Worlds Colliding

George is changing clothes after a swim in cold water when he is walked in on...

  

One theme that ran through the Symposium on Technology in Labor and Employment Law was the way that technology is blurring the line between our personal and our professional lives and the ease with which anybody can access everything about us.  I am a big fan of Seinfeld and in thinking about this theme I couldn’t help but recall an episode where George Castanza was caused much trouble by his "worlds colliding".  George liked his life with his friends to be separate from his life with his girlfriend.  When his girlfriend became friends with his friends, his "worlds collided" and everything broke down; we risked losing Independent George.  This situation strikes me as a very pre-Information Age predicament.  With the advent of Facebook, LinkedIn and Google, can anyone truly keep their worlds separate?  Could George, for instance, have pretended to be an architect or a marine biologist?  Could Jerry have pretended to be married to get his girlfriend a discount on dry cleaning?  Social media and simple Google searches would probably have foiled these plans.

The problem of course is that like George, many of us want to keep our worlds from colliding.  We have multiple "worlds" including at least a work world and a personal world, and we like the different facets of our lives to have some boundaries of separation.  For instance, people feel that their work world is where they make money, and that it shouldn't be affected by how they spend, borrow, or repay their money; thus there is rising resistance to the use of credit history in pre-employment screening. Many people would not want their "friend world" meeting their "financial world", let alone their "work world" meeting their "financial world."  The idea that an employer should get a peek at your credit before or during your employment is one that offends our sense of privacy and separation of worlds.  Thus several state legislatures have passed and others are debating the passage of laws that curb the practice and the EEOC lodged a disparate impact suit against Kaplan for its use of credit history.

But credit history is just one piece of information in a multitude of data that is available to members of our various worlds.  The Information Age is upon us and our personal information is out there for the looking.  Many hiring managers check out the Facebook life of candidates.  George Castanza would probably not have gotten away with his pretence of requiring a cane to walk, if say management had seen pictures of him pushing his way out of a burning building.  Your friends may be checking how much money you make at your company's website, salary.com, or sites like app.com (federal employees).  Furthermore, your boss, coworkers, or friends can take a look at your house and see how much it's worth at sites like http://www.spokeo.com/.  Your work performance may even be rated by your coworkers at cubeduel (I hope none of my coworkers have joined cubeduel, but I refuse to log in to find out).  Keeping your information compartmentalized is likely going to be harder and harder.

How can people keep their personal and professional worlds from colliding?  As I see it, they can take measures try to limit what’s out there and available on the web, they can push for laws that restrict employers from accessing information on the web, or they can push for prohibitions on employers using certain information against them.  As to keeping things off the web, an individual can take actions toward limiting what’s out there, but my reading of the writing on the wall is that more and more will be available.  A person can limit what they say on a site like Facebook, but at some point their lack of Facebook presence may become glaring: what’s this guy trying to hide?  Moreover, you can’t keep other people from talking about you on Facebook or Cubeduel, etc.  You can, as David Thompson instructs, stop filling out mall surveys and signing up for bonus cards.  But with increased publishing of everything on the web, clever data miners and unsympathetic hackers leaking any detail in their path, like it or not you can’t keep off the grid. Even anonymous commenting on websites and blogs is being pushed out.  As to limiting employers from accessing information, there seems to be a constitutional issue with that as the right to free speech includes both speaking and listening.  Finally, limiting what employers can use against against potential and current employees comes with it the difficult (but not impossible) problem of proving that the employer has used the prohibited information against them.  As you can see, I’m not an optimist on privacy protection.

I’m not calling for an end to privacy; I am as scared about the loss of privacy as the next guy. (Besides I don’t advocate for political causes on this blog). But, I’ll offer this question anyway:  If we are going to be stuck with a loss of privacy, is this truly something new and are there any upsides?

