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ACC Docket 78 April 2009

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Reprinted with permission of the authors and the Association of Corporate Counsel as it originally appeared: Gregory R. Watchman and Daniel P. Westman, Cutting Edge, On Slippery Slopes, ACC April 2009: 80-90. Copyright ©2009, the Association of Corporate Counsel. All rights reserved. If you are interested in joining ACC, please go to www.acc.com, call 202.293.4103 x360, or email [email protected].


T he communications technology revolution of the past quarter-century has fundamentally altered the way people work, mostly

for the better. Wireless technologies enabled by the internet have unteth-ered employees from their desks, and allow workers to be productive while traveling, at home, or otherwise mobile. But with vast improvements in the ease of communication comes a host of increased risks, such as the risk of loss or misuse of the business information workers convey to each other. The newest generation of workers — dubbed the “Millennial” generation — regularly uses wireless technologies and the internet in their daily lives to an extent never seen before. Millennials, who are the fastest-growing segment of the workforce, are bringing their devices and communication styles with them into the corporate workplace. These developments are in-creasing a variety of corporate risks, including unprecedented challenges to data security, and suggests a number of risk mitigation strategies.

EdgE, Cutt ing

Sl

opE?

Or SlipperyBy Gregory R. Watchman

and Daniel P. Westman

Wireless Work Styles:



Some Observations About the Digital Workplace

Millennials are entering an increasingly computerized, technology-driven workplace. The following allegations contained in a criminal in-dictment unsealed in Chicago on April 2, 2008, illustrate the danger that this digital workplace poses to data security:

Hanjuan Jin, 37 years of age, and a natural-ized US citizen born in China, was charged in an indictment returned by a grand jury with theft of trade secrets valued at more than $600 million. On February 28, 2007, Jin was caught by US Customs and Border Protection agents at O’Hare International Airport about to board a flight using a one-way ticket to Beijing. In her possession were a laptop computer, a thumb drive, four ex-ternal hard drives, 29 recordable compact discs, a videotape and hundreds of techni-cal documents labeled “[Company A] Con-fidential Proprietary.” These materials were copied and downloaded from Company A’s computer network on February 26 and 27, 2007. Jin had returned to work on February 23 following a one-year medical leave of ab-sence. Jin submitted her resignation on Feb-ruary 27, 2007.1

First, this case demonstrates that we live in a global, information-based economy. People increasingly relocate from state to state, or coun-try to country. Most companies store their most valuable secret data on computers, and give access rights to such data to a wide variety of employees. Valuable secret data can be copied within hours or minutes, and very quickly can leave a state or country in the possession of a former employee. Or worse, valuable secret data can be emailed around the world instantaneously.

Second, consumers can now afford to purchase powerful technology that was unthinkable as little as a decade ago. Jin could have purchased a 250 gigabyte hard drive for about $100. Thumb drives and record-able disks are inexpensive. Even laptops, iPods® and iP-hones® are affordable consumer goods. Many employees are bringing their own increasingly powerful personal technology into the workplace, and can use it to take company secrets.

Third, companies must have effective data security programs to prevent people like Jin from succeeding in their efforts to misappropriate company information. Only 72 hours elapsed between the time Jin started copy-ing files and when she was ready to board an airplane

at O’Hare. In today’s global economy, every company should have an effective data security program to discover and prevent activities such as Jin’s alleged scheme.

Who Are the Millennials?The Millennials are now entering the digital

workplace in significant numbers. Generational literature defines Millennials as people born after 1980. They grew up with the internet, with almost unlimited bandwidth and have become accustomed to using technology that is increasingly powerful and sophisticated. Generational literature observes that, due to increased longevity and the need to work past traditional “retirement age,” Millennials are joined by three generations in the workplace today: the Matures/World War II; Baby Boom-ers; and Generation X.2

The “Matures/World War II” generation was born before 1945, and the defining events in their lives were the Great Depression, the rise of labor unions and World War II. The new technology in their formative years included radar and the atomic bomb. According to the literature,3 the Matures are an example of a “civic” generation who generally place a high value on cooperative social discipline. They are generally rationalists, friendly, and optimistic. They generally respect authority, are loyal to their country and institutions and believe in

sacrifices for the greater good. Standing out from the group is not a priority.

The Baby Boom generation (Boomers) was born be-tween 1945 and 1964. The defining events in their lives include the Cold War, the arms race, the Vietnam War and the Civil Rights Movement. The cutting-edge technol-ogy of their youth was television. The literature states that Boomers are an example of an “idealistic” generation with an optimistic perspective on life. Boomers tend to have a love/hate relationship with authority. They are driven, be-lieve in leadership by consensus and want material things that display their success.

