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© 2008 Morrison & Foerster LLP All Rights Reserved Attorney Advertising
The 21st Century Workplace: Electronic Communication Devices and the “New Media”
ACCA, San Diego ChapterGeneral Counsel Roundtable and All Day MCLE
Rick BergstromMorrison & Foerster LLPSan Diego, CA
Introduction
• The range of electronic devices at the workplace:• Cell phones, Camera phones,
Scanner phones, Text message phones
• PDA: Phone, E-mail and Internet• iPods• Laptops and Workstation computers• GPS and RFIDs• Flash drives and External hard
drives
Introduction
• The “new media” used at the workplace• E-mail• Instant Messaging• Texting• The Internet• Blogging, Vlogging,
Photologging§ Web 2.0 and Gen
Y/iGen/Millennials
Introduction
Employers v. Employees• Productivity• Increased communication,
collaboration, networking, and creativity
• Forum to complain
Introduction
• Legal Issues Related to Workplace Use of Electronic Communication Devices• Trade secret misappropriation• Harassment, discrimination, and retaliation• Free speech• Privacy • Defamation• Employer liability for employee torts• Wrongful termination claims• How to unmask the “anonymous employee”
Why are employer issues increasing?
• Devices small and easy to obtain:• 250 mg flash drive for $10.• iPod costs $100. § As of April 2007, Apple reports to have sold 100 million units.
• Purchase 250 GB hard drive for $80.• 85% of Americans own at least one cell phone.• As of January 2007, there were 1.1 billion Internet users
(20% of population).
Why are employer issues increasing?• Employees use devices as a rapid response
machine.• Less formal medium = less thought.
• There is an electronic record.• IM / Texting examples:§ “pls suck my . . . “§ “i cn’t wait to stick my finger up y’r . . .”§ “pls stop sending me these messages!”
Human Tracking Devices –“Geoslavery”
• GPS systems, even in handhelds
• RFIDs (schools using these)
• Employer Use: Location, productivity and security
• Employee Concerns: Privacy, potential stress and disability claims from the “24/7” approach???
Prohibition on “Chipping Employees”
• SB 362 Effective 1/1/08• Can’t require, coerce or compel another to undergo the
implanting of an “Identification Device” on or under the skin.§ Can’t Condition Employment, Promotion or other
Employment Benefits on the Individual’s Consent to Implantation of an “Identification Device.”
• SB 28, 29, 30, & 31 pending• Further restrict use of RFIDs on driver licenses, school ID
cards, and government documents.
Human Tracking Devices –“Geoslavery”
• Policy considerations:• State purpose of monitoring• Device used• Who will be doing monitoring• Who will be monitored• When and where• Discipline for incorrect location• Written consent?
Internet Use, E-mail, IM, and TM
• Hostile work environment
• Employers have a legal duty to take prompt corrective action to prevent harassment from all forms of communication, electronic or otherwise.
• The employer’s response can be a defense to harassment by a non-supervisor.
• No longer just “he said, she said” battle.
Categories Of Unlawful Harassment
• Race (color too)• National origin• Citizenship• Age• Religion • Gender• Sexual orientation
• Disability• Medical condition• Military status• Marital status• Pregnancy• Political
affiliations/activities
IM and TM (SMS)
• Teenage E-mail on decline.• Too slow• Favor less formal communication
• The “instant” nature can be regretted.• The same harassment and discrimination issues as
for E-mails.• A record may exist at employer, IPS, or via cut and
paste copy.• The same policies as E-mail should apply.
• Policy should include consent to obtain ISP records.• Consider length of retention.
Sexual Harassment In Cyberspace
• Blakey v. Continental Airlines, N.J. (N.J. 2000)• Employer posted schedules and assignments for pilots on
internet bulletin board.• In chat area, male pilots posted negative remarks about a
female pilot.• Female pilot sues airline for harassment.
• Result:• Employer has duty to stop employment related harassment.• Issues:
• Was bulletin board “related to the workplace?”• Did employer have notice?
• Blakely’s Lessons• Don’t need to troll cyberspace looking for harassment of
employees.• But, § If you are paying for or sponsoring the chat room, it likely
is connected to the workplace.§ Should have a policy governing use.§ If you are uncertain whether cyberspace activity is
connected to the workplace, resolve doubt in favor of pursuing corrective action.
o Risk of harassment claim is much greater than risk of employee privacy or free speech claim.
Sexual Harassment In Cyberspace
Do You Need To Monitor Internet Use?
• Doe v. XYC Corp. (N.J. 2005) • XYZ Corp put on notice that
employee accessing porn. • XYZ reviewed websites and found
child pornography involving stepdaughter.
• Did not report to authorities.• At time, employee sexually abusing
stepdaughter.• Employee arrested.• Stepdaughter sued XYZ Corp for
failure to report.
Do You Need To Monitor Internet Use?
• Was employer negligent for failing to monitor and report unlawful activity?• Employee downloaded over 1,000 images at work.• Employer had software to monitor activity.• Employer had a policy giving it a right to monitor
employee computer use and Internet activity.• Employer knew about conduct.