I like to visit those historical recreations of ancient dwellings.  The last one I visited was in Moundville, Alabama.  The dwelling where the entire family lived was one room and not very big.  I remember thinking to myself, “these people had no privacy.” I shared a room with one of my brothers growing up, but compared to the people who lived there I had an incredible amount of privacy as a child.  I think most people throughout history have lived in similar close quarters.  What’s more, they lived in small intertwined communities where there were no strangers and the actions of each were the knowledge of all.  Changes in modern life have given us an unprecedented amount of privacy.  In villages of the days gone by, there was little room for secrecy.  If I did not repay a loan to a neighbor, I might expect it to be harder to get a loan from a different neighbor because likely word would have spread.  This effect kept people honest.  Anonymity has the opposite effect.  There has been an outcry that accountability is being lost in our society.  How much of that is do to our privacy/anonymity? If our reputations mattered more, would we behave differently?

On the other hand the new lack of privacy is something completely different than the old.  Where in the past, hundreds or so in your village might have known all about you, now hundreds of millions can know about you.  And of course in the past things weren’t written down for all to see forever.  If you made a passionate argument one night with a group of friends as a teenager, it is unlikely that your words would come back to haunt you when you were a town elder trying to obtain a leadership position.  But if a teenager today makes some argument on Facebook, they may have to answer for what they said twenty years later.  In a way we have outsourced some of our thinking to Google: certainly knowing that information is out there lets us keep from memorizing facts, and knowing that other people may have thought about things lets us search the web for their insights.  So when our searches are tracked by Google, in a way, our thoughts are tracked.  Surely, in past societies, people could keep their thoughts private.  And what is more central to Independent George than his ability to think about what he wants without fear of repercussion?

George was worked up because his Boyfriend George and Independent George lives were colliding, but I imagine that for most people, the place where the rubber meets the road with the loss of privacy (like in many areas) is where the lack of privacy starts to affect a person’s income.  Therefore, I think we can expect employment law to be at the forefront of the privacy debate.  I am going to read Thompson’s book Wild West 2.0, if anyone has other suggestions on good books or articles on this topic, I would appreciate it if you send me an email or leave a suggestion in the comments (anonymous comments are allowed here).

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.

Technology in Labor and Employment Law Symposium

The Technology in Labor and Employment Law Symposium kicked off this morning and has so far been quite worthwhile.  The symposium packed a lot of information and discussion into the day, and I can't hope to capture it all.  Here are small summaries and some of my own scattered thoughts on the speakers from today:

The first session began with Wendi Lazar moderating "Are you Protected? Privacy, Intellectual Property, Trade Secrets and Non-Competes in Web 2.0" where panelists Gary Glaser, Christopher Jordan (in from Germany), and Arnie Pedowitz weighed in on the ways that the increasingly global workplace is changing the landscape in this area.   I enjoyed the group especially because of its balance of employee and management-side attorneys.  A main concern addressed by the panel was that there are very different laws governing various jurisdictions and technological developments are such that a person can work from just about anywhere in the world (including jurisdictions where noncompetes might not be enforced).  The panel adressed issues such as whether a departing employee's facebook status and LinkedIn messages about his change of employer could violate nonsolicitation provisions; the blurring of the line between personal and professional use of social media made these issues nettlesome.  Additionally the panel addressed causes of action under the Computer Fraud and Abuse Act as well as the Stored Communications Act.

Next was "What You Really Need To Know: The Top 5 Legal and Legislative Technology Developments Impacting the Practice and the Workplace" moderated by Cynthia Nance with panelists Lewis Maltby, Anthony Oncidi, and Kristin Mathews.  This group covered a lot including the following:

-Social Media as a tool in hiring and firing.  Regarding hiring, I was surprised by the group's consensus that it is probably not a good idea for hiring managers to facebook stalk (not the phrase used by the panelists) job candidates.  The problem as they saw it was that the manager would become pregnant with knowledge that he could not legally use but would use anyway or at least would be accused of using.  The panelists offered the alternatives of outsourcing such background checks to third parties or having it done by a clean team within the company.  The panel was cleary concerned with the erosion of privacy, and I am sympathetic to their concerns.  I wonder though if there can really be any way to actually stop people from performing these kinds of searches.  My feeling is that the writing on the wall is that everybody will be googling, facebook stalking, etc. everybody, and that doing so will just increasingly be part of the process of getting to know people.  As GI Joe and Bill Belichick might tell you "knowing is half the battle" and people want information.  Keeping them from illegally obtaining it is one thing, but I have trouble believing that lawyers will successfully keep curious hiring managers out of facebook searches (I don't have any experience trying to do so, and so I could be dead wrong on this issue).  I am not celebrating the trend  but I think the real question is how to restrict use of the data, or how to keep it private to begin with, but not how to keep people from looking for it.
(list of topics this group covered continued)

-Social media as a way for employers to advertise

-Social networking as protected activity

-Whistleblowers

-Employer monitoring of email, internet usage

-The Computer Fraud and Abuse Act

-Electronic Communications Privacy Act

-Personal smartphone issues including distracted driving, wage and hour, and yes personal smartphone data is discoverable. 
-GPS tracking
-Social networking as evidence
-Employer liability for employee's online activity (child porn)

-Employee blogs that potentially harass their coworkers or cause a hostile work environment.

(I told you they covered a lot)

Over lunch, we had an interesting interlude from Rosanne M. Siino, Ph.D, Stanford, regarding “telepresence” and robots being used in the workplace.  Siino brought us the news that the future is here, and robots will be coming to a workplace near you.  Fascinating issues arose, but my hands were occupied with a good New York roast beef sandwich and they escaped me.  I did think about the slight irony of labor and employment lawyers working through their lunch break...

Following lunch was "Social Media and the Global Workplace" moderated by Allan Dinkoff, with panelists Paul Callaghan (in from London), Carsten Domke (in from Germany), Brian M. Flock, Hanan B. Kolko, and Ginger McCall.  It was another interesting panel.  Flock surveyed the various state statutes that limit an employer's ability to take adverse actions against employees for lawful off-duty conduct, with the summary being that those statutes have largely not tackled social media use yet.  Kolko summarized cases where the NLRB has taken actions in response to employer limitations on social media use.  McCall summarized data privacy laws and their application.  Callaghan and Domke gave us the English and German perspective on the issues.  The group wrestled with a hypo involving a male employee who facebook friends a female coworker, discovers a topless picture of the coworker in her facebook pictures and thereupon emails the picture to other coworkers through his private email account, who in turn email it to other coworkers through the employer's email system.  The female employee is upset and wants the employer to do something about it...

Finally there was "Public Sector Employment: Emerging Issues and their Potential Private Sector Impact" moderated by William A. Herbert with panelists Steven M. Klein and Norma Meacham.  This thought provoking session included information about the use of "virtual" step 1 and step 2 grievance meetings, discussion of electronic posting, FOIA-style requests and the right of confidentiality where employees communicate with their union reps, and interesting First Amendment issues.
I'm looking forward to day two.

Technology: Personal Smartphones for Work Purposes

The Wall Street Journal has a good piece on the increased intermingling by employees of their personal smartphones for work purposes: So You Want to Use Your Iphone for Work? Uh-Oh.  I use my personal iphone for work a lot, whether it's placing calls, texting contacts, taking notes, or of course checking my email.  My main concern has been that people at the office will see me twiddling with it and assume I'm playing Angry Birds or something (I prefer Pac-Man anyway).  The WSJ article does not address my concerns, but it centers on security issues since non-Blackberry smart phones don't have top notch security, smart phones are easily lost or stolen, and employees might leave a company with all kinds of sensitive business documents on their personal phone.   I wonder what other pitfalls there are for commingling personal smart phones with work purposes.  If an employee gets into an accident while texting his boss from his personal phone on his otherwise personal time, is he covered under workers' comp? Is the employer liable for the accident?  Would it be discriminatory to only hire candidates who own fancy personal phones (that way the employer doesn't need to buy company Blackberries)?  Is an employee making all of his private phone conversations, emails, texts, web browsing (i.e. facebooking), Angry Birds usage, etc. topics for discovery in suits against his employer by using his personal phone for work purposes?