Generation X (Gen X) is comprised of people born between 1965 and 1979. The defining events in their lives include Watergate, AIDS, being raised as latchkey kids and in daycare. New technologies included increasingly sophisti-cated media such as cable television and MTV. Gen X is an example of a “reactive” generation that grew up with idealis-tic Boomers as parents. According to the literature, they tend to be pragmatic, unimpressed with authority and believe in leadership by competence rather than mere seniority.

GreGory r. Watchman is associ-

ate general counsel for employment law at Freddie mac in tyson’s corner, Va. he received

his law degree from cornell Law School and is a graduate of Williams college.

Presently, Watchman serves as chair of the

acc’s employment and Labor Law committee, and can be contacted

at [email protected].

DanieL P. WeStman is managing partner of the northern Virginia office of morrison & Foerster LLP, where

he advises about and litigates trade secret,

data security, and electronic discovery

issues. he is co-chair of the firm’s national employment & Labor

Group, and can be contacted at

[email protected].



Generation Y, or the Millennials, is comprised of per-sons born after 1980. The defining events in their lives in-clude the ubiquity of technology and the internet, corporate scandals including Enron and Worldcom, and the tragic events of Columbine and September 11, 2001. The genera-tional literature suggests that they are “realistic idealists,” are ambitious, believe in leadership by achievement, want to be connected 24/7, and lead busy work and personal lives which cause them to seek flexible work schedules.

The generational breakdown in the US workforce today is as follows:

Over time, the percentages of Matures and Boomers in the workforce will decrease, and the percentage of Millen-nials will increase. Because of simple demographics, Mil-lennials are the fastest-growing segment of the workforce.

The Digital World of the MillennialsThe following observations must be characterized as

preliminary, and will be proved or disproved over time. However, businesses are accustomed to mitigating future risks by making educated guesses about the future based on limited experience. The following observations are of-fered in the spirit of mitigating future risks based on the limited experience with Millennials to date.

Communities on the InternetThe internet allows worldwide, instantaneous communi-

cation amongst people with shared interests. The Millen-nials have grown up with the concept that the internet is a powerful tool for creating communities. For example, Carepages4 is a website that enables individuals to create a webpage to update viewers on the health of medical pa-tients. Families can communicate around the globe about the recovery or failing health of loved ones. Similarly, Facebook is a social networking website that “gives people the power to share and makes the world more open and connected.”5 Millennials use Facebook to update friends on their activities, share photos or videos, and organize parties or social gatherings. Millennials grew up checking their homework assignments on the internet using Black-

board.com.6 Millennials use Wikipedia7 as a resource for academic research, even though they know that Wikipedia is created by ordinary citizens just like themselves. They have observed the growth of the “Open Source” phenom-enon which resulted in volunteers around the world creat-ing the Linux computer operating system for anyone to use without charge, in reaction against fee-based products such as Microsoft’s Windows.® 8 For Millennials, the internet is a means of creating a sense of connection, community and accomplishment — not just a technology.

Technology, including the internet, can be used to share information amongst communities for immoral or illegal purposes. The boundaries between legal and illegal use of the internet have become blurred in the modern world. For example, the website craigslist.org “provides local clas-sifieds and forums for jobs, housing, for sale, personals, services, local community, and events.”9 On November 6, 2008, Craigslist and the attorneys general of 40 states announced an agreement to take steps to prevent Craiglist from being abused for criminal purposes including human trafficking, child abuse and solicitation of prostitution.10 Yet, Millennials have seen the US Supreme Court rule that some forms of pornography can be a protected form of speech under the First Amendment.11 Pornography and gambling are two of the most lucrative forms of elec-tronic commerce. The connection between risqué internet behavior and commercial success may not be lost on the Millennials. As a result, the lines between acceptable and unacceptable internet “communities,” and what online be-havior is appropriate or inappropriate, may be increasingly difficult to draw.

Erosion of Ownership of Intellectual Property ConceptsMillennials also have witnessed the concepts of intel-

lectual property ownership and plagiarism become hazy in the internet age. Google and others wish to publish the col-lections of leading universities’ libraries on the internet.12 The authors of this literature contend that doing so would violate their copyrights and would undermine incentives for future scholarship.13 Millennials shared music files using peer-to-peer file-sharing technologies until the US Supreme Court held the practice to be unlawful.14

Plagiarism no longer involves finding a book and painstakingly copying words from it. Today, a Google search can locate partial or complete texts, and with a few clicks of a mouse, this text can be placed in a term paper. The use of software to detect plagiarism is on the rise, as evidenced by the business of Turnitin.15 Two high school students recently filed suit claiming that use of Turnitin’s anti-plagiarism software violated their copyrights, among other things, by making it impossible for them to sell their term papers on the internet.16 The plagiarism example

5%

45%

40%

10%

Matures/World War II

Boomers

Gen X

Millennials



suggests that employers would be wise to train a genera-tion that came of age with the freedom of the internet to recognize the protectable intellectual property rights of third parties in material posted on the internet.

