More on Technology

Two more follow ups on technology in labor and employment law:

1. New Ways to Harass:
Josh Bernstein at New York Employment Lawyer explains a case of sexual harassment via text messages and reminds us that new technologies present new ways to harass.  Bernstein concludes,

"Modern technology allows individuals to communicate without physically interacting, and a wealth of academic literature suggests that this physical disconnect leads individuals to act in a much more blunt, aggressive and exaggerated manner than they would if they could see the other person they are communicating with or hear their voice. Moreover, modern communications technology leaves a permanent record of conversations that previously might haven given rise to a he-said she-said in any sort of legal dispute. Given these trends, “textual harassment” is quickly entering the discrimination law vernacular."

In terms of emerging trends, if you follow the developments in schools where kids are being bullied via electronic communications, and even "bullying" their teachers in the same way, it's pretty clear that when these kids grow up and enter the workforce some of these behaviors will enter it with them (although there is at least some hope that the behaviors will dissipate with age).  As Bernstein's post suggests, the new forms of harassment aren't waiting around for the new generation, but are with us now.  Some employer-side attorneys see such progressions as yet another reason to implement strict policies against use of new technologies, but others have more lienient advice for their clients. For instance, Jay Shephard of Gruntled Employees, writes of social media policy's,

"I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?"

These new technologies and their implications give us a lot to think about.  Wouldn't it be a good idea for labor and employment lawyers to get together and discuss these type of issues?

2. Symposium
I've learned (via the Workplace Prof Blog) that there will be a symposium on the subject at NYU New York University, April 27-29.  I'd like to attend, but kind of doubt I'll make it up there.  I'll be interested to read whatever comes out of it.  Here are the topics:

* Are You Protected? Privacy, Intellectual Property, Trade Secrets and Non-Competes in Web 2.0
* What You Really Need To Know: The Top 5 Legal and Legislative Technology Developments Impacting the Practice and the Workplace
* Telepresence and Telepresence Robots Being Used in the Workplace
* Social Media and the Global Workplace
* Public Sector Employment: Emerging Issues and their Potential Private Sector Impact
* Electronic Invasion of the Workplace: the Good, the Bad and the Aural?
* Discovery and Subpoenas for the Next Generation of
* Workplace Technology
* Technology as a Research, Communications and Collaborative Tool in the Practice of Law: Retrospective and Prospective
* Investigating and Forgetting on the Web
* Technology Tools and Legal Ethics.

I'm glad to see that on of the topics is not, "How Watson and other Super Computers are Making Labor and Employment Attorneys Obsolete."  At least not this year.

Nevettie v. Wal-Mart

In this case, the Missouri Court of Appeals found that a Wal-Mart employee who told a manager that she disgusted him and made a "very rude gesture" towards her was entitled to unemployment benefits.

According to the Missouri Court of Appeals Eastern District, (see Riverfront Times coverage here), Nevettie, a Wal-Mart employee, had allegedly already received a couple of "coachings" -one for attendance and one for performance- and so he may have been on his last leg when the events transpired. According to the Court:

"Ms. Horn [a manager] testified that on September 4, 2009, she saw claimant in the maintenance department supply room when she was going to the nearby shoe department stock area. She asked claimant how his day was going, and he "just kind of real off the wall he said just you disgust me." A few minutes later, she saw him putting away cases of toilet paper and paper towels, and she commented that the store had finally received paper towels. Claimant replied, "yeah, yeah, yeah, we did and that it's a good thing because so now we--now the people don't have to do this," and he then made a demonstration with his hand, which Ms. Horn characterized as a "very rude gesture."" (Emphasis supplied).

Ms. Horn reported the incident to Nevettie's manager and Nevettie was (allegedly) terminated for the comment and making the "very rude gesture."  Nevettie applied for unemployment.  The initial ruling by a Division of Employment Security deputy was that Nevettie was entitled to benefits because he had not been discharged for a matter related to work.  The deputy was reversed by the Division's Appeals Tribunal, who found that the discharge was related to work and that Nevettie's conduct had shown "a disregard of the standards of behavior the employer had a right to expect of the claimant."  The decision was affirmed by the Labor and Industrial Relations Commission.  However, the Missouri Court of Appeals reversed and remanded the Commission's decision.

In pertinent part, the Court writes, "in this case employer did not produce evidence that it had a policy on offensive language or conduct. The first comment was rude and disrespectful, but it was not vulgar or obscene. Neither the comment nor the subsequent gesture, was accompanied by aggressive or angry behavior. Although the gesture was disgusting, it was not confrontational...
...the evidence does not support a determination that claimant's comment and gesture were the result of anything more than simple lack of judgment. It does not establish that claimant intentionally disregarded the standards of behavior that employer had the right to expect."

The animation roughly depicts the facts as presented by the Court, although, as always, certain changes needed to be made due to technical limitations and artistic considerations.

