percent who said Facebook and the 2 percent who opt for LinkedIn.

Another recent survey by Pew Internet found that 56 percent of smartphone users between 18-29 years old use auto-delete apps like Snapchat. That is more than four times the share of users between 30-49 years told.

(Teen usage is even higher with Facebook as the fourth most popular app, behind Snapchat, Instagram & Twitter, according to a Piper Jaffray Fall 2016 study.)

Let’s not, however, write off Facebook just yet.  A whopping 79 percent of online users are still on Facebook.  But these overall statistics show that Facebook has lost it’s exclusive hold on younger online users.

From an employment law context, this continues to cause all sorts of headaches.

With disappearing snaps, for example, it can be difficult for employers to track down and monitor harassment in the workplace. (The fact that some Silicon Valley companies are under scrutiny is perhaps not that surprising, if still disappointing.)

And when it comes to document retention, in the case of a lawsuit, apps like Snapchat are a challenge as an employer tries to preserve relevant information.

For employers, I think it’s important to recognize that we’re in the next generation of social media apps.  If you’ve just caught up to Facebook, you’re already behind the curve.

What may be next? That’s hard to predict.  Some teens I know are using apps like Musical.ly to share content.    (Never heard of it? Well, over 100M users are on it.)

Other types of live broadcasting apps, building off of Facebook Live, continue to grow as well.

Employers would be wise to expand their horizons. A broad social media use policy defining proper use when it comes to the workplace is still a key component.  While you may be on Facebook, the generation entering your workplace just isn’t on Facebook as much anymore.

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

In the course of my litigation cases, I’ve had a good-natured argument at times with a few counsel who represent employees about the mindset of employers.  The argument I’ve heard from them is that employers are too cavalier in firing employees and just go about hiring someone else (someone younger, they argue).

headahbBut what I’ve heard from my clients over the years is something different.

Typically, the decision to fire an employee is tough, made only after a series of internal conversations.  Employees with performance issues weigh on the supervisor’s minds — the struggle between trying to help the employee improve while still making sure that the needs of the business get done.

Mostly they get it right. But firing a poor performer doesn’t typically solve the issues for employers. Rather, they then need to find the RIGHT person to fill that position.

Hiring the right person is hard.   Just the process of searching for that person can sometimes feel like the proverbial needle in the haystack.  Online resumes come in by the dozen and business pressures make it difficult for employers to just find the time to parse through the resumes and interview candidates.

The headaches with hiring have only gotten worse over the last decade as well.

New laws have been put in place that place restrictions on what employers can and cannot ask and when they can ask those questions. And further restrictions on things like non-compete agreements in certain professions make hiring the right person all the more important.

For example, “Ban the Box” is now the law in Connecticut. Have you amended your employment applications to address this issue? Restrictions on the use of credit reports were put in a few years ago. Have you revised your process accordingly? And how can you search social media without running afoul of laws that ban “shoulder surfing”?  Do you give employees an “offer letter” that outlines the terms of their employment as Connecticut law requires?

I’ve talked about some of these things in prior posts, but I’m going to expound upon it further at our firm’s upcoming Labor & Employment Law seminar later this month.  You can register for the program here; space is very limited at this point.

Are there other topics related to hiring that you’d like to hear addressed at the seminar or on the blog? Be sure to post a comment so we can incorporate that in our free presentation.

pokemonRecently, I had the opportunity to revisit a social media policy I had reviewed several years ago.  (Check back to this post from 2008 to see how far we’ve really come.) In doing so, I was reminded — once again — how quickly the tech world is changing and how policies need to continually adapt.  It seemed so quaint — with references to MySpace, Foursquare, and even LiveJournal.  No mention of Snapchat, Instagram, or Vine.

And then I thought of the technology news from the last week demonstrating the dramatic rise and use of Facebook Live and Pokemon Go.

Facebook Live is a capability to broadcast — live — from anywhere (at least with a cell phone connection) at any time.  It was used in dramatic effect in the shootings in both Minnesota and Dallas.