Blurring of Boundaries Between Personal Time and Working Hours

Millennials came of age with instant messaging and the slang (e.g., CUL8R) that text-messaging has spawned. With the prevalence of email and instant messaging, no-tions of what constitutes proper etiquette in all forms of communication have become unclear. Such communica-tion technologies also have helped to blur the concepts of “working hours” and “personal time.” Millennials and their parents work from home at night and on the weekend, fa-cilitated by Blackberries® and remote network connections. Likewise, surfing the internet during working hours using the company’s computer network can be rationalized as a “21st century water cooler break.”

Can Information on the Internet Be “Private?”Generally, Boomers believe that posting information

on the internet makes the information public. However, Millennials are avid social networkers using tools such as Facebook and MySpace. Those tools allow account-holders to give other persons different levels of access to portions of their pages. For example, Facebook has a “privacy” feature that gives account-holders the option of limiting access to their uploaded photographs to only selected “friends.”17 This may create an expec-tation that the account-holders have some level of privacy in information posted on the internet. Moreover, the Facebook terms of use prohibit the use of Facebook for commercial purposes. Millennials may believe that employers should not use Face-book for the allegedly commercial purposes of checking the background of applicants for employment. Older generations who manage the Millennials likely do not share the expectation that any information posted on the internet remains private.

The Consumerization of Sophisticated TechnologyMillennials live in a time when consumers can purchase

relatively inexpensive, powerful technology that previously only large institutions could have purchased. For example, today anyone can purchase a portable hard drive with 250 gi-gabytes of storage for about $100. A decade ago, the concept that an individual might purchase 250 gigabytes of storage was unthinkable. Millennials have witnessed Apple, Inc.’s

highly successful evolution from a maker of computers to a maker of consumer devices such as iPods and iPhones, and a seller of music through iTunes.® Millennials are attached to their iPods or iPhones because those devices are as much a fashion or lifestyle statement as they are electronic devices.

Millennials are attached to their technology in ways that older generations may find difficult to fathom. As discussed below, most teenagers admit to driving automo-biles while talking on cell phones, and while sending text messages (known as “Driving While Talking/Texting” or “DWT”). A growing number of state legislatures are enacting laws forbidding teenagers from using cell phones or sending text messages while driving. The Millennials’ desire to be connected 24/7 apparently outweighs the life-threatening risks of DWT.

Emerging Legal Issues Arising from Millennials’ Use of Technology

Organizations need to understand what technology employees are using to conduct the organization’s business within and outside the workplace, and on and off the orga-nization’s computer networks. Very few organizations fully understand how employees — particularly new employees including Millennials — use their personally-owned tech-nology to perform work off-network or how these em-ployees use the internet in general. To minimize emerging exposures, it is imperative that organizations understand how Millennials are using personal and company-issued technology, both on-network and off-network.

Organizations also must recognize the different catego-ries of valuable information an institution has in electronic form. Most employers have at least three kinds of valuable confidential information:

their own confidential information and trade secrets; o

confidential information and trade secrets received o

from third parties such as customers, joint venture partners, and vendors; and personally identifiable information (e.g., social secu- o

rity numbers, names, addresses, telephone numbers banking, and health information) received from employees and third parties.

To minimize emerging exposures, it is imperative that organizations understand how Millennials are using personal and company-issued technology, both on-network and off-network.



The need to protect so much valuable electronically stored information conflicts with the desire of Millennials to use their preferred technologies. While the authors are cautious about generalizations, several recent studies have suggested that on average Millennials may be much more willing than other generations to engage in the following uses of technology in the workplace:

Using whatever application or device they want, regard-•less of corporate IT policy;Downloading software at work for personal use;•Regularly accessing social networking site such as Face-•book or MySpace;Regularly accessing webmail accounts;•Watching streaming video such as YouTube; and•Storing corporate data on personal devices including •personal computers, USB drives and smart phones.18

What Are Reasonable Measures to Protect Secrecy of Trade Secrets?

In order to maintain legal protection for trade secrets, an employer must take reasonable measures to protect the secrecy of the data claimed to be a trade secret.19 These measures may require enhanced protections given employ-ees’ increased use of personal devices such as home and laptop computers, USB drives, and smart phones. As the quantity of devices that employers allow their employees to use increases, courts may scrutinize what measures employers take to ensure that employees’ use of such de-vices does not jeopardize the secrecy of trade secrets. For example, if an employer allows its employees to use their personal devices for work purposes, then courts may ask the following questions to determine whether reasonable protective measures were taken:

whether the employer monitors employees’ usage of •personal devices;whether employees were required to obtain permission •to use personal devices;whether employees were required to encrypt information;•whether employees were required to report the loss of •personal devices containing company information; andwhether employees were required to ensure that their •personal computers were sanitized of viruses or stealth programs designed to capture and transmit information to other computers.

