Wednesday, April 16, 2014
CALL FOR PROPOSALS
ASSOCIATION OF AMERICAN LAW SCHOOLS (AALS)
SECTION ON CONTRACTS
2015 ANNUAL MEETING
JANUARY 2-5, 2015
MIND THE GAP! – CONTRACTS, TECHNOLOGY AND LEGAL GAPS
The AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, Mind the Gap! - Contracts, Technology and Legal Gaps, to be held in Washington, D.C. on January 2-January 5, 2015.
Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property. Who owns the data collected by embedded medical devices? Can employers wipe departing employees’ phone data? To what extent are companies liable for harms created by their inventions, such as driverless cars? Who owns crowd sourced content?
Courts and legislatures are often slow to respond to these issues. To fill this legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. They limit their liability and allocate rights through contractual provisions. Technology affects the way contracts are used as well. Employers may have employees agree to remote phone wiping policies in their employment agreement or through click wrap agreements that pop up when they connect to the network server. Through contracts, businesses establish norms that can be hard to undo. The norm of licensing instead of selling software, for example, was established through contract and has become entrenched as a business practice. The collection of online personal information through online contracts is another example.
The Section seeks two or three speakers to join our panel of invited experts to discuss how technology has affected the use of contracts. How have parties used contracts to address the risks created by technologies? In what ways have contracts been used to privately legislate in the gap created by technological advancements? What concerns are raised when private ordering is used to fill the legal gap created by technology? What are, or should be, the limits of consent and contracting where emerging technologies are involved?
Drafts and completed papers are welcome though not required, and must be accompanied by an abstract. Preference will be given to proposals that are substantially complete. Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication). There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.
We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section. We will give some preference to those who have not recently participated in the Section’s annual meeting program.
DEADLINE: August 15, 2014. Please e-mail an abstract or proposal to section chair, Nancy Kim (email@example.com) with “AALS Submission” in the title line by 5:00pm (Pacific Time) August 15, 2014. Submissions must be in Word or PDF format.
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Monday, March 31, 2014
Brian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.
(necklace above available from the Bloggess's online store)
Tuesday, February 25, 2014
Congratulations to Laura Cooper (Minnesota), Dennis Nolan (South Carolina, Emeritus), Stephen Befort (Minnesota), and our own Rick Bales on publication of the third edition of their casebook (from the Labor Law Group), ADR in the Workplace. From West's announcement:
West Academic has just published the Third Edition of ADR in the Workplace, a casebook that covers substantive and procedural issues of arbitration and mediation in both the union and non-union workplace. On behalf of The Labor Law Group, authors Laura J. Cooper, Dennis R. Nolan, Richard A. Bales and Stephen F. Befort, have updated the 2005 Second Edition in many respects including recent court and arbitration decisions, new scholarly analysis, and current notes and questions. Changes include new empirical and statistical information, a significant number of new labor and employment arbitration cases illustrating contemporary developments, a look at the effects of the recent upheavals in state regulation of public sector collective bargaining, and an expanded section on federal sector arbitration. Among the book’s appendices is an extensive research guide on labor arbitration and alternative dispute resolution in employment. West Academic plans to publish in Summer 2014, for professors adopting ADR in the Workplace, a book of materials and teacher’s guidance for classroom simulations of arbitration and mediation in both union and non-union settings.
Friday, December 20, 2013
Steve Cohen (Labor Management Advisory Group) has posted the first in a series of articles at Psychology Today about transgender individuals in the workplace. The transgender population, he says, "is the next frontier in social justice". He points out that transgender employees who come out are worried not just about discrimination, but about rejection. See Fairness in the Employment Setting Can Be Everything.
Monday, December 16, 2013
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Really interesting work.
Friday, December 13, 2013
Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.
Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.
A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.
Monday, December 2, 2013
Moneyball was, of course, about a kind of personnel selection process, albeit in the exotic universe of picking baseball players, so it's not surprising that "big data" has continued to develop in the employment setting. If you haven't been following this stuff, a good place to start is a recent article in the Atlantic, They're Watching You at Work.
