LeadingAge NY Annual Conference May 24, 2016 John M. Bagyi, Esq., SPHR, SHRM-SCP 22 Corporate Woods Boulevard, Suite 501, Albany, NY 12211 Telephone: (518) 533-3229 [email protected]ADDRESSING EMPLOYMENT LAW CONCERNS ARISING FROM EMPLOYEE USE OF TECHNOLOGY
27
Embed
LeadingAge NYAnnual Conference Law -Bagyi.pdf · • Addresses personal use – on employer equipment and employer time ... or banding together for “mutual aid ... LinkedIn) •
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
LeadingAge NY Annual Conference
May 24, 2016
John M. Bagyi, Esq., SPHR, SHRM-SCP22 Corporate Woods Boulevard, Suite 501, Albany, NY 12211
Recognized by Human Resource Executive magazine as one of the Nation’s MostPowerful Employment Attorneys, John counsels and represents employers onlabor and employment issues helping them achieve and maintain legalcompliance, while improving employee engagement and workplace productivity.With years of experience advising employers in a broad range of industries, Johnprovides his clients practical, real world advice, mindful of the need to balance thelegal “ideal” with a client’s operational reality.
John focuses on: Preventive counseling, training and policy development with regard
to: sexual and other prohibited harassment; wage and hour compliance;social media; performance management, progressive discipline andterminations; recruiting, hiring and retention; reasonable accommodationsand other ADA and FMLA issues; drugs and alcohol; employeehandbooks; technology and privacy
General counseling concerning compliance with federal and stateemployment laws, including wage and hour and EEO compliance audits,and consultation on individual employment decisions
Workplace investigations relating to harassment and other EEOconcerns, ethics violations and other workplace misconduct
Business transitions, such as mergers, acquisitions and reductions inforce
Contracts/agreements including employment agreements, retentionagreements, executive contracts, alternative dispute resolution, restrictiveand other covenants, and severance plans and agreements
Administrative proceedings before the EEOC, Division of HumanRights, NLRB, and federal and state departments of labor
Listed In New York Super Lawyers
®, 2009 - present
The Best Lawyers in America®, 2007-present
Honors and Awards “Nation’s Most Powerful Employment Attorneys,” Human Resource
Executive®
2014, 2015 “Lawyer of the Year” Albany Litigation - Labor and Employment, The Best
Lawyers in America®
2015 “Lawyer of the Year” Albany Employment Law – Management, The Best
Lawyers in America®
2014 "Lawyer of the Year" Albany Labor Law - Management, The Best Lawyers
in America®
2014 “Friend of the Year,” Capital Region Human Resources Association, 2012 Excellence in Alumni Service Award, Albany Law School, 2005 40 Under Forty Honoree, Capital District Business Review, 2004 Executive Editor, Albany Law Review
Community Involvement Founder & Facilitator, CRHRA HR Leadership Program, 2006-present General Counsel, New York State Society for Human Resource
• A bartender was upset about that waitresses did nothave to share tips with him even though he helped servefood.
• Bartender complained about this policy to anotherbartender, who agreed it “sucked”. Neither bartenderraised this issue with management.
• The bartender then vented on his Facebook wall to arelative, complaining that he hadn’t had a raise in fiveyears and that he was doing the waitresses’ workwithout tips.
(cont’d)
10
Lawful or Unlawful?
• He also referred to the employer’s customersas “rednecks” and stated that he hoped they“choked on glass as they drove home drunk”.
• No coworkers commented on Facebook.
• The employer saw the Facebook post andterminated the bartender.
• Yes. Activity may lose its protection if it is“opprobrious” or “disloyal, reckless, or maliciouslyuntrue”
• Considerations:owhere the discussion occurred (i.e., in the workplace)
o subject matter of the discussion
o nature of the outburst
owhether the outburst was provoked by a ULP by theemployer
12
Does Protected, Concerted ActivityEver Lose Its Protection?
Lawful or Unlawful?
• Two employees discovered that they owed moreincome taxes than they had expected, allegedlydue to an employer withholding error.
• One of the employees discussed this at workwith other employees, and some employeescomplained. In response, the company planneda staff meeting to discuss these concerns.
• In the meantime, a former employee wrote on hisFacebook page, "Maybe someone should do the ownersof Triple Play a favor and buy it from them. They can'teven do the tax paperwork correctly!!! Now I OWEmoney...Wtf!!!!"
• A number of people respond to this post, including anemployee who called her boss "an a__hole."
• Another employee "liked" one of the other messages inthe thread.
