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The 21st Century Workplace: Electronic Communication Devices and the “New Media”

ACCA, San Diego ChapterGeneral Counsel Roundtable and All Day MCLE

Rick BergstromMorrison & Foerster LLPSan Diego, CA

Introduction

• The range of electronic devices at the workplace:• Cell phones, Camera phones,

Scanner phones, Text message phones

• PDA: Phone, E-mail and Internet• iPods• Laptops and Workstation computers• GPS and RFIDs• Flash drives and External hard

drives

Introduction

• The “new media” used at the workplace• E-mail• Instant Messaging• Texting• The Internet• Blogging, Vlogging,

Photologging§ Web 2.0 and Gen

Y/iGen/Millennials

Introduction

Employers v. Employees• Productivity• Increased communication,

collaboration, networking, and creativity

• Forum to complain

Introduction

• Legal Issues Related to Workplace Use of Electronic Communication Devices• Trade secret misappropriation• Harassment, discrimination, and retaliation• Free speech• Privacy • Defamation• Employer liability for employee torts• Wrongful termination claims• How to unmask the “anonymous employee”

Why are employer issues increasing?

• Devices small and easy to obtain:• 250 mg flash drive for $10.• iPod costs $100. § As of April 2007, Apple reports to have sold 100 million units.

• Purchase 250 GB hard drive for $80.• 85% of Americans own at least one cell phone.• As of January 2007, there were 1.1 billion Internet users

(20% of population).

Why are employer issues increasing?• Employees use devices as a rapid response

machine.• Less formal medium = less thought.

• There is an electronic record.• IM / Texting examples:§ “pls suck my . . . “§ “i cn’t wait to stick my finger up y’r . . .”§ “pls stop sending me these messages!”

Overview of Topics

• Human Tracking Devices

• Internet Use, E-mail, IM, TM

• Blogging

• Cell Phones

Human Tracking Devices –“Geoslavery”

• GPS systems, even in handhelds

• RFIDs (schools using these)

• Employer Use: Location, productivity and security

• Employee Concerns: Privacy, potential stress and disability claims from the “24/7” approach???

Prohibition on “Chipping Employees”

• SB 362 Effective 1/1/08• Can’t require, coerce or compel another to undergo the

implanting of an “Identification Device” on or under the skin.§ Can’t Condition Employment, Promotion or other

Employment Benefits on the Individual’s Consent to Implantation of an “Identification Device.”

• SB 28, 29, 30, & 31 pending• Further restrict use of RFIDs on driver licenses, school ID

cards, and government documents.

Human Tracking Devices –“Geoslavery”

• Policy considerations:• State purpose of monitoring• Device used• Who will be doing monitoring• Who will be monitored• When and where• Discipline for incorrect location• Written consent?

Internet Use, E-mail, IM, and TM

• Hostile work environment

• Employers have a legal duty to take prompt corrective action to prevent harassment from all forms of communication, electronic or otherwise.

• The employer’s response can be a defense to harassment by a non-supervisor.

• No longer just “he said, she said” battle.

Categories Of Unlawful Harassment

• Race (color too)• National origin• Citizenship• Age• Religion • Gender• Sexual orientation

• Disability• Medical condition• Military status• Marital status• Pregnancy• Political

affiliations/activities

IM and TM (SMS)

• Teenage E-mail on decline.• Too slow• Favor less formal communication

• The “instant” nature can be regretted.• The same harassment and discrimination issues as

for E-mails.• A record may exist at employer, IPS, or via cut and

paste copy.• The same policies as E-mail should apply.

• Policy should include consent to obtain ISP records.• Consider length of retention.

Sexual Harassment In Cyberspace

• Blakey v. Continental Airlines, N.J. (N.J. 2000)• Employer posted schedules and assignments for pilots on

internet bulletin board.• In chat area, male pilots posted negative remarks about a

female pilot.• Female pilot sues airline for harassment.

• Result:• Employer has duty to stop employment related harassment.• Issues:

• Was bulletin board “related to the workplace?”• Did employer have notice?

• Blakely’s Lessons• Don’t need to troll cyberspace looking for harassment of

employees.• But, § If you are paying for or sponsoring the chat room, it likely

is connected to the workplace.§ Should have a policy governing use.§ If you are uncertain whether cyberspace activity is

connected to the workplace, resolve doubt in favor of pursuing corrective action.

o Risk of harassment claim is much greater than risk of employee privacy or free speech claim.

Sexual Harassment In Cyberspace

Do You Need To Monitor Internet Use?

• Doe v. XYC Corp. (N.J. 2005) • XYZ Corp put on notice that

employee accessing porn. • XYZ reviewed websites and found

child pornography involving stepdaughter.

• Did not report to authorities.• At time, employee sexually abusing

stepdaughter.• Employee arrested.• Stepdaughter sued XYZ Corp for

failure to report.

Do You Need To Monitor Internet Use?

• Was employer negligent for failing to monitor and report unlawful activity?• Employee downloaded over 1,000 images at work.• Employer had software to monitor activity.• Employer had a policy giving it a right to monitor

employee computer use and Internet activity.• Employer knew about conduct.

• Result: • Employer had a duty to the stepdaughter to inform the police

to extent it knew or should have known of activity.§ Part of a general employer duty to prevent harm to others,

such as committing a crime.