As the scare title suggests, some of the developments continue the seemingly inexorable erosion of employee privacy. For example, electronic "badges" that collect data on employee interactions at a pretty deep level -- length, tone of voice, how much people interrupt, demonstration of empathy, etc. Team performance, apparently, can be predicted to a remarkable degree merely by the number of exchanges. And more refined data can identify "charismatic connectors" (maybe we used to call them "supervisors"?).
But privacy issues aside, Big Data has the potential to shift the criteria by which employers hire, and maybe not in obvious ways. One company thinks "one solid predictor of strong coding is an affinity for a particular Japanese manga site." And another uses video games (Wasabi Waiter, for one) "to suss out human potential." You might want to rethink telling Junior to put the iPad down and pick up a book.
Of course, in one way we've been here before, as the article stresses. "Scientific" human resources is not new, but this time, unlike prior fads, the approaches may in fact be scientific. In other words, the terabytes of data now available may allow a present day employer to have far more confidence that a successful Wasabi Waiter player will perform well on the job than an employer in the past could have expected from someone who passed the Wonderlic test with flying scores.
If so, we may see massive changes in the way employees are selected and rewarded, and not so very far in the future. Not all of which may be bad: the article stresses that such techniques may ameliorate the discriminatory effects of cognitive bias and the inequality concerns with current use of university/GPA as rough screens for probable performance.
But the legal implications remain to be worked out. We may be looking at yet another round of testing litigation, although this time the "test" being challenged might be Wasabi Waiter. (Oh, if you're wondering, the goal is to deliver the right sushi order to the right customer in an increasingly crowded restaurant.)
I don't really know enough to assess this brave new world, and I do well recall that earlier "advancements" promised similar results with very little success. Still, it's something to keep an eye on.
Hat tip to Liz Tippett for sending me the article.
Tuesday, November 5, 2013
After years of no news, it looks like there is suddenly movement on the Employment Non-Discrimination Act. The current version, introduced in both the House (H.R. 1755) and the Senate (S. 815) on April 25th of this year, was voted out of committee in July and then had stalled, when Monday, the Senate overwhelmingly voted to invoke cloture and move forward to a vote. The Senate version is expected to pass as early as this week.
John Boehner has apparently said that he'll oppose the bill in the house, arguing that it will lead to frivolous litigation and hurt small businesses. Another frequent critique of the legislation is that it will interfere with religious freedom, although it does not apply to religious organizations that are allowed to discriminate on the basis of religion under Title VII.
Interestingly, according to polls, most people support a ban on LGBTQ discrimination, and in fact 80% of those polled think this protection already exists. There are certainly arguments that Title VII's ban on sex discrimination prohibits at least some discrimination on the basis of sexual orientation and identity (see here, here, and here for some of the EEOC's views supporting that). But the courts have not always agreed, and according to this infographic, only 21 states (and DC) have a ban on sexual orientation discrimination while 16 states (and DC) ban discrimination on the basis of gender identity.
Wednesday, October 30, 2013
Friend of the blog Marcy Karin (ASU) writes to remind us of a symposium/CLE that readers of the blog will be interested in, especially those of you in the New York area. On Friday, Hofstra's Labor and Employment Law Journal will be holding a symposium on health legislation and the workplace. Forging a Path: Dissecting Controversial Health Legislation in the Workplace. The symposium will take place at Hofstra University Club, David S. Mack Hall, North Campus, Hofstra University, on Friday, November 1, 2013, from 9 am to 3 pm.
The lineup is impressive. Here are the details:
Keynote Speaker: Phyllis Borzi, Assistant Secretary for Employee Benefits Security, U.S. Department of Labor
Panel 1: The Evolution of Anti-Discrimination Disability Laws: Defining Reasonable Accommodation and Disability
- Rick Ostrove ’96, Partner, Leeds Brown Law, PC
- Keith Frank ’89, Partner, Perez & Varvaro
- Marcy Karin, Clinical Professor of Law and Director, Work-Life Policy Unit, Civil Justice Clinic, Sandra Day O’Connor College of Law at Arizona State University
- Jeffrey Schlossberg ’84, Of Counsel, Jackson Lewis LLP
- E. Pierce Blue, Special Assistant and Attorney Advisor, Office of Commissioner Chai Feldblum, U.S. Equal Employment Opportunity Commission
Panel 2: Workplace Uncertainties Under the ACA: Preparing the Employer and Employee for the Road Ahead
- Jill Bergman, Vice President of Compliance, Chernoff Diamond & Co., LLC
- Steven Friedman, Shareholder and Co-Chair, Employee Benefits Practice Group, Littler Mendelson P.C.
