Employee use of mobile devices

Dewey & LeBoeuf LLPdl.com

EMPLOYEE USE OF MOBILE ELECTRONIC DEVICES:LEGAL THREATS FOR EMPLOYERS

September 13, 2011

Margaret A. Keane, Co-Chair, Employment Dispute Resolution [email protected]

Dewey & LeBoeuf LLP | 1

• Lack of clear precedent: courts and legislators lag behind while regulators blaze the trail

• Social networking: lines between work and life continue to blur

• New communication channels: instant messaging as corporate tooland texting is not just for teens

• Electronic discovery: the document that would not die

• Workplace privacy: does it exist?

• Anywhere, anytime access: challenges of mobile computing

• The 24/7 workplace and the FLSA

• Control is a remnant of days gone by

• Generational differences affect communication styles

Managing Change in the Workplace: Some of Today’s ChallengesManaging Change in the Workplace: Some of Today’s Challenges


● 85% of financial services professionals under 50 are using social media. Ledermark survey, April 2010

● 75% of employers are using some form of social media to promote their business. Proskauer International Labor and Employment Group Survey, July 2011

● 45% don’t have a social media policy

● 31% completely prohibit employees from visiting social networking sites while at work. Robert Half Technology survey, May 2011

(Source: AMA, 2005)

Social Media Policies 1.5Social Media Policies 1.5


● Facebook is approaching 700 million users

● Approximately 67 million users per day access Facebook through Android and iPhone apps.

● Linked in – 120 million plus members

● Don’t think your employees are out there? Think again. Type your company’s name into the search engine of any social networking site.

(Source: thenextweb.com/facebook/ 2011/094/23/the-number-growth-and-evolution-of-the-behemoth-that-is-facebook/)

Online Social NetworksOnline Social Networks


• By one estimate, 72% of Americans check their email on weekends and vacations and 42% check email while home sick. Source:www.kikabink.com/news/most-workers-addicted-to-email-2-out-of-3-u-s-and-u-k-workers-check-mail-outside-business-hours/ (citing Harris Interactive research)

• iPass Mobile Employee Definition: Employee using a mobile device who accesses networks (other than corporate LAN or WLAN) for work purposes

• Average mobile worker works 240 hours per year longer than work force in general

• 43% of mobile workers keep smart phone at arm’s reach when they sleep

• 96% of mobile workers under 45 have smart phones

• 35% of mobile workers check email first thing upon awakeningSource: The iPass Global Mobile Workforce Report, August 2011www.mobile-workforce-project.ipass.com/cpwp/wp-content/files_mf/ipass_mobileworkforcereport-q-3_2011.pdf

Are You at Work? Mobile Technology Blurs the Line Between Home and WorkAre You at Work? Mobile Technology Blurs the Line Between Home and Work


Yours, mine and ours: A new world of sharingYours, mine and ours: A new world of sharing

Do you use your tablet primarily as a personal or work device?


Yours, mine and ours: A new world of sharing (Cont’d)Yours, mine and ours: A new world of sharing (Cont’d)

How do you use your smartphone?

Source: The iPass Global Mobile Workforce Report, http://mobile-workforce-project.ipass.com/cpwp/wp-content/files_mf/ipass_mobileworkforcereport_q3_2011.pdf


Living Together: The Ongoing Employment Relationship

● Decide whether or not to monitor - virtually all employers retain the right to monitor and address personal use of the employer’s system

● Put your policies on personal use and privacy rights into clear and unequivocal language and communicate it to your employees (Ex. You have no expectation of privacy in connection …)

● If employees can access the employer’s system remotely, consider requiring employees to provide access to remote devices used to access system

● Develop policy on use of personal devices in the workplace● FOLLOW YOUR POLICY CONSISTENTLY● Revise policy as technology evolves● Don’t make decisions based on protected class status – try to keep

information away from decision makers● Document your searches and findings● Don’t make employment decisions turn on trivial matters


● The average professional spends 50 minutes a day sending e-mails after work(Source: Cohesive Knowledge Solutions, 2008)

● Companies need to manage risk by:

– Updating policies and handbooks related to use of personal devices

– Don’t give mobile devices to non-exempt employees

– Implement policies that restrict non-exempt workers use of company-issued devices

FAD Media, Inc.

I Owe You What?!Mobile Devices and Wage and Hour ObligationsI Owe You What?!Mobile Devices and Wage and Hour Obligations


● Dooced: Termination based on a blog posting; see www.dooce.com(blog of woman who was fired after writing about employer on blog)

● NLRB v. American Medical Response Company, Case No. 34-CA-12576 (Connecticut, 2011). Employee was terminated for criticizing her supervisor on Facebook in violation of company policy prohibiting employees from “making disparaging, discriminating or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” NLRB charged employer with violating Sections 7 and 8 of NLRA. Important case because it challenged both the firing decision AND the employer’s policies. Case recently settled.

Breaking Up is Hard to Do: From Dooce to the NLRBBreaking Up is Hard to Do: From Dooce to the NLRB


● Portions of the NLRA apply to All employees.