The Tension Between Technology Use and PrivacyIf employers choose to allow Millennials to use tech-

nology in relatively unlimited ways, then there may be a higher burden upon employers to monitor and audit em-ployee usage of technology. For example, global positioning system (GPS) and radio-frequency identification (RFID) technology allows for placement of tracking devices in

company-issued items such as cars, cell phones, magnetic access cards, laptops and so forth. GPS and RFID technol-ogy might allow an employer to determine when an em-ployee is gaining access to a portion of the premises where the employee has no legitimate business; when an employee is visiting a competitor’s premises; or when an employee like Jin is at an airport about to leave the country with a suitcase full of trade secrets valued at $600 million.

However, monitoring Millennials in these ways may conflict with their desire for work/life balance and expec-tations of privacy arising from social networking websites such as Facebook or MySpace, and other internet services. Employers must educate Millennials about their organiza-tions’ needs for secrecy, which can be a challenging task that may require creative approaches.

Ediscovery: Computer Forensics, Legal Costs and Privacy Concerns

The Jin indictment illustrates the impact of ediscovery on modern civil litigation. Assuming that Jin’s former em-ployer pursues civil litigation against Jin, it will be required to preserve the electronic evidence of Jin’s activities. First, the employer most likely will retain a computer forensics firm to create exact forensic images of the computer and many devices found in Jin’s possession so that it can deter-mine what Jin took, and how Jin accessed and extracted the information. The employer will need the forensic imag-es because the original computer and devices will need to be introduced into evidence. Also, reviewing the original computer and devices may erase data on them or otherwise give rise to an argument against admission of the originals for failure to preserve them. Obviously, computer forensics experts add a significant element of litigation cost.

Second, the employer will need to have someone review the forensic images to locate evidence. The review might be performed by the employer’s personnel, which would pull them away from their normal duties, or by expensive, outside computer forensics experts or lawyers.

The increased cost of litigation in the 21st century work-place creates tension between employers’ need to keep ediscovery costs down and Millennials’ desire for 24/7 connectivity. At minimum, employees should be educated

Employers must educate Millennials about their organizations’ needs for secrecy, which can be a challenging task that may re-quire creative approaches.



about the fact that their personal computers, devices, and email accounts may become important evidence and may need to be preserved and reviewed by computer forensics experts and/or lawyers. Merely educating Millennials about the realities of ediscovery may reduce their insistence on usage of personal technology.

For example, Millennials may bring some of their personal technology into the workplace, such as a flash stick, USB drive, or iPhone. They may use those personal devices to take work from the office to home, and vice versa. While at home, they may use a personally owned computer for work purposes. If litigation arises, employ-ees will receive instructions to preserve any electronically stored information that may be related to the litigation. Millennials may have materials on their flash stick and/or home computer relating to the subject of the litigation. If so, lawyers for the organization will want to review the employees’ flash sticks and home computers for any infor-mation related to the lawsuit, and may demand that the

employees turn over their personal devices so that forensic images can be preserved.

With the blurred boundaries between Millennials’ per-sonal and work lives, including using personal technology for work purposes, it is likely that many Millennials would be uncomfortable letting their company create a forensic image of their personal computers or devices. Training Millennials about these litigation realities may result in less usage of personal technology for work and thereby reduce ediscovery costs.

Emerging Employer Liability for Employee Technology Usage

The following developments illustrate emerging liabili-ties that may be expected to increase as mobile Millennials use their wireless personal or company-issued technology, both within and outside the workplace, and both while us-ing companies’ computer networks and while off-network.

Driving While Talking/Texting (DWT)The practice of driving while using a communications

device is often referred to as “driving while talking,” or “driving while texting.” DWT is a common practice for Millennials. In a recent Disney Mobile/Harris Interactive study, 44 percent of teenagers in the United States said they use text messaging as their primary form of commu-nication. In a recent Zogby poll, 66 percent of the people surveyed between the ages of 18 and 24 admitted to texting while driving. Another poll conducted by the American Automobile Association indicated that 46 percent of 16-and 17-year old drivers send text messages using their cell phones while driving.

The increased numbers of Millennials driving cars to and from work, and using their technologies for work pur-poses while driving, may result in increased claims against companies arising from DWT. There have already been examples of employers being sued for injuries to third per-sons caused by employees engaged in DWT who allegedly were doing work while driving. The investment firm Smith Barney was sued after one of its brokers ran a red light and hit a motorcyclist while he was talking on his cell phone. The broker was using the cell phone to call clients, and the injured motorcyclist’s lawyers claimed employer pressure to contact clients caused this reckless driving. Smith Barney settled the suit for $500,000.