Panel 3: The FMLA 20 Years Later: What Have We Learned and Where Do We Go From Here?
- Robin Runge, Professorial Lecturer in Law, George Washington University Law School
- Rona Kitchen, Assistant Professor of Law, Duquesne University School of Law
- Joseph Lynett, Partner, Jackson Lewis LLP
- Nicole Porter, Professor of Law, The University of Toledo College of Law
Registration is $100 per person. Includes continental breakfast, lunch and CLE credits. Free for Hofstra University students, faculty, staff and administrators.
Sponsored by: Littler Mendelson P.C.
October 30, 2013 in Conferences & Colloquia, Disability, Employment Discrimination, Faculty Presentations, Pension and Benefits, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, September 19, 2013
Some of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech. I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.
Yesterday, the Fourth Circuti made the world right again by finding that liking a candidate's campaign page on Facebook was in fact protected First Amendment speech.
On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory: Social Media and Public Sector Labor Law. The article has now been published in North Kentucky Law Review as part of the Law + Informatics Symposium on Labor and Employment Issues. A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.
Wednesday, September 18, 2013
Orly Lobel (San Diego) is about to release (on Sept. 30, 2013) her new book through Yale University Press: TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Amazon link where to find book).From the press release:In today’s fiercely competitive business environment, the “War for Talent” is one of the most significant organizational challenges of the decade. The term, coined by McKinsey & Company in 1997, describes an increasingly competitive landscape for recruiting and retaining talented employees in our innovation-driven economy. Today, the talent wars have become characterized by a singular factor: the control of human capital, or, people and the knowledge they carry. The belief is that if an organization can control these assets – that is, if Google, for example, can prevent its employees from defecting to Facebook, taking critical skills knowledge with them – it will acquire an advantage and become a top player in the industry.But in her new book, TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press; hardcover; September 24, 2013), University of San Diego Law Professor Orly Lobel argues that we’ve got the logic all wrong. Far from promoting innovation, too much control of talent – through tactics such as harsh non-compete agreements and strict protection of trade secrets, patents, and copyright – backfires and ultimately stifles the very innovation that organizations so desperately seek. Drawing on original research into motivating employee creativity, analysis of recent litigation, and empirical data from economics, psychology, and network science, Lobel explores how the ways in which we fight over talent can either enhance or inhibit the innovative spirit of an organization. Based on her research, as well as well as her experiences consulting for businesses, inventors and entrepreneurs, Lobel offers leaders a new paradigm for managing people and their ideas in the 21st century.
Looks to be a great and timely read and makes a persuasive argument why restrictive covenants in employment may be squelching worker innovativation America needs to complete in the global economy of the 21st Century. Pick up a copy!
Thursday, August 1, 2013
From the National Jurist:
As you think about upcoming fall hiring, you might want to check out some of the practice areas where there might be more jobs. According to Denney’s “What’s Hot and What’s Not in the Legal Profession,” these practice areas are worth investigating:
Areas that are “Hot” and may be hiring:
1. Intellectual Property Litigation
2. Health Care Law
3. Energy Law
4. Regulatory Law
5. Immigration Law
6. Labor & Employment Law
Monday, July 8, 2013
Thanks to Mike Zimmer (Loyola-Chicago) for bringing to my attention this post on the Concurring Opinion Blog from Frank Pasquale entitled: From Status to Contract to Fealty.
Here's a taste:
“Consent” can be a near-universal solvent in employment law, eviscerating rights that would be considered basic outside the workplace. Soon after Independence Day, Alana Semuels reported a new twist on the trend: contracts to tie even low-wage employees to a given workplace, on penalty of not working at any competing business for months or a year afterward:
Mazhar Saleem is bound to his employer by a number of contracts that made it hard to earn enough money to live, but also hard to go work anywhere else. He drives a town car for a company in New York as an independent contractor, rather than as a full-time employee. That means he doesn’t get benefits, never gets overtime, and isn’t guaranteed set hours.
