When the use of email in business became popular in the mid-1990s, the employment law implications seemed simple. Employers were primarily interested in knowing whether they could implement policies restricting employee email use to “business purposes” and whether they could lawfully monitor usage to ensure compliance with these policies. As business uses of technology have expanded over the past 25 years, these initial legal concerns have spun into a multitude of compliance issues that permeate every aspect of the employment relationship. All attorneys who represent businesses are wise to have at least a passing knowledge of these technology-based compliance traps. Although not an exhaustive discussion, the following should demonstrate the breadth of technology’s impact on labor and employment law.
You’ve just interviewed a great candidate, but before you draft the job offer letter, you decide to Google her name to see what sort of “web presence” she maintains. There you may find social media posts in which she discloses her age, religion, medical history, feelings toward unions, etc. – all of which you could not have asked about during the interview. Some social media sites give her the ability to determine whether you’ve viewed her web page. Now, if you should decide not to hire her for other legitimate reasons (e.g. a problematic criminal history report), she could claim that the decision was based on unlawful considerations that you identified during your web search. Your search was not unlawful per se, but it may add fuel to a discrimination claim. To prevent this conundrum, employers should have a protocol defining how background checks are conducted during the hiring process. These policies often prohibit hiring managers from casually searching the web regarding candidates.
Americans with Disabilities Act (ADA)
Technology can present ADA challenges for employers in virtually any industry. For example, a customer service representative claims that he needs to work from home due to an unusual sensitivity to scents in the workplace – or due to anxiety. Twenty-five years ago, it’s unlikely he could have performed the essential functions of his position at home. However, with today’s technology, it’s often just a question of whether the employer is willing to invest in an at-home workstation to accommodate him. Many factors affect whether this investment is required as a “reasonable accommodation” under the ADA (e.g. cost, size of employer, etc.) and the ultimate determination should be made only after researching the options and engaging in an interactive dialogue with the employee. Telecommuting is not feasible for all positions, but employers are well advised not to reject technology-based requests for accommodations without careful analysis and some interactive dialogue with the employee.
National Labor Relations Act (NLRA)
Over the past eight years, the intersection of technology and the NLRA has routinely made headlines. The National Labor Relations Board has issued a series of opinions limiting the ability of employers (unionized and non-union) to discipline employees for social media posts that are critical of the employer. In a nutshell, the NLRA protects the rights of employees to engage in “protected concerted activities” – so, if two or more employees engage in a public Facebook discussion about how horrible their employer is, their activity is often protected by law. Employers are well advised to have written policies governing social media and internet postings that not only observe NLRA concerns but also address such issues as confidentiality, attribution and professionalism. However, social media is only one example of how technology can create issues under the NLRA. Another prominent issue is the extent to which an employer may prohibit employees from using company-provided email to engage in union activities (e.g. to organize a union meeting). Yet another common issue is whether a unionized employer has the right to unilaterally implement technology that monitors employee behavior and to render disciplinary action based on the data it generates. All of these issues deserve careful consideration under the NLRA before moving forward.
Fair Labor Standards Act (FLSA)
Failure to understand the FLSA implications of business technology can quickly generate substantial wage liabilities for employers. Smartphones and other personal electronic devices are the primary risks here. By way of example, an hourly technical support employee is expected to respond to questions from customers or supervisors within an hour of when they were raised. If an employer knows (or should know) that the hourly employee is responding to these questions outside of normal working hours via her smartphone, the employee must be paid for her additional work time, perhaps at an overtime rate. Notably, the U.S. Department of Labor has developed a smartphone app that enables employees to track their off-the-clock work for the very purpose of holding employers accountable for these extra work hours. Class-action wage and hour litigation is a burgeoning industry for plaintiff’s attorneys, and wage claims for off-the-clock work is one of the leading compliance problems underlying these lawsuits. The cautious employer will have a policy in place that strictly limits off-the-clock work and requires employees to promptly report any time they happen to work outside of their normal working hours.
Workers’ Compensation (WC)
Closely related to FLSA concerns is the issue of workers’ compensation liability. If an employee engages in off-the-clock work by responding to customer calls and emails after hours, chances are that an injury he sustains at that time would be covered by workers’ compensation. The classic example here is the sales employee who takes a call from a prospective customer while driving. In many jurisdictions, if the sales employee wrecks his car while engaged in a work-related call, his injuries will be considered “work-related” and compensable under WC laws. Since the employee was acting in furtherance of the employee’s business at the time, his employer may also be liable for any injuries or damages sustained by third parties. Many employers have responded to these liability risks by prohibiting the use of cell phones while driving – or perhaps requiring the use of hands-free technology for such calls.
In most jurisdictions, employers are free to monitor employee use of the company’s electronic resources (e.g. email, internet) to ensure compliance with policies requiring appropriate usage. A good usage policy will notify employees in clear terms that their usage may be monitored and that they should have no expectation of privacy. A notification of this nature should reduce the likelihood of “invasion of privacy” claims. However, what if in the course of monitoring business email, the IT department comes upon highly sensitive personal information relating to an employee – perhaps an email exchange indicating that the employee was recently diagnosed as HIV-positive. Courts in several jurisdictions have held that employers must immediately stop reading once they realize they’ve found personal email communications on company servers. Reviewing the content of some personal communications, after it’s already been determined to be of a personal nature, could support an invasion of privacy claim in some jurisdictions.
One common thread in the risk scenarios outlined above is that, in each instance, there will likely be a traceable electronic history that may support the employer’s defense against liability – or blow it out of the water altogether. With the advent of electronic discovery, many unwitting managers have learned it’s hard to keep a secret in the electronic age. A manager accused of sex discrimination will have a difficult time disowning the offensive jokes and comments that he’s made about female co-workers to his male friends via email. The risks presented by electronic discovery compel employers to develop and enforce well-crafted technology policies that anticipate all of the risks discussed above – and to train (and periodically remind) employees regarding appropriate usage. Any good training program will highlight the worst-case scenarios that electronic discovery can easily make a reality.
The rise of electronic technology in the workplace has generated a wide range of compliance risks that employers could not have imagined 25 years ago. As any labor and employment lawyer can tell you, the issues outlined above just scratch the surface. Technology presents new employment law issues nearly every month and this is likely to continue for the foreseeable future. Yet for each technology-based compliance challenge, employers can limit liability by proactively gaining an understanding of the compliance risks presented by new technology, developing (or updating) a well-reasoned policy that is tailored to their operations, training (and retraining) employees, and vigilantly enforcing their policies. This disciplined approach will allow employers to capitalize on their investment in IT, while avoiding the legal landmines that could cause much more than a “frownie-face emoji” for your clients.
Eric N. Athey is co-chair of the Labor and Employment Group at McNees Wallace & Nurick, LLC. He provides counseling and representation to employers on a wide range of labor and employment matters, including compliance assistance with laws such as the Affordable Care Act, FMLA, ADA, OSHA, and wage and hour laws. He can be reached at email@example.com.