● Specifically, employers can’t punish employees for discussing working conditions or unionization.

● Agency has taken aggressive stance on terminations as discipline for critical posts on social media.

● NLRA gives employees the affirmative right to engage in connected action for mutual benefits and protection.

NLRB Position on Social Media Practices and Policies:My Workforce isn’t Unionized. Why Should I Care?NLRB Position on Social Media Practices and Policies:My Workforce isn’t Unionized. Why Should I Care?


● Report explains analysis of 14 cases involving employer’s social and general media policies submitted to NLRB’s Division of Advice.

● Four cases found protected activity where employees posting on Facebook were discussing terms and conditions of employment withfellow employees. Four other cases found activity was not protected.

● In five cases, Division of Advice found that some provisions of employers’ social media policies were unlawfully over-broad.

NLRA Acting General Counsel Releases Reporton Social Media Cases: August 18, 2011NLRA Acting General Counsel Releases Reporton Social Media Cases: August 18, 2011


Recordkeeping

Q1: Does determining whether a communication is subject to the recordkeeping requirements of SEA Rule 17a-4(b)(4) depend on whether an associated person uses a personal device or technology to make the communication?

A1: SEA Rule 17a-4(b)(4) requires a firm to retain records of communications thatrelate to its "business as such." Whether a particular communication is related to the business of the firm depends upon the facts and circumstances. This analysis does not depend upon the type of device or technology used to transmit the communication, nor does it depend upon whether it is a firm-issued or personal device of the individual; rather, the content of the communication is determinative. For instance, the requirement would apply if the electronic communication was received or sent by an associated person through a third-party's platform or system. A firm's policies and procedures must include training and education of its associated persons regarding the differences between business and non-business communications and the measures required to ensure that any business communication made by associated persons is retained, retrievable and supervised.

FINRA’s Latest Guidance on Dual Use Devices:Regulatory Notice 11:39, August 2011FINRA’s Latest Guidance on Dual Use Devices:Regulatory Notice 11:39, August 2011


Accessing Social Media Sites From Personal Devices

Q14: May associated persons use personal communication devices and other equipment, such as a smart phone or tablet computer, to access firm business applications and perform business activity if the firm employs technology that enables the firm to keep records and supervise the activity?

A14: Yes. Firms may permit their associated persons to use any personal communication device, whether it is owned by the associated person or the firm, for business communications. FINRA recognizes that the development of new technologies can facilitate the ability of associated persons to perform their responsibilities and, in the case of registered representatives, to serve their clients. Of course, the firm must be able to retain, retrieve and supervise business communications regardless of whether they are conducted from a device owned by the firm or by the associated person.

In order to ensure that the business communications are readily retrievable without necessitating the capture of personal communications made on the same device, firms should have the ability to separate business and personal communications, such as by requiring that the associated persons use a separately identifiable application on the device for their business communications. If possible, this application should provide a secure portal into the firm's own communication system, particularly if confidential customer information may be shared. If the firm has the ability to separate business and personal communications, and has adequate electronic communications policies and procedures regarding usage, then the firm is not required to supervise the personal emails made on these devices. Of course, firms also are free to treat al communications made through the personal communication device as business communications.

FINRA’s Latest GuidanceFINRA’s Latest Guidance


● Illegal to discriminate against employees or applicants because of genetic information

● Employers may not use genetic information in making employment decisions and may not request, require or purchase genetic information

● Any employer that possesses genetic information about an employee must maintain such information in separate files; and must treat it as a confidential medical record and may disclose it only under very limited circumstances

● Prohibition on requesting information defines “request” to include “conducting an internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information.” 29 C.F.R. §1635

● Safe harbor for inadvertent acquisition applies where employer “inadvertently learns genetic information from a social media platform where he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).” 29 C.F.R. §1634

Genetic Information Nondiscrimination Act of 2008 (GINA)Genetic Information Nondiscrimination Act of 2008 (GINA)


● Decide whether to permit/prohibit/limit or encourage blogging using company resources or time

● Direct employees to use disclaimers

• “This post reflects my personal views, not those of the company”

● Be careful about threatening disciplinary action for disparagingstatements; consider NLRA implications

● Have employees execute current confidentiality agreements and non-disclosure agreements

Guidelines for All DevicesGuidelines for All Devices


● Sensitive personal information is everywhere…

– Instant messages

– E-mails

– Text messages

– Online registrations

– Social networking

● All of these electronic records could be discoverable in litigation, and could be monitored by an employer

● Privacy concerns are closely related to document management and e-discovery

E-Discovery and PrivacyE-Discovery and Privacy

Dewey & LeBoeuf LLPdl.com

Margaret Keane is Co-Chair of the Employment Dispute Resolution Practice at Dewey & LeBoeuf, LLP. Ms. Keane represents employers in matters arising out of all aspects of the employment relationship. In addition, Ms. Keane has extensive expertise with internal investigations and counseling. She speaks regularly on privacy, discrimination, retaliation and other workplace legal issues.

SF 234162.v1

Employee use of mobile devices

Education

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