I'll be attending the ABA National Symposium on Technology in Labor and Employment Law tomorrow and Friday.  Hopefully I'll come away with some answers to these questions.

Edward G. Budd Manufacturing Co. v. NLRB (3d Cir. 1943)

I will be posting animations of historic labor and employment law cases as well as recent ones. If there is a historic or recent case that you think would make for a good animation send me an email at laborrelated@yahoo.com or post your suggestion as a comment.

This case, Edward G. Budd Manufacturing Co. v. NLRB (3d Cir. 1943), was an early test of the boundaries of the NLRA. A company dominated union was in place pursuant to procedures under the now defunct National Industrial Recovery Act. Weigand, an employee listed on the payroll as a rigger, was a union representative of this company dominated union. He was treated with extreme leniency by the employer. However, the employees moved to form a union of their own and the employer found out that Weigand was in support of the independent union. The leniency quickly went away. The Third Circuit had to decide whether the sudden change was unlawful:

The case of Walter Weigand is extraordinary. If ever a workman deserved summary discharge it was he. He was under the influence of liquor while on duty. He came to work when he chose and he left the plant and his shift as he pleased. In fact, a foreman on one occasion was agreeably surprised to find Weigand at work and commented upon it. Weigand amiably stated that he was enjoying it.*fn6 He brought a woman (apparently generally known as the "Duchess") to the rear of the plant yard and introduced some of the employees to her. He took another employee to visit her and when this man got too drunk to be able to go home, punched his time-card for him and put him on the table in the representatives' meeting room in the plant in order to sleep off his intoxication. Weigand's immediate superiors demanded again and again that he be discharged, but each time higher officials intervened on Weigand's behalf because as was naively stated he was "a representative." In return for not working at the job for which he was hired, the petitioner gave him full pay and on five separate occasions raised his wages. One of these raises was general; that is to say, Weigand profited by a general wage increase throughout the plant, but the other four raises were given Weigand at times when other employees in the plant did not receive wage increases.

The petitioner contends that Weigand was discharged because of cumulative grievances against him. But about the time of the discharge it was suspected by some of the representatives that Weigand had joined the complaining CIO union. One of the representatives taxed him with this fact and Weigand offered to bet a hundred dollars that it could not be proved. On July 22, 1941 Weigand did disclose his union membership to the vice-chairman (Rattigan) of the Association and to another representative (Mullen) and apparently tried to persuade them to support the union. Weigand asserts that the next day he with Rattigan and Mullen, were seen talking to CIO organizer Reichwein on a street corner. The following day, according to Weigand's testimony, Mullen came to Weigand at the plant and stated that Weigand, Rattigan and himself had been seen talking to Reichwein and that he, Mullen, had just had an interview with Personnel Director McIlvain and Plant Manager Mahan. According to Weigand, Mullen said to him, "Maybe you didn't get me in a jam." And, "We were seen down there." The following day Weigand was discharged.

As this court stated in National Labor Relations Board v. Condenser Corp., supra, 3 Cir., 128 F.2d at page 75, an employer may discharge an employee for a good reason, a poor reason or no reason at all so long as the provisions of the National Labor Relations Act are not violated. It is, of course, a violation to discharge an employee because he has engaged in activities on behalf of a union. Conversely an employer may retain an employee for a good reason, a bad reason or no reason at all and the reason is not a concern of the Board. But it is certainly too great a strain on our credulity to assert, as does the petitioner, that Weigand was discharged for an accumulation of offenses. We think that he was dischrged because his work on behalf of the CIO had become known to the plant manager. That ended his sinecure at the Budd plant. The Board found that he was discharged because of his activities on behalf of the union. The record shows that the Board's fiding was based on sufficient evidence.

The order of the Board will be enforced.

As always, my animated depiction can't precisely cover all of the details. The accents were necessary to distinguish who is speaking and the superhero outfits are worn because of certain limitations.