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.

PAREXEL INTERNATIONAL, LLC, 356 NLRB No. 82 (2011)

The animation is based loosely on the facts of Parexel International.  Some changes were necessary to make it concise. 

Another interesting PCA case.  Here is my summary (I skip a large procedural issue):

South African employees seemed to be getting better treatment (and pay) than other employees.  One nurse talked to a South African employee about his preferable treatment and later raised the issue with her supervisor.  A manager, an HR consultant, and the nurse had a meeting to discuss the source of a rumor that South African employees were being treated better than native born Americans.  The nurse told the manager and HR consultant that she had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor about it.  Some days later the employee was fired.

The General Counsel alleged that the nurse had engaged in protected, concerted activity and had been unlawfully discharged for that activity.  The judge found that the nurse had been discharged for those conversations, and that the discharge had been in part a "preemptive strike" designed to stymie similar complaints among other employees.  However, the judge found that while the nurse's complaints were of a protected nature, she had not engaged in any concerted activity.  Because the nurse had not engaged in protected concerted activity, he recommended dismissal of the allegation.

However, in a 2-1 decision, the Board reversed and ordered the reinstatement of the discharged nurse.  Whether or not the nurse had engaged in PCA, the Board ruled that a termination designed to nip-in-the-bud employee complaints about wage discrepancies was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights.  On page 4, the Board writes,

"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act.[Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."


Full decision here.

What's Different about NFL Contract Talks in 2011?

The threat of a lockout in the NFL still seems to be an imminent possibility.  As that the possibility draws closer, both the owners and the NFL Players Association are making efforts to win the support of fans to their respective side of the dispute.  The battle for the support of the fans who are the driving engine of the business is nothing new to NFL contract negotiations. But what is new or different about the battle for the hearts and minds of the fans this year?


Online Campaign and Use of Social Media
In a New York Times article, "In N.F.L. Labor Fight, Battlefield Moves Online," Richard Sandomir reports that, "the two sides are jabbing, countering and needling each other on Twitter, Facebook and on Web sites devoted entirely to the possible lockout. Their online dueling is designed, in part, to woo fans to their corners."  When the last agreement was reached in 2006, Facebook was still a college campus fad, and Twitter was just being born.  The cyber-landscape has shifted since then.
  
Fantasy Football 
 Fantasy football is of course not a brand new new thing, and certainly was quite popular the last time the parties negotiated.  But fantasy football continues to be a growing pastime and business and its impact surely only grows stronger.  From Wikipedia:
"The explosive popularity of fantasy sports, coupled with the availability of venues showcasing numerous live football games via satellite, has had significant effects on football viewing and rooting habits among participants. Fantasy sports players watch more game telecasts, buy more tickets and spend money at stadiums at a much higher rate than general sports fans...The NFL entered into a reported five-year, $600 million deal in 2006 with Sprint that was driven at least in part because of fantasy sports, allowing subscribers to draft and monitor their teams with their cellphones."

But how should fantasy football impact fans' sympathy in labor disputes?  It could really cut both ways.  On the one hand, fantasy football players are actually fantasy football owners.  They draft players and make executive decisions about who will be on their teams.  By playing owners, will they be primed to empathize with ownership in the labor dispute?

On the other hand, fantasy football shifts the focus from teams to individual players.  From Wikipedia:

"Critics charge that rather than supporting a favorite team in any one game, some fantasy owners may instead support the players on their fantasy rosters."  Fantasy football owners know and care about the players of a vast number of teams.  They know about small details of the players' health and lives that might impact their perfomances such as minor cases of turf toe or a breakup with a girlfriend.  So, if playing fantasy football makes fantasy owners fans of players rather than fans of teams, that could drive their allegiance into the corners of the players.

Whichever side the fantasy owners come down on will be important. They watch more and spend more than the average fan and will likely be angrier than average at somebody when they can't watch their games.  Additionally they are a vocal group and will lead opinion among other fans.

Political Affiliation of the Fans
I don't have any historical data on this, and so I don't know if it represents a change, but a marketing study shows that NFL fans tend to be right of center politically and incidentally more likely to vote than average TV watchers.  Below is a fancy dot graph from that study.  Contracts run up in several pro sports this year.  Of those up for negotiations, you can see below that NBA fans are the most left leaning, MLB fans are slightly to the right of center, but less so than NFL fans, and NHL fans are further to the right than NFL fans. Of course leaning right generally means leaning away from support of organized labor.  Will the political leanings of the fan bases affect their support in contract negotiations?

Go to the League's website at http://www.nflplayers.com/about-us/2011-Lockout-Central/ or the player's website at http://www.nflplayers.com/about-us/2011-Lockout-Central/ to follow the story.