But he also signed a non-compete contract when he started working, meaning he can’t drive a car for anyone else in New York. So even if his employer doesn’t give him any work, he’s not allowed to go find it elsewhere. . . .
In a recent case in Worcester, Mass., three women working at a hair salon tried to leave after theirconditions at work deteriorated. All three received cease and desist letters when they started working elsewhere, because they had signed non-compete clauses. They had to wait a year for the clauses to expire before they could work in the area again.
In fact, these exclusivity clauses even extend to the hunt for temporary, no-benefits work, as Fed governor Sarah Bloom Raskin found out at a job fair:
‘So what I need to do is put in my resume and then I’ll be able to get this job?’ And she said ‘yes.’ And I said: ‘while I’m waiting can I go to some other firms and throw my resume into their databases as well?’ And she said ‘oh no, you can’t do that, because you’re going to sign a letter of intent.’ And that letter of intent is basically an exclusivity agreement that says that by putting your resume in here you agree to not put your resume anywhere else.
Corey Robin explains the tricky issues these cases raise for advocates of “freedom of contract.” Libertarians often point out a paradox of democratic theory: a dictatorial party could win an election, then decide “no more elections.” Is not something similar happening when bosses, emboldened by a terrible job market and a near-infinite supply of cheap labor, bind employees like the hair salon did? If workers have neither voice (no union) nor exit (no chance to seek better employment), what’s left but loyalty? Or, to put it feudally, fealty?
I appreciate Frank' post, but wonder whether these covenants for lower paying jobs would be enforceable in most states given the lack of unqiue protectible legitimate business interests (though the hair stylist situation may be a closer situation). I am also skpetical that the letters of intent can keep the employees from applying to other employers in the at-will world in which we live.
Of course, the lack of employee sophistication and lack of access to knowledgeable attorneys who know the employment law in this area makes these developments troubling nonetheless.
Friday, June 14, 2013
In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.
I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.
Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.
Congratulations to both Miriam Cherry (St. Louis) and Richard Carlson (Sout Texas) who were both mentioned in a recent article by AOL News discussing the importance of virtual workplace whistleblowers in light of the Snowden affair. The article is entitled: New Type Of Whistle-Blower: Young, Internet Savvy And Headed For Jail.
In particular, Miriam's latest article was written up by AOL News. Here are some highlights:
Miriam Cherry, a professor at Saint Louis University School of Law and author of the report, calls them "virtual whistle-blowers." Unlike past generations, they're blogging, dropping surreptitious videos onto YouTube or leaking documents to online groups such as WikiLeaks, as Bradley Manning allegedly did. Cherry points to a growing army of "whistle-bloggers," employees who blog -- usually anonymously -- about illegal activities at their places of work. No state so far, she notes, has whistle-blower laws on the books to explicitly protect bloggers -- let alone the people who post YouTube videos or leak to Wikileaks.
Here is a link to Miriam's featured article. Congratulations to both Miriam and Richard!
Thursday, June 13, 2013
Reuters recently did a survey of Wal-Mart's hiring in recent months and published the findings today. The results are making a fairly decent size buzz in other media outlets and on twitter. The survey revealed a big surge in hiring temporary workers, who are automatically terminated after 180 days, although they can reapply for their positions. About half the stores surveyed were hiring only temporary workers, while others were hiring a mix of temporary and non-temporary workers. It appears that all of the temporary workers were hired to work part time, and that Wal-Mart makes a distinction between regular part-time work, and temporary part-time work. Regular workers aren't automatically terminated at the 180-day mark. The stores explained that this strategy allows them to be more flexible, able to react more quickly to changes in demand. Of similar types of stores, only Dollar General does temporary hiring year round. Most only do temporary hiring at the holiday season.
I have a serious question about this news. What does the "temporary" designation get Wal-Mart? It is a term without legal effect. We all know that in reality, nearly all of Wal-Mart's workers, and most workers in the U.S., are effectively temporary workers. They can be terminated at any time for nearly any reason with no notice. We also know, though, from Pauline Kim's (Wash. U. St. L.) work, and our own experiences, that many if not most employees don't realize this.
Clearly, people do attach legal significance to the terminology. Most of the commentary on the Wal-Mart news suggests that this kind of terminology has legal significance, as if the default employment relationship gave employees some level of job security, and hiring workers labeled "temporary" outside of the busiest season for that business is some kind of break with the norms of employment relationships.