The increased frequency of DWT in the Millennial generation has caused several state and local authorities to regulate DWT. For example, California, the District of Co-lumbia, New Jersey, New York and Washington State have “hands free” laws. New Jersey, Washington State and the City of Phoenix specifically prohibit texting while driving. Several states also prohibit minors from using communica-

Checklist for Training Millennials About Corporate Expectations

Intellectual property issues:•Who owns inventions and ideas derived from the em- o

ployer’s business, or developed using the employer’s time or materials;Trade secrets, and reasonable measures to protect o

their secrecy;Patentability, and the duty to disclose patentable o

ideas to the employer;Copyright and trademark rights of third parties. o

Data security, employer and customer expectations •regarding the same.Employer expectations regarding computer usage, and •policies regarding employer’s ability to monitor computer usage that may be contrary to the privacy expectations.Employer expectations regarding discretion when pub-•licly commenting on company business.Potential corporate liability for driving while talking/•texting.Electronic discovery issues arising in litigation.•Personally identifiable information present in the work-•place, and the need to protect it.Issues arising from posts on blogs:•

Discrimination, harassment, and retaliation; o

Copyright or trademark infringement; o

Defamation; or o

Insider trading based on “tipping” third parties about o

publicly traded companies.



tion devices while driving including California (under 18), Illinois (under 19), Nebraska (under 18), Oregon (under 18) and Virginia (under 18).

How far should employers go in setting boundaries on DWT? One response is to adopt policies prohibiting employees from using their cell phones or other communi-cations devices for company business while driving. Such policies would conform to the legislative judgments of several states.

Cyberspace Harassment and DiscriminationElectronic communications such as email, instant mes-

saging and other activities in cyberspace can give rise to workplace harassment claims and liability for employers. The Millennials’ constant use of social networking tools including Facebook and MySpace suggests that cyberspace harassment claims may increase if Millennials are not trained to understand that interactions with coworkers over the internet, and outside the workplace, can still give rise to workplace problems.

Blakey v. Continental Airlines, 164 N.J. 38, 751 A.2d 538 (2000) is the first case that dealt with the issue of whether an employer is responsible for preventing sexual harassment in cyberspace. Tammy Blakey sued Continen-tal Airlines and several of its male pilots for defamation, business libel, intentional infliction of emotional distress and sexual harassment based upon a hostile workplace environment. Blakey had become the airline’s first female captain to fly an Airbus aircraft seating 250 passengers. She contended that the airline’s pilots had posted defama-tory electronic messages on an electronic bulletin board called the “Crew Members Forum.”

Continental Airlines required that pilots and crewmem-

ber personnel access the electronic service CompuServe (at Continental’s expense) to learn their flight schedules and assignments. Continental did not require pilots and crew-members to access the Crew Members Forum, an elec-tronic bulletin board intended for the exchange of ideas and information. Continental employees accessed the Crew Members Forum at their own expense. Blakey claimed that the pilots’ offensive postings on the Crew Members Forum

constituted sexual harassment and discrimination, and she filed lawsuits in both federal and state court.

The Supreme Court of New Jersey ruled that sexual harassment and other forms of workplace discrimination can give rise to liability when it occurs in cyberspace, just as when it occurs in a physical space that a company controls. While holding that the airline did not have a strict obligation to monitor the bulletin board, the court remanded the case to determine whether the pilots’ use of the bulletin board for the benefit of Continental Airlines established enough of a workplace connection to warrant imposing liability. Recognizing that an electronic bulletin board may not have a physical location within a terminal or an aircraft, the court ruled that it nevertheless may be so closely related to a workplace environment, and so beneficial to the functioning of the airline, that the Crew Members Forum should be regarded as part of the work-place in determining whether harassment occurred.

BlogsBusinesses are increasingly adapting to the concept of

communities on the internet by using web logs (blogs) for marketing, branding and public relations. Blogs are also being used as a way to communicate within a company. Blogging can be particularly attractive to Millennials, who are accustomed to frequently posting their latest activities on Facebook and MySpace. The growing legal literature suggests that employers increasingly are grappling with the issue of taking action against employees for content on their personal blogs.20 A blog is a relatively simple way for dis-gruntled employees to air complaints about their employers. Any employee can start a blog to tell the world what the employee thinks of his or her employer. However, before

disciplining employees for content posted on blogs, several legal issues should be considered.

Potential DiscriminationEmployers may be subject to liability for

discrimination when regulating employee blogs and blogging activity. A 2005 federal case dem-onstrates the importance of consistency when regulating employee conduct.21 Ellen Simonetti, a Delta Airlines flight attendant, called herself the “Queen of the Sky” on her blog and posted pho-

tographs of herself in uniform. When she was terminated, Simonetti filed a discrimination claim with the Equal Employment Opportunity Commission, alleging that Delta allowed male employees to engage in similar blogging ac-tivity and thus had singled her out because of her gender. The Simonetti case has yet to be resolved, but the message is clear: The employer’s response to employee blogging can expose the employer to discrimination liability.