Pokemon Go is something different.  It is a brand-new mobile game app with social media capabilities (you can join a “team”) where users search the real world for virtual monsters that appear on your cell phone in an augmented reality way.  In just a week, it has nearly as many users as Twitter.

Both are going to cause employers big headaches in the months ahead — for differing reasons of course.

There’s no doubt that the rise of livesteaming apps is something new and revolutionary.  And your social media policy should definitely be updated to reflect that. Imagine your workforce broadcasting live from your office — all under the guise of engaging in “protected concerted activity”.  How should the employer react when such events are occurring in real-time?

A policy can help to provide some answers but it’s the exercise of thinking about what your response will be that can be just as helpful.

And then there’s apps like “Pokemon Go” — which are nearly unparalleled in their adoption.  We’ve already had our first firing related to Pokemon Go and that’s no doubt the beginning.  Forbes reports that employers are “nonplussed” with it.

But the response to this app is a bit easier.  If it interferes with an employee’s workplace productivity or is a drain on your resources, it’s appropriate to limit it.

If your policy hasn’t been updated in a few years, use the rise of new apps as an excuse to bring it up to speed.  You can’t keep up with everything but that doesn’t mean you should ignore them either.

And now, if you’ll excuse me, I need to go look for Drowzee.

(Photo credit: Imgur.)

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

yankees-300x300On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler.  Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.

So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.

The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7” rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”.  New: It applies to Facebook and other types of social media.

And now, even to Facebook “likes”.

In the case, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

Continue Reading Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

HallofFame200pxV32007 seems like yesterday.

And yet, eight years after I started this blog and over 1800 posts later (and a Hall of Fame entry), I’m pretty sure 2007 WASN’T yesterday.

So for this year’s anniversary post, I thought I would capture what I think are some of the biggest storylines from the last eight years.  This isn’t definitive, but there are a few things that stand out.

1.  Social Media – Well this first one was easy, right? What’s amazing is that I didn’t even talk about Facebook and its impact on employers until fall 2008.  In that post, I talked about whether employers should use those sites in their hiring practices.  Since then, there seems to be no corner of the workplace that hasn’t been touched by social media. And yet, I’m also struck by the fact that there is a perceptible sign that we’re seeing this area mature. Less discussions about whether to have a social media policy. And less handwringing about whether social networking site posts are discoverable.  Yes, there are still unsettled areas on this  — the NLRB’s guidance continues to shift — but social media isn’t nearly as foreign as it was back in 2007.

2. The Return of the NLRB – Any discussion of the last eight years certainly must discuss the NLRB under the Obama Presidency.  There are those who complain about the political nature of the agency, but it’s always been a creature of various Presidential administrations.  But what we’ve seen over the last few years in particular is use of cases and regulations to chart new ground (or reverse older ground) in elections, workplace communications, and, last month, joint employer status. As such, we’ve seen union membership increase in several states, like Connecticut.  Make no mistake: On this day after Labor Day, unions and labor law have received a big old proverbial shot in the arm the last several years.  The election in 2016 will be a pivotal year in determining whether this changes continue.

3. The Battle Over Disabilities – True, there are plenty of other noticeable changes since 2007, but one that barely gets mentioned is the Americans with Disabilities Act Amendments Act.  It was one of the last employment law bills signed by President Bush and became effective January 1, 2009.  The Act changed the debate on litigation involving employees with disabilities. Instead, the Act said that courts should interpret the act to provide the coverage to individuals “to the maximum extent permitted.”  For example, previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids. Now, employers and courts must ignore those measures.   As a result, ADA cases have moved from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against).

While EEOC disability charges increased markedly from 2008 to 2010 – that probably had more to do with the economy than anything else. Claims have levelled off since then and have even dropped from their peak in 2012.

A lot has changed since I started this blog in 2007.  I thank you all for your continued readership.  We’ll see what the next year brings.