david foleys blog

David Foley's Labor and Employment Law Blog

Monday, February 21, 2011

The March of Technology

Watson the IBM computer recently entered into a much hyped Jeopardy tournament with former champs.  The contest was in some ways reminiscent of John Henry's contest against the steam powered hammer. Perhaps the only way it could have lived up to the Legend of John Henry would have been if  a savant super-genius had gone toe-to-toe with the machine, bet everything in Final Jeopardy, won, and died of mental exhaustion on the stage.  Thankfully, no one was injured in the contest.  Unfortunately, the machine won.  In fact, it dominated.

The loss causes us to think about technology's impact on our economic value.  Andy Kessler of the Wall Street Journal has a provocative article on the subject: Is Your Job an Endangered Species?  and Above the Law's Eli Mystal, reports with much  wailing and gnashing of the teeth that Watson is out to displace young attorneys.  As Kessler points out, there are bright spots to the technological advancements as new jobs have always been created in the place of those made obsolete.  The key is perhaps to follow the technological trends.

I am not going to focus on the dreary prospect of whether jobs  in labor and employment law are becoming obsolete, but will take Watson's run at Jeopardy as a chance to think about ways that technological advancements are changing things in labor and employment law.  Here are 3 ways that technology is changing labor and employment law:

1. Access to Data
Employers now have access to far more data about employees and job candidates than they have ever had before and this access will only increase.  For instance applicant credit history is an easily obtainable data set that many employers are using to make hiring decisions.  Employers can also find out a lot of about a candidate though social media.  Moreover, simply googling an applicant will bring in more and more information over time.  This is because whether it's making the 3rd Grade Honor Roll, performing in a garage band, getting a speeding ticket, getting married or getting divorced, many aspects of our lives are now being published on the web.  The question that will need to be answered is to what extent employers may use this information in their hiring decisions.

2. Social Media: Where dissent ferments?
Although social media gives employers a powerful tool in the selection process and the ability to track employees, it also provides employees with an easy way to share their opinions with one another.  A recent study suggests that unions should focus their efforts on social media, especially when trying to organize women and young people.  As the efforts at one bottling company in upstate New York showed, the anonymity of a blog can certainly change the landscape of a union organizing campaign.  In addition to such focused use, I expect to see more organic activity arising in unorganized settings, situations where a few coworkers connected by social media vent with each other about work related issues.  Venting is nothing new, but the internet provides a platform as never before.  Beyond general social media, websites are developing where employees and former employees rate or trash their employers and coworkers; libel specialists are no doubt watching eagerly.

3. Smart Phones, Tablets, Email; Work/Life Line Blurs
As more and more employees have smart phones, tablets, and other ways to perpetually be at the beck and call of their employers, the once fairly clear distinction between working hours and personal hours has blurred considerably.  The most obvious implications for such blurring involves wage and hour laws: are employees being compensated for the time they spend answering phone calls and emails at home?  Additionally, this blurring of work/life is sure to appear in Title VII cases: What happens when an employee gets the 3 a.m. phone call and gives the wrong answer? O.k., but what happens if the employee gave the wrong answer because he was on necessary medication?  What happens if all of the other employees answer their phone calls, texts and emails whenever the boss beckons, but a religious employee won't do so on the Sabbath, holy days, or anytime he is volunteering at his local church (which happens to be almost every night)?

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