Electronic communications such as email, instant messaging and other activities in cyberspace can give rise to workplace harassment claims and liability for employers.



National Labor Relations ActThe Millennials’ penchant for communities on the inter-

net may portend greater communications over the internet about working conditions, which communications may be protected by the National Labor Relations Act (NLRA). The NLRA provides protections to non-union employees, for what Section 7 of this law refers to as “protected” or “con-certed” activity.22 “Concerted activity” need not be formal union organizing activities. Rather, Section 7 protects em-ployees who communicate with each other about terms and conditions of employment. No union needs to be involved, and the activities of a single employee may be protected.

Under the NLRA, even employee conduct disparaging management officials or the employer’s business may be protected “concerted” activity. The protection applies if the conduct relates to employee interests or working conditions and is not egregious in nature. For example, in Allied Avia-tion Service Co. of New Jersey, 248 N.L.R.B. 229 (1980), enf’d, 636 F.2d 1210 (3rd Cir. 1980), two letters sent out by employees to airline customers describing significant airline safety issues, while raising “sensitive” and “delicate” issues, were not considered to rise “to the level of public disparage-ment necessary to deprive otherwise protected activities of the protections” of the NLRA. Accordingly, employees who

For More Background About Generational Differences…

About Generational Theory:William Strauss and Neil Howe, • Generations: A History of America’s Future, 1584-2069. New York: Quill (1991).William Strauss and Neil Howe, • The Fourth Turning: An American Prophecy. New York: Broadway Books (1997).

About Millennials Specifically:Neil Howe, William Strauss & R.J. Matson, • Millennials Rising: The Next Great Generation. New York: Random House (2000).William Strauss, Neil Howe & Pete Markiewicz,• Millennials and the Pop Culture. Great Falls, VA: LifeCourse Associates (2006).Neil Howe and William Strauss, “The Next 20 Years: •How Customers and Workforce Attitudes Will Evolve,” Harvard Business Review, July-August 2007, available at http://harvardbusinessonline.hbsp.harvard.edu/hbsp/hbr/articles/article.jsp?articleID=R0707B&ml_action= get-article&print=true&ml_issueid=BR0707.Art Fritzson, Lloyd W. Howell, Jr., Dov S. Zakheim, “Military •of Millennials,” Strategy & Business, Booz|Allen|Hamilton Resilience Report (March 10, 2007).Employee Evolution — About, • www.employeeevolution.com/about/ (last visited November 19, 2008). (This is a website authored by Millennials.)Cam Marston, • Motivating the “What’s in it for Me?” Work-force. John Wiley & Sons (2007).Wayne Turmel, “Management-Issues.com,• Mind the (Gen-eration) Gap,” (Feb. 25, 2008), www.management-issues.com/2008/2/25/opinion/ mind-the-(generation)-gap.asp.

About Millennials’ Use of Technology:Samir Kapuria, Symantec, “IT Risk and the Millennial,” (Dec. •20, 2007), www.symantec.com/enterprise/security_response/weblog/2007/12/it_risk_and_the_millennials.html.

Samir Kapuria, Symantec,• “Millennial Workforce: IT Risk or Benefit?,” (Mar. 19, 2008), www.symantec.com/enterprise/security_response/weblog/2008/03/millennial_workforce_it_risk_o.html.Linda Tucci, Searchcio.com,• “Millennials Buck IT Security Policies,” (Mar. 26, 2008), http://searchcio.techtarget.com/news/article/0,289142,sid182_gci1307031,00.html.

About Work/Personal Life Boundaries:“Should Employers Play a Role in Safe Use of Cellphones in •Cars?,” The Wall Street Journal., July 18, 2001.Whitfield & Eddy, P.L.C., “Work Cell Phones and Cars: A •Dangerous Mix?,” Iowa Employment Law Letter, Dec. 2006.Konrad Lee, • “Anti-Employer Blogging,” 2006 Duke L. & Tech. Rev. 2, Jan. 17, 2006, available at www.law.duke.edu/journals/dltr/articles/2006dltr0002.html.Carolyn Hirschman, “Off Duty, Out of Work,” • HR Magazine (Vol. 48, No. 2), Feb. 2003, www.shrm.org/hrmagazine/archive/0203toc.asp.Jeffrey Hirsch and Peter Moser, • “E-Mail and the National Labor Relations Act: Concerted Activity in the Age of Elec-tronic Communication,” Employment Rights & Responsibili-ties 2002 Committee Midwinter Meeting, www.bnabooks.com/ababna/rnr/2002/email.doc.Jeffrey M. Schlossberg and Kimberly B. Malerba, “Tech-•Tock: Are employees who check devices off hours entitled to overtime compensation?” New York Law Journal, May 21, 2007, http://online.wsj.com/public/resources/documents/TechTock.pdf?mod=WSJBlog.