• Employer learns of the posts and fires the employees fordisloyalty
14
Social Media and the NLRB
• The NLRB Office of the General Counsel hasproduced three reports summarizing casesbefore the NLRB related to:o The lawfulness of an employer’s social media policies
and rules
o The “protected” and/or “concerted” nature ofemployees’ social media posts (i.e., employeediscipline related to social media use)
• When it is posted by a nonsupervisoryemployee; and
• Constitutes protected, concerted activity
16
When Is Activity “Protected”?
• Protected activity includes a broad range ofconduct that relates to “wages, hours, workingconditions, and other terms and conditions ofemployment”, or banding together for “mutual aidor protection”
• Defines social media (provides examples andflexibility to cover new platforms)
• Identifies limits on useoOutside of work
oOn working time (defined)
oOn employer’s technological resources(cont’d)
20
Social Media Policy
• Requires employees to disclose relationship toemployer if employees are permitted to postabout employer’s products/services (referencingFTC Guidelines)
• Prohibits employees from providing references/recommendations of other current/formeremployees (e.g., LinkedIn)
• Clearly states that employees are expected tocomply with other policies (e.g., confidentiality,code of conduct) while using social media
• E-mail system is employer’s property, purchasedfor use in operating its business
• Employees have no statutory right to use theiremployer’s e-mail system for Section 7 purposes
• Lawful for employer to prohibit employees fromusing e-mail system for “non-job-relatedsolicitations”
32
Current State of the Law
• Employees who are granted access to theiremployer’s e-mail system for work purposes, alsohave a right to also use the e-mail system toengage in Section 7-protected communicationson nonworking timeo Employer may only rebut the presumption by
demonstrating that “special circumstances necessaryto maintain production or discipline” warrant restrictingthis right
oRuling does not require that employers grant e-mailaccess to covered employees who do not alreadyhave such access
• Employers can still monitor their email systems forlegitimate management reasons (e.g., ensuringproductivity and preventing email use for purposes ofharassment or other activities that could give rise toemployer liability)
oHowever, be mindful of surveillance concerns (i.e.unlawful surveillance of employees’ protected activity)
36
Takeaways
• Review policies & practices relating to e-mailusageo Eliminate general bans on “non-business use” or
“personal use”
o Address:
−Employer monitoring
−No right-of-privacy
−Limitations on personal use during working time?
o Be mindful of other potential NLRA issues(discriminatory enforcement, other restrictions violatingSection 8(a)(1), duty to bargain, etc.)
• This rule will likely address what employersmust do to capture and record time spent byemployees using mobile devices• i.e., is such time compensable?
• Another question: What constitutes de minimis timespent on a mobile device?
• The DOL is likely concerned with employersencroaching on an employee’s personal time offwithout compensation
40
Case Study
• Overachiever, an hourly employee, voluntarily checks herwork emails after hours from her personal device.
• Employer’s policy requires supervisor approval forovertime or work from home.
• Her exempt supervisor, Workaholic, frequently sendsOverachiever work-related emails in the evening.
• Overachiever reads these emails, and often responds toWorkaholic.
• Workaholic reads the responses but does not respond.
• Overachiever reports this time on her time sheet.
• Off-site/off-duty work is compensable if theemployer requires such or knows of the practiceand allows it to continue, i.e., actual orconstructive knowledge
• De minimis work performed remotely (generallyless than 10 minutes per workweek) may bedisregardedo The de minimis argument, as a practical matter, is
difficult to make successfully to the Department of Laborand should be examined closely
44
Takeaways
• Preliminary question:oDo nonexempt employees need employer-issued
mobile devices and/or the ability to remotely accessthe employer network/email?
• If nonexempt employees have employer-issuedmobile devices or can otherwise remotelyaccess employer’s email system/network, theemployer must address off-duty/off-site work
• Require nonexempt employees to record orotherwise notify employer of off-site/off-duty workperformed
• Consider:o requiring advanced approval and/or
o imposing limits on the amount of such work that may beperformed
• Whether authorized or not, pay employees for alloff-site/off-duty work performed
• Train supervisors and managers regarding off-site/off-duty work concerns (cont’d)
46
Takeaways
• Consider periodically auditing server accessreports to determine if nonexempt employeeswho are accessing the employer’s server areaccurately recording their time
• Counsel and then discipline non-exemptemployees (and supervisors) who violateemployer policies on off-site/off-duty worko Existence of a policy, standing alone, will not control
the analysis – the employer must enforce the policy