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David Foley's Labor and Employment Law Blog

Saturday, April 30, 2011

Technology in LEL Symposium Day 2

The second day of the symposium was filled again with great panels.

The first session of the morning was “Electronic Invasion of the Workplace: the Good, the Bad and the Aural?” moderated by Doug Dexter with panelists Manuel Ocasio, Bryan Seiler, Steve Sykes, and Darnley Stewart weighing in on issues which included largely those arising from the expansion of human tracking devices into the workplace.  Ocasio, an HR manager for a large Catholic hospital, explained theories behind why employers are interested in tracking their employees and gave a detailed description of the new technologies including how they operate.  The use of “beacon” badges that he described was particularly interesting. Apparently, in a growing number of hospitals, all of the staff wear badges that act as radios and through RFID triangulation keep track of where the staff members are at all times.  Additionally, some of the badges can be used by one employee to locate another employee.  The seeking employee simply pushes a button and says, “Locate Dr. Grey” whereupon the badge responds something like “Dr. Grey is in the linen closet on Floor 2.”  The badge apparently does not yet add, “Dr. Sheppard is also in the linen closet on Floor 2,” although someone watching a screen showing little dots may have noticed.

Sykes, a union-side attorney, offered his interesting perspective on the issue.  As Sykes summarized, for the most part unions are not in favor of bringing these tracking technologies into the workplace.  When an employer enacts such policies, Sykes noted that unions can file unilateral change charges with the NLRB and discussed the strengths and weaknesses of such charges.  Sykes noted that tracking could amount to unlawful surveillance under 8(a)(1).  He went on to explore a union’s right to the information from the tracking technology in policing the contract and representing employees in grievances.

Seiler provided practical advice for the processes which employers should engage in before they bring in new technologies, noting that the new technologies can have impacts across departments that any one department might fail to consider. Seiler also spoke about providing robots as a reasonable accommodation.

Steward gave the plaintiff’s perspective on tracking devices listing potential causes of action and analyzing some relevant cases.  According to Steward, privacy is gone, and although there are potential constitutional causes of action relating to an invasion of privacy, they were not the most hopeful.  State constitutions have better potential, but even under California’s state constitution, plaintiffs have not had much success.  Next, Steward explored common law invasion of privacy claims as well the Electronic Communications Privacy Act and the Stored Communications Act where plaintiffs have faired better.  Steward noted that tracking can be done discriminatorily and in retaliation which could violate various laws.  Steward noted that various state provisions may give employees some protection, including Connecticut which has a law that obligates employers to give their employees notice of tracking.  Steward also explored ways that plaintiffs can go on offense with tracking devices including asking for time and work studies as part of discovery.

Next Cynthia Sass moderated, “Discovery and Subpoenas for the Next Generation of Workplace Technology”.  Panelists Judge Elizabeth LaPorte, Maureen O’Neill, and Alvin Velazquez gave very practical insights into the discovery process.  O’Neil spoke about discovery in relation to social media, blogs, text messages, twitter feeds, devices, as well as complicated issues stemming from cloud based data storage.  Velazquez described the ways that unions are getting more sophisticated with using the web in organizing and the ways that employers are using the web to track them including “Facebook scraping”.  Judge LaPorte spoke, among other things, about preservation obligations and “claw back” of privileged materials.  The judge encouraged parties to speak with each other early on about the scope of the discovery they will be seeking.

Following the discovery panel was “Technology as a Research, Communications and Collaborative Tool in the Practice of Law: Retrospective and Prospective” moderated by Adam Forman.  Panelists Patrick V. DiDomenico, Adam Klein, Howard Lenow,  and Daniel Schwartz weighed in.  Forman humorously brought us back to the ancient past, ten years ago, when the Labor and Employment Technology group began.  Dan Schwartz, famously known for the Connecticut Employment Law Blog talked about changes in developing one’s practice from networking in person – to the yellow pages – to social media and sites like Quara and Ask a Lawyer (which have some ethical issues). Lenow, a union-side attorney told us that size does matter; and that smaller and quicker was better.  Lenow had much love for Apple products, including the iPad on which he can contain his entire trial presentation.  Klein, a plaintiff-side attorney noted that the asymmetrical advantage that large legal libraries once gave defense firms over smaller plaintiff firms has been taken away by technologies such as Westlaw and Lexis and that the same advantages that the large firms had in document management systems are now being equalized by cheap and effective document management systems.  DiDomenico explained what the field of Knowledge Management is and how it is helping firms avoid waste and draw more efficiently from their knowledge sources.  The session ended with the group giving some of their favorite apps which included Goodreader, Evernote, Penultimate, Notes plus, Adobe ideas, fast case and lawstack.  The computer they were presenting on unexpectedly decided to update and shutdown before their presentation was over, which showed that while technology has come a long way, the kinks will probably never be quite worked out.

Over lunch, Magistrate Judge Francis, S.D.N.Y. spoke on preservation and spoliation issues, in light of decision in Orbit One Communications (S.D.N.Y., October 26, 2010) and in so during turned our stomachs with talks of sanctions.  The judge noted that asymmetrical resources tend to lead to less cooperative discovery relationships between parties.  He spoke at length about preservation and spoliation and the grounds for sanctions under his and other jurisdictions.  Regarding the reasonable expectation of litigation, the judge noted that such an expectation has both empirical components and case specific ones.  For example, you might consider the percentage of cases at a given stage, say an EEOC charge filing, that end up in federal court and also whether the particular plaintiff has a history of litigiousness.  Regarding the use of reasonableness and proportionality in preservation, the judge noted that it is dangerous for a party to make a determination about what is reasonable and that there is some arrogance in a party evaluating a case as weak and therefore destroying documents under a proportionality rationale.  The judge also spoke about state of mind and the differences in jurisdiction about whether sanctions should come simply for negligent destruction or if a more nefarious state of mind is warranted.  The judge hopes that the rules committee will be helpful in providing guidance.

One of the most interesting presentations came next when Heather Morgan moderated “Investigating and Forgetting on the Web”.  Panelists Steven Bennett, Mark Risk, and David Thompson, spoke about the problems being created by the utter lack of privacy on the web.  Thompson whose book “Wild West 2.0: How to Protect and Restore Your Reputation on the Untamed Social Frontier” is a top seller on Amazon was full of information about how and why the web is destroying privacy as well as countermeasures that people can take to protect their privacy and online reputation.  Thompson quipped that a rumor had spread that the CIA was mad that their project called Facebook had spun out of their control.  According to the rumor, Facebook was an experiment by the CIA to see if people would just tell them all of the information they wanted to know; apparently it worked too well.  Thompson spoke about the dangers of cookies and behavioral ad tracking and the use of proxy servers to defeat them.  Thompson advised us never to fill out a mall survey again, to be careful about what we put on Facebook, and to consider not owning property in our own names.  Risk and Bennett weighed in on the issues noting the legal problems that can be triggered by an employer’s use of the web-found data.

The symposium concluded with “Technology Tools and Legal Ethics” moderated by Steven Ury.  Panelists Prof. Michael Green, Cara Greene, and Ray Stanford weighed in.  The group discussed Model Rules 1.6, 4.2, 4.3, 5.1, 5.3. and 5.7 in the context of various communications on social networks including friending judges and colleagues as well as commenting potentially legal advice on Facebook and other issues.  The group colorfully brought us through some hypos and its members were quite insightful about rule application, cases in various jurisdictions, and the gray areas that are out there.

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