blog about what they claim to be substandard working conditions, including compensation or benefits policies, most likely will be protected under Section 7.23 However, legal protection under Section 7 can be lost when employees go too far. For example, unjustified or extreme disparagement of a company’s products and services that is injurious to the employer’s interests is not protected under Section 7.24 Thus, employers need to be consider whether Section 7 protects employees’ communications on the internet before taking disciplinary action against Millennials whose communications contain material that employers deem to be inappropriate.

Wage/Hour IssuesMillennials’ attachment to their wireless technology

may make the line between compensable “work” hours and non-compensable “personal” time increasingly difficult to draw, and may prompt increasing claims for allegedly unpaid wages.

Under federal wage/hour law (and the wage/hour laws of many states), an employer must pay its non-exempt employ-ees overtime compensation for “hours worked” over a cer-tain number per day or week (typically 40 hours per week). An employer’s distribution of Blackberries® to employees may imply that the employer expects employees to stay con-nected to clients, colleagues, or others while they are out of the office. The question then becomes whether employers must pay for the time an employee spends using a Black-berry® or other electronic communication device outside of regular working hours to conduct business-related activities. Employers should consider implementing an effective and enforceable policy that requires employees to record all time worked including time spent using electronic communica-tions devices outside of regular working hours for work purposes. A general policy prohibiting overtime without an employer’s prior consent may not be enough, because the wage/hour laws require employers to pay for time during which an employer “suffers” or “permits” an employee to work, which includes any time during which the employer should have known that the employee is performing work.

Does an Employer Have an Obligation to Monitor Employees’ Internet Usage?

Employers may increasingly feel tension between the desire of their Millennial employees to use their personal technolo-gies in the workplace for both work and personal purposes — and their desire for privacy with respect to personal activities — and the employers’ need to minimize exposures arising from failure to monitor inappropriate internet usage.

A New Jersey court held in 2005, in a case of first im-pression, that an employer had a legal obligation to investi-gate an employee’s activities when it knew or had reason to know that the employee was using a workplace computer

to access child pornography.25 In that case, an employee used his work computer to post an intimate photograph of his step-daughter on the internet. The step-daughter, a non-employee, was allowed to sue the corporation because it failed to investigate her step-father’s known use of the corporation’s computers to view pornography. The court held that an employer is required to take “effective inter-nal action” to stop the employee’s unlawful activities. The court also ruled that “no privacy interest of the employee stands in the way of this duty on the part of the employer.” This ruling has far-reaching implications for employers because it imposes duties on employers to ensure that their employees’ illegal conduct in the workplace does not cause injury to third parties. The XYC Corporation case may be the beginning of a trend in which other courts adopt a similar analysis in situations involving serious public policy issues such as child pornography or child abuse. Although the ruling in the XYC Corporation case is limited to the context of child pornography, courts may expand the hold-ing to impose liability on employers for their employees’ use of work computers for other unlawful activities.

Teach Your Millennials WellPrudent employers will recognize that the rapid pace of

technological change may cause equally rapid attitudinal and behavioral changes in Millennials (and future genera-tions) whose lives are intertwined with technology. Such attitudinal and behavioral changes bode well for the future if employers can channel the Millennials’ desire for being connected 24/7 and working collaboratively in ways that do not increase risks of data breaches, loss of trade secrets, discrimination, and related corporate exposures. Training entry-level employees who increasingly are Millennials about the realities of data security, privacy, ediscovery, discrimina-tion, and harassment in the digital workplace may signifi-cantly mitigate risks arising from Millennials’ workstyles.

To paraphrase a song well-known to the Boomers, “teach your Millennials well.” The dialogue arising from such training may enable Millennials to educate prior generations about more efficient work practices using new technologies, and may generate creative measures to secure data as well as mitigating other risks. As the song also says, “teach your parents well.”

Have a comment on this article? Email [email protected].

NOTES

1 U.S. v. Hanjuan Jin, No. 08-CR-192, www.usdoj.gov/usao/iln/pr/chicago/2008/pr0402_01a.pdf.

2 Neil Howe and William Strauss, “The Next 20 Years: How Cus-tomers and Workforce Attitudes Will Evolve,” Harvard Business Review (July-August 2007). The generational literature posits that in the United States distinct generations have been born within



20-to-30 year periods. Each generation’s shared experiences during their formative years creates the generation’s collective mind-set. William Strauss and Neil Howe, Generations: A History of America’s Future, 1584-2069, Chapter 1. New York: Quill (1991).