Speaking of Technology in Labor and Employment Law

When it comes to workplace surveillance, usually you think of employers -in Big Brother fashion- monitoring the email and phone calls of their employees.  But, look out Big Brother; Little Brother has eyes too. Here are two stories in which employees are the ones doing the monitoring:

First, thanks to Sharon Steckler for sending me this Easterbrook decision about an IRS employee.  From the opinion:

"Szymuszkiewicz was in trouble at work. His driver's license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers' homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client."

Szymuskiewicz had set up his boss's email account so that every email sent to her would also go to him (an auto-forwarding rule).  This was a bad idea.  Not only did he violate the Wiretap Act for intentionally intercepting electronic communications, he didn't even intercept anything of use.  Catching nothing of use  was no defense.  Neither was it a defense that the emails were not "in flight" when he caught them as the interception does not have to be contemporaneous. (In a normal wiretap setting you think of a person contemporaneously listening in on a telephone conversation.  But would it be wiretapping to listen to someone's voicemail, where the call has already arrived?  In the context of email forwarding the Court didn't give weight to the fact that the emails had already arrived when they were stolen). 

Second is the tale of a Social Security Administration employee.  As the Molly DiBianca posts at the Delaware Employment Blog,

"Roberto Rodriguez worked for the Social Security Administration (SSA) and had access to the SSA’s databases as part of his job duties. The SSA’s policy prohibits its employees from using the databases for non-business reason. Rodriguez violated this policy when he looked up personal information about various women that he knew and had met. He looked up his ex-wife’s earnings history and the address of a woman he met at a church study group to send her flowers on Valentine’s Day.  Rodriguez was found guilty on 17 counts of violating the CFAA [Computer Fraud and Abuse Act]."

A lot of times we complain that the law can't keep up with the technology.  But in these cases it looks like the law was up with the technology and the problem may be that the employees didn't fully understand it or its consequences.

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)?

The Right to Complain about a Bully

A case reported by the BNA this morning caught my attention and the attention of  Michael Fox over at Jottings by an Employer's Lawyer.

In Street v. U.S.Corrugated, Inc.  (W.D. Ky 1.25.11), the company was having financial problems and brought in a "turn around specialist" (Greathouse) to manage.  "Unfortunately, Greathouse’s management style did not mesh well with some of the employees as he often yelled, used profanity, threw objects, made physical threats, and was generally difficult to work with." Six employees -five women and one man- complained about Greathouse's abusive behavior to a production manager.  One of the women also drafted a written complaint detailing the   abusive  behavior.  The complaints were relayed to the general manager and the CEO.  The "turn around specialist" was let go, a seeming victory for the plaintiffs.  However, five of the six who complained soon found that they too were out of jobs, purportedly due  to unsatisfactory job performance and outsourcing.

The plaintiffs made out claims of  (1) gender-based discrimination; (2) retaliation; (3) breach of expressed or implied contract; (4) promissory estoppel; (5) intentional infliction of emotional distress; (6) terroristic threatening; (7) libel; (8) slander; (9) defamation; (10) tortious interference with Plaintiffs’ ability to earn money; and (11) violation of the whistle-blower statute.  None survived summary judgment.

The BNA quotes and summarizes as follows:

   “The record here indicates that both men and women equally fell victim to Greathouse's abusive  

     management tactics,” Judge Joseph H. McKinley wrote. “Greathouse's actions were certainly 

     inappropriate, but this does not establish a Title VII claim absent the intent to target a specific gender. 

     Nothing in the record supports such a conclusion.”

     The plaintiffs also alleged they were terminated in retaliation for complaining about Greathouse's 

     alleged conduct, in violation of Title VII and the Kentucky Civil Rights Act. The court, however, ruled 

     that the plaintiffs did not engage in protected activity under Title VII or state law because their 

     complaints to management were not about suspected sex discrimination. Rather, the plaintiffs had 

     complained about Greathouse's alleged abusive treatment of all employees, male and female, the court 

     pointed out.

     “Plaintiffs obviously believed that Greathouse's conduct made their work environment a hostile one 

     and they opposed his presence at the factory and his intolerable management style,” McKinley wrote. 

     “However, Title VII only protects employees from retaliation for having opposed an employer's 

     unlawful actions, such as discrimination based on gender, age or race. There is no protection under  

     the act for employees who simply complain about the boss being a bully.” (emphasis supplied).

Fox, who opposes the enactment of anti-bullying laws, writes that this case will be used as an argument for the need of anti-bullying legislation.  Fox goes on to explain why he disagrees.

My thought is this: Although the plaintiffs "threw the book" at the employer and came away empty, there may already be a law on the books that would have protected them.  If they were employees covered under the NLRA (as opposed to supervisors, independent contractors, etc), "simply complaining about the boss being a bully" to each other would be protected under Section 7.