• Result: • Employer had a duty to the stepdaughter to inform the police
to extent it knew or should have known of activity.§ Part of a general employer duty to prevent harm to others,
such as committing a crime.
• A corresponding duty exists to take effective internal company action (either discipline or termination).
Do You Need To Monitor Internet Use?
• Lessons:• Enforce policy prohibiting unlawful Internet activity.• Employers cannot ignore Internet-based criminal activities
when known.• Employers must consider reporting the unlawful conduct to
the authorities.• Install “nannyware.”
Do You Need To Monitor Internet Use?
Web logs = Blogs
• A website where regular entries are made and posted in reverse chronological order.• Updated regularly• Article-based publishing
• Commentary on topics or personal journal entries• Diaries about people’s personal lives• Political views• “Gripe” sites – “mycompanysucks.com”
The “Blogosphere”
• First blog appeared in 1999.• Now over 50 million blogs in use.• Over 58% of internet users reported reading blogs.• 12% of internet users posted on blogs.
• Company-sponsored blogs• Both internal and public.• Increasingly used by business for marketing, branding, and
public relations.• Used as a forum for communication within the company.
Blogs And The Workplace
• Workplace Issues:• Employees making comments about their employers in
personal blogs.• Employees supplying company confidential information to
blog forums.• Inappropriate blogs• Blogs that create copyright/trademark infringement issues• Blogs that violate security laws
Blogging And Employee Discipline
• Employers terminating employees for blog content offenses: “Dooced.”
Wikipedia, the free encyclopedia
Employee Discipline: The Risks
• What should you consider before disciplining employees for blogging?• Whether similarly situated employees have been treated the
same to avoid discrimination claims.§ e.g. “The Queen of Sky Blog”
• Whether blog constitutes “whistleblowing.”• Whether the blogging qualifies for protection under
California Labor Code provisions.• Whether blog is protected “concerted” activity.
Employee Protections: Whistleblowers
• “Protected activity”• Opposing unlawful activity• Exercising a legal right
(including political activity and reporting to authorities under California Labor Code, Sarbanes-Oxley, Tamenyclaims)
• Is disclosing this information on a blog protected activity?
Employee Protections: Concerted Activity
• Complaints about terms and conditions of employment may be “concerted” activity.
• Allied Aviation (NLRB 1980): Complaining of airline safety issues is concerted activity.
• Timekeeping Systems (NLRB 1997): E-mail about vacation policy/other compensation issues is concerted activity.
• What is not “concerted” activity:• Defamatory statements• Disclosure of trade secrets or other confidential information• Complaints made in bad faith• Disparagement of company products• Obscene or harassing statements • General disagreement about business decisions (unless
about terms and conditions of employment)
Employee Protections: Concerted Activity
Blogging Policies
• Does your company need a Blogging Policy?• Yes, if you want to encourage,
discourage, prohibit or regulate employee blogging.
• For company-sponsored blogs: Code of conduct, communications policies, insider trading policies and non-disclosure agreements all need to apply to an employee’s company-related blog posts.
Blogging Policies
• The Essentials for Company blogs:• Notice that the views expressed are employee’s own.• Requirement to not disclose confidential information.• “Respectful” in communications.• Employer right to request that employee stop posting.• Notice that management can remove unlawful or improper
postings or shut the down blog.• Notice to employees that they can be disciplined for violating
policies.• Other company policies and agreements apply.
Minimizing Risk For Company Blogs
• Address blogging in employee training.
• Set up a monitoring procedure.
• Respond to improper or unlawful postings.
• Consistent policy enforcement
Cell Phones: “Driving While Talking”
• Examples to remember:• Cooley Godward attorney struck
teenager while talking with client.§ Cooley settled.§ Judgment against attorney for $2
million, felony conviction, license suspended.
• Smith Barney broker ran red light and hit motorcyclist while talking to client.§ Smith Barney paid $500,000
• Respondeat Superior/“course and scope” liability
• Further potential liability for California employers
• July 1, 2008: Mandatory “hands free”cell phone use while operating motor vehicles.
§ Negligence “per se” for violating statute. Cal. Evid. Code section 669(a).
Cell Phones: “Driving While Talking”
Employer Response
• Cell Phone and Texting Driving Policy• Prohibit use of cell phones while driving? • Require employees to pull over for calls?• In California, at least limit to “hands free”
• Employer required to provide?
• No TWD --“Crackberries”
• Discipline for violations• DMV check
Other Risks With Cell Phones
• Can take pictures, videos, scan, fax, and E-mail.
• Getting smaller all the time.• 41% of U.S. households now have a
camera phone (much higher in SD).• 600 million camera phones in use by
year end 2007.• 85% of phones will have a camera by 2009.
Special Risks With Camera Phones
• A perfect device for stealing confidential information.
• Similar issue for iPods and electronic media.• “Slurping”
• To be “trade secret,”reasonable efforts must be taken to protect the information.
Employer Response
• Consider banning camera phones:• Samsung and Chrysler do this.• Issue of enforcement
• Ban from areas where confidential information can be accessed.
• Policy limiting use of camera phones at work.