3 This summary of the generational literature is not intended to imply that such literature is necessarily accurate in all respects. Only time will tell whether the generalizations contained in the lit-erature about Millennials will turn out to be valid. Nevertheless, as discussed later in this article, several emerging legal developments suggest that some observations in the literature about Millennials have a good measure of validity and can be useful in crafting data security protections. However, the use of such generalizations for the purpose of making employment decisions may be inconsistent with state and federal prohibitions on age discrimination.

4 CarePages Home Page, www.carepages.com (last visited Novem-ber 28, 2008).

5 Facebook Home Page, www.facebook.com (last visited Novem-ber 28, 2008).

6 Blackboard Home Page, www.blackboard.com (last visited No-vember 28, 2008).

7 Wikipedia Home Page, www.wikipedia.org (last visited Novem-ber 28, 2008).

8 See, e.g., Redhat.com–Why Open Source?, www.redhat.com/about/whyopensource/ (last visited November 28, 2008).

9 Craigslist Home Page, www.craigslist.org (last visited November 28, 2008).

10 See http://blog.craigslist.org/ (last visited November 28, 2009).11 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).12 Google Books Library Project — An enhanced card catalog of

the world’s books, http://books.google.com/googlebooks/library.html (last visited November 28, 2008).

13 Jonathan Band, The Google Library Project: Both Sides of the Story, [Plagiary: Cross-Disciplinary Studies in Plagiarism, Fabrication, and Falsification], 2006, www.plagiary.org/ Google-Library-Project.pdf.

14 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L.Ed.2d 781 (2005).

15 Turnitin Home Page, www.turnitin.com (last visited November 28, 2008).

16 A.V., et al. v. iParadigms, LLC, Civil Action No. 07-0293 (E.D. Va. Mar. 11, 2008) (order granting summary judgment in favor of iParadigms against students’ claims of copyright infringement).

17 Facebook–Privacy, www.facebook.com/privacy/ (registration required) (last visited November 28, 2008).

18 Samir Kapuria, Symantec, “Millennial Workforce: IT Risk or Ben-efit?,” (Mar. 19, 2008), www.symantec.com/enterprise/security_ response/weblog/2008/03/millennial_workforce_it_risk_o.html.

19 See, e.g., California Civil Code §3426 et seq.; Virginia Code Ann. §59.1-336 et seq; Uniform Trade Secrets Act, §1(4)(ii), www.law.upenn.edu/bll/archives/ulc/fnact99/1980s/utsa85.htm.

20 See, e.g., Brave New Cyberworld: The Employer’s Legal Guide to the Interactive Internet, The Labor Lawyer, Vol 24, No. 1, pp. 109-142 (Summer 2008).

21 Simonetti v. Delta Air Lines, Inc., No. 5-cv-2321(N.D. Ga. 2005).22 29 U.S.C. §157.23 See, e.g., Timekeeping Systems, Inc., 323 N.L.R.B. 244 (1997) (find-

ing that email messages between employees regarding a new vacation policy were protected “concerted activities” under the NLRA).

24 See, e.g., Coca-Cola Bottling Works, 186 N.L.R.B. 1050 (1970) (leaflets warning customers of possible vermin and dirt in Coke bottles were not engaged in protected activity).

25 Doe v. XYC Corporation, 887 A.2d 1156 (N.J. Super. 2005).

ACC Extras on…Protecting Company Data

ACC Docket Article Trust, but Verify: The Reality of Data Protection in an Informa-•tion-Driven World (2008). With consumer data readily avail-able and with the internet making it simple and convenient to access this and other confidential information, protecting and verifying this data has become a necessary component of the job of in-house counsel. www.acc.com/docket

Program Material Is Privacy the Next Superfund? How to Navigate Privacy & Data •Security Issues (2007). This material will help you brush up on the basic concepts of privacy and data security, understand federal and state authority to regulate privacy practices, receive an update on privacy laws governing online activities, and determine what to do if a law enforcement entity starts to investigate your privacy and data security practices. www.acc.com/legalresources/resource.cfm?show=19931Privacy Law: Tips for Keeping Your Company Out of the •Headlines? Toronto (2008). Almost every day we see head-

lines about privacy or personal and financial info and data security issues in either the public or private sectors. Read this program material to find out how you can protect your company. www.acc.com/chapters/canada/prog-mats.cfm

Sample Form & Policy Computer and Internet Usage • (2008). Company policy regarding internet, email and computer usage. www.acc.com/legalresources/forms

InfoPAKSM

Technology Primer • (2008). Designed for use by law depart-ments with between one and five lawyers, this material is intended to provide information on technology issues within the in-house legal department. www.acc.com/infopaks

ACC has more material on this subject on our website. Visit www.acc.com where you can browse our resources by practice area or use our search to find documents by keyword.


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