• A corresponding duty exists to take effective internal company action (either discipline or termination).

Do You Need To Monitor Internet Use?

• Lessons:• Enforce policy prohibiting unlawful Internet activity.• Employers cannot ignore Internet-based criminal activities

when known.• Employers must consider reporting the unlawful conduct to

the authorities.• Install “nannyware.”

Do You Need To Monitor Internet Use?

Web logs = Blogs

• A website where regular entries are made and posted in reverse chronological order.• Updated regularly• Article-based publishing

• Commentary on topics or personal journal entries• Diaries about people’s personal lives• Political views• “Gripe” sites – “mycompanysucks.com”

The “Blogosphere”

• First blog appeared in 1999.• Now over 50 million blogs in use.• Over 58% of internet users reported reading blogs.• 12% of internet users posted on blogs.

• Company-sponsored blogs• Both internal and public.• Increasingly used by business for marketing, branding, and

public relations.• Used as a forum for communication within the company.

Blogs And The Workplace

• Workplace Issues:• Employees making comments about their employers in

personal blogs.• Employees supplying company confidential information to

blog forums.• Inappropriate blogs• Blogs that create copyright/trademark infringement issues• Blogs that violate security laws

Blogging And Employee Discipline

• Employers terminating employees for blog content offenses: “Dooced.”

Wikipedia, the free encyclopedia

Ellen Simonetti -- Dooced

Michael Hanscom -- Dooced

Employee Discipline: The Risks

• What should you consider before disciplining employees for blogging?• Whether similarly situated employees have been treated the

same to avoid discrimination claims.§ e.g. “The Queen of Sky Blog”

• Whether blog constitutes “whistleblowing.”• Whether the blogging qualifies for protection under

California Labor Code provisions.• Whether blog is protected “concerted” activity.

Employee Protections: Whistleblowers

• “Protected activity”• Opposing unlawful activity• Exercising a legal right

(including political activity and reporting to authorities under California Labor Code, Sarbanes-Oxley, Tamenyclaims)

• Is disclosing this information on a blog protected activity?

Employee Protections: Concerted Activity

• Complaints about terms and conditions of employment may be “concerted” activity.

• Allied Aviation (NLRB 1980): Complaining of airline safety issues is concerted activity.

• Timekeeping Systems (NLRB 1997): E-mail about vacation policy/other compensation issues is concerted activity.

• What is not “concerted” activity:• Defamatory statements• Disclosure of trade secrets or other confidential information• Complaints made in bad faith• Disparagement of company products• Obscene or harassing statements • General disagreement about business decisions (unless

about terms and conditions of employment)

Employee Protections: Concerted Activity

Blogging Policies

• Does your company need a Blogging Policy?• Yes, if you want to encourage,

discourage, prohibit or regulate employee blogging.

• For company-sponsored blogs: Code of conduct, communications policies, insider trading policies and non-disclosure agreements all need to apply to an employee’s company-related blog posts.

Blogging Policies

• The Essentials for Company blogs:• Notice that the views expressed are employee’s own.• Requirement to not disclose confidential information.• “Respectful” in communications.• Employer right to request that employee stop posting.• Notice that management can remove unlawful or improper

postings or shut the down blog.• Notice to employees that they can be disciplined for violating

policies.• Other company policies and agreements apply.

Minimizing Risk For Company Blogs

• Address blogging in employee training.

• Set up a monitoring procedure.

• Respond to improper or unlawful postings.

• Consistent policy enforcement

Cell Phones: “Driving While Talking”

• Examples to remember:• Cooley Godward attorney struck

teenager while talking with client.§ Cooley settled.§ Judgment against attorney for $2

million, felony conviction, license suspended.

• Smith Barney broker ran red light and hit motorcyclist while talking to client.§ Smith Barney paid $500,000

• Respondeat Superior/“course and scope” liability

• Further potential liability for California employers

• July 1, 2008: Mandatory “hands free”cell phone use while operating motor vehicles.

§ Negligence “per se” for violating statute. Cal. Evid. Code section 669(a).

Cell Phones: “Driving While Talking”

A New Abuse: “Driving While Texting”

Employer Response

• Cell Phone and Texting Driving Policy• Prohibit use of cell phones while driving? • Require employees to pull over for calls?• In California, at least limit to “hands free”

• Employer required to provide?

• No TWD --“Crackberries”

• Discipline for violations• DMV check

Other Risks With Cell Phones

• Can take pictures, videos, scan, fax, and E-mail.

• Getting smaller all the time.• 41% of U.S. households now have a

camera phone (much higher in SD).• 600 million camera phones in use by

year end 2007.• 85% of phones will have a camera by 2009.

Special Risks With Camera Phones

• A perfect device for stealing confidential information.

• Similar issue for iPods and electronic media.• “Slurping”

• To be “trade secret,”reasonable efforts must be taken to protect the information.

Employer Response

• Consider banning camera phones:• Samsung and Chrysler do this.• Issue of enforcement

• Ban from areas where confidential information can be accessed.

• Policy limiting use of camera phones at work.

Conclusion

• Final lesson from Wal-Mart:• Whatever you do about addressing and monitoring

employee electronic communications, don’t call the people in charge of the “Threat Research & Analysis Group” (San Jose Mercury News, Fired Technician Accuses Wal-Mart of Spying (April 5, 2007)).