So why use this terminology that has no legal consequences? Is this designation a way to make the workers feel even more insecure? Does it make them less likely to assert rights during their employment or after because they are told up front not to expect to continue? Is this kind of like noncompete agreements in places they are not enforceable? I have the same problem with other HR terminology, too, like "probationary" employees in an at-will setting. Or even full or part-time in an at-will context before the FMLA or the ACA mandated some limited benefits based on the number of hours an employee worked.
I ask these questions because I genuinely want to know what the answers might be. I speak to non-lawyers a lot about employment law issues, and I find that nearly every discussion or presentation ends up with me giving them bad news, that they don't have job security unless they have an individual or collective contract (or some statutory rights like civil servants and public school teachers). Our students, like most people, also tend to believe employees have job security until they take our classes.
Maybe part of an answer is that even though at-will employees have no legal job security, they have practical job security because most employers have incentives to keep employees. Small employers and people with hiring and firing power often have personal relationships with those they have power over that make firing people difficult. And employers' own beliefs, which tend to overestimate the risk of liability mean that they rarely terminate people without a pretty good reason. Is that enough?
Feel free to weigh in on any of the questions in the comments.
Wednesday, June 12, 2013
Christine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her forthcoming article in the Oregon Law Review: The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies.
Here is the abstract:
Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act-protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.
Hard to think of a more relevant and timely topic in the area of American labor law. I was just explaining to one of my colleagues the other day that much of the action in traditional labor law in the next few years might be with regard to the Section 7 rights of non-union employees. This article provides much needed guidance of what those evolving rights might look like in the social media milieu.
Thursday, May 30, 2013
Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.
Here is the abstract:
This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.
This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation. As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.
Monday, April 22, 2013
One of the areas that I have recently been researching regards the impact of technology of employees' expectations of privacy while at work or engaged in work outside of the workplace. Though not completely related, now comes word that a large law firm, King & Spalding, has put into place a very aggressive email policy. Here are some excerpts of that policy:
KING & SPALDING — FIRM-WIDE-ANNOUNCEMENT — EMAIL ACCESS
New Policy Prohibiting Access to Non-King & Spalding Email Accounts (“Personal Email Accounts”) from Firm Computers
The firm’s internal security experts, as well as our outside security experts, have advised us that accessing Personal Email Accounts from firm computers creates a significant security risk. Therefore, effective May 1, 2013, access to Personal Email Accounts (i.e., anything other than your kslaw.com email, including, but not limited, to personal email accounts like Gmail, Yahoo, Hotmail, cable company, etc.) from King & Spalding computers will no longer be permitted.
Most personal email sites will be blocked while you are on the firm’s network. However, you should not access Personal Email Accounts from a firm computer, even if you are not automatically blocked when trying to do so. For example, you should not access Personal Email Accounts from a firm laptop, even when the laptop is not connected to the firm’s network (i.e., from your home network, a hotel internet, etc.). The firm’s computer systems hold confidential information about our clients and the firm and, as you know from reading articles in the press, individual users who innocently click on malicious e-mails are often the cause of security breaches. We need your help in protecting our systems by following this and other security related policies, even when you can do things that you are not supposed to do . . . .
Permissible Ways of Accessing Personal Email Accounts
The prohibition against accessing Personal Email Accounts from firm computers does not impact your ability to access Personal Email Accounts such as Gmail, Yahoo or Hotmail from your own personal devices (e.g., smartphones, iPads, tablets, personal laptops, etc.) while at the firm . . . .
Clearly, K&S has acted decisively to protect against leaks of confidential information and perhaps against compromosing their system through viruses and other malware. Although this policy would appear to diminsih whatever expectations of privacy individuals have in personal email use during work, other cases, under the Electroic Communication Privacy Act (EPCA) stand for the proposition that whereas an employer has the ability to monitor work emails and other computer use for company violations, they do not have the same ability to monitor personal email accounts.
Perhaps because of the inability to monitor personal email accounts, the firm decided to just prohibit all access to such email period. I wonder whether there will be pushback from employees, or under current law, do employers like K&S have carte blanche when making these types of decisions in the workplace concerning email and use of technology?