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.

Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11

Can an employer retaliate against an employee who makes an oral complaint about an FLSA violation or does that complaint have to be in writing in order to trigger antiretaliation provisions?

The Supreme Court held today that a complaint does not have to be in writing in order to trigger antiretaliation provisions. However, the Court did leave a question unanswered:

Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not tothe Government; and, in Saint-Gobain’s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts, which held to the contrary. 570 F. 3d, at 837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten’s petition for certiorari. Indeed, it did not mention the claim in this Court until it filed its brief on the merits. We do not normally consider a separate legal questionnot raised in the certiorari briefs. See this Court’s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here.  Resolution of the Government/private employer question is not a "‘"predicate to an intelligent resolution"’" of the oral/written question that we granted certiorari to decide. See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/writtenquestion separately—on its own.

So whether a complaint (written or oral) to an employer rather to a government agency triggers the antiretaliation provision is still undecided by the Supreme Court.

The animation above is to show the point of the case, but does not take much from it in the way of facts or dialogue.

For blog coverage see Rick Bales at Workplace Prof Blog,  Philip Miles at Lawffice space, and Michael Maslanka at Work Matters and Jon Hyman at Ohio Employer Blog.

Worldmark by Wyndham, 356 NLRB 104 (2011)

Here's a pca case with a little bit of fashion for you to boot.

Wyndham changed its "resort casual" dresscode for its sales staff and the change did not go over well. The new code meant that shirts had to be tucked in. Tommy Bahama shirts were particularly popular with the sales staff, especially with salesman Feathers who held the title "King of Tommy Bahama Shirts." Tommy Bahama shirts are not meant to be tucked in.  Salesman Foley (no relationship) returned from vacation to find out about the new policy. Protected concerted activity ensued.

The animation is based on the facts of the case, although certain changes were necessary for both artistic and technical reasons.  The voice over is my poor version of a Bill Lumbergh.  

For more on this case, check out Jeff Hirsh's post at Workplace Prof Blog and Michael Eastman's take at NLRB Insights.

I couldn't get my animated characters to wear Tommy Bahama style shirts, so here is my son in one. Clearly this shirt should not be tucked in.