leadingage nyannual conference law -bagyi.pdf · • addresses personal use – on employer...

LeadingAge NY Annual Conference

May 24, 2016

John M. Bagyi, Esq., SPHR, SHRM-SCP22 Corporate Woods Boulevard, Suite 501, Albany, NY 12211

Telephone: (518) [email protected]

ADDRESSING EMPLOYMENT LAW

CONCERNS ARISING FROM

EMPLOYEE USE OF TECHNOLOGY

J John M. Bagyi

Recognized by Human Resource Executive magazine as one of the Nation’s MostPowerful Employment Attorneys, John counsels and represents employers onlabor and employment issues helping them achieve and maintain legalcompliance, while improving employee engagement and workplace productivity.With years of experience advising employers in a broad range of industries, Johnprovides his clients practical, real world advice, mindful of the need to balance thelegal “ideal” with a client’s operational reality.

John focuses on: Preventive counseling, training and policy development with regard

to: sexual and other prohibited harassment; wage and hour compliance;social media; performance management, progressive discipline andterminations; recruiting, hiring and retention; reasonable accommodationsand other ADA and FMLA issues; drugs and alcohol; employeehandbooks; technology and privacy

General counseling concerning compliance with federal and stateemployment laws, including wage and hour and EEO compliance audits,and consultation on individual employment decisions

Workplace investigations relating to harassment and other EEOconcerns, ethics violations and other workplace misconduct

Business transitions, such as mergers, acquisitions and reductions inforce

Contracts/agreements including employment agreements, retentionagreements, executive contracts, alternative dispute resolution, restrictiveand other covenants, and severance plans and agreements

Administrative proceedings before the EEOC, Division of HumanRights, NLRB, and federal and state departments of labor

Listed In New York Super Lawyers

®, 2009 - present

The Best Lawyers in America®, 2007-present

Honors and Awards “Nation’s Most Powerful Employment Attorneys,” Human Resource

Executive®

2014, 2015 “Lawyer of the Year” Albany Litigation - Labor and Employment, The Best

Lawyers in America®

2015 “Lawyer of the Year” Albany Employment Law – Management, The Best

Lawyers in America®

2014 "Lawyer of the Year" Albany Labor Law - Management, The Best Lawyers

in America®

2014 “Friend of the Year,” Capital Region Human Resources Association, 2012 Excellence in Alumni Service Award, Albany Law School, 2005 40 Under Forty Honoree, Capital District Business Review, 2004 Executive Editor, Albany Law Review

Community Involvement Founder & Facilitator, CRHRA HR Leadership Program, 2006-present General Counsel, New York State Society for Human Resource

Management, 2005-present Founder & Facilitator, CRHRA/BS&K HR Executive Briefing Series,

2004-present Co-Chair, Capital Leadership Steering Committee, Albany-Colonie

Chamber of Commerce, 2003-2005 Board of Directors, Capital Region Human Resources Association,

2002-2004

Contact22 Corporate WoodsAlbany NY [email protected] Direct518.533.3299 Fax

EducationAlbany Law School of Union

University (J.D., magna cumlaude, 1996)

University at Albany, StateUniversity of New York(B.A., 1993)

Bar AdmissionsNew YorkMassachusettsU.S. Supreme CourtNorthern District of New York

AffiliationsAlbany Co. Bar AssociationAmerican Bar AssociationAmerican Society for

Healthcare HumanResources Administration(ASHHRA)

College and UniversityPersonnel Association(CUPA-HR)

National Association ofCollege and UniversityAttorneys (NACUA)

New York State BarAssociation

LinkedInlinkedin.com/in/johnbagyi

Twitter@johnbagyi

Facebookfacebook.com/john.bagyi

1 © 2016 Bond, Schoeneck & King, PLLC359478.3

Agenda

• The Baselineo Technology use policies

o Social media

• Emerging Issueso Protecting your investment in social media

o Employee use of employer email

oWage and hour concerns

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THE BASELINE

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Technology Use Policies

• Defines scope (e.g., computers, tablets, smartphones; internet use, e-mails, text and instantmessages)

• Identifies permissible and impermissible uses

• Addresses personal use – on employerequipment and employer time

• Discloses and obtains express and/or impliedconsent to accessing, intercepting, monitoringand disclosure

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Social Media

• The ConcernsoUse in hiring

o Employee misconduct

o Supervisors befriending subordinates

(cont’d)

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Social Media

• The Challengeo Employees believe use of social media outside of

work is “my time, my business”

o Employers need to make employment decisionsbased on best available information

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Use of Social Media in Hiring

• Accessing social media as part of thehiring/screening process is not unlawful

• However, there are some legal concerns of whichemployers must consider. Namely:o Title VII

o ADEA

o ADA

oNLRA

o FMLA

oGINA

oNYHRL

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Addressing Hiring ConcernsRegarding Social Media

• At a minimum – provide clear direction to those involvedin hiring regarding the use of social media in hiring

• If social media background checks are part of the hiringprocess, policy addresses:

oWho will conduct search

oWhen search will occur (and for what positions)

oWhat will be searched

oWhat information will and will not be considered/passed along

oRetention of information on which you will rely

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EMPLOYEE MISCONDUCT ON

SOCIAL MEDIA

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Lawful or Unlawful?

• A bartender was upset about that waitresses did nothave to share tips with him even though he helped servefood.

• Bartender complained about this policy to anotherbartender, who agreed it “sucked”. Neither bartenderraised this issue with management.

• The bartender then vented on his Facebook wall to arelative, complaining that he hadn’t had a raise in fiveyears and that he was doing the waitresses’ workwithout tips.

(cont’d)

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Lawful or Unlawful?

• He also referred to the employer’s customersas “rednecks” and stated that he hoped they“choked on glass as they drove home drunk”.

• No coworkers commented on Facebook.

• The employer saw the Facebook post andterminated the bartender.

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• Yes. Activity may lose its protection if it is“opprobrious” or “disloyal, reckless, or maliciouslyuntrue”

• Considerations:owhere the discussion occurred (i.e., in the workplace)

o subject matter of the discussion

o nature of the outburst

owhether the outburst was provoked by a ULP by theemployer

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Does Protected, Concerted ActivityEver Lose Its Protection?

Lawful or Unlawful?

• Two employees discovered that they owed moreincome taxes than they had expected, allegedlydue to an employer withholding error.

• One of the employees discussed this at workwith other employees, and some employeescomplained. In response, the company planneda staff meeting to discuss these concerns.

(cont’d)

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Lawful or Unlawful?

• In the meantime, a former employee wrote on hisFacebook page, "Maybe someone should do the ownersof Triple Play a favor and buy it from them. They can'teven do the tax paperwork correctly!!! Now I OWEmoney...Wtf!!!!"

• A number of people respond to this post, including anemployee who called her boss "an a__hole."

• Another employee "liked" one of the other messages inthe thread.

• Employer learns of the posts and fires the employees fordisloyalty

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Social Media and the NLRB

• The NLRB Office of the General Counsel hasproduced three reports summarizing casesbefore the NLRB related to:o The lawfulness of an employer’s social media policies

and rules

o The “protected” and/or “concerted” nature ofemployees’ social media posts (i.e., employeediscipline related to social media use)

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When Is A Social Media PostProtected by the NLRA?

• When it is posted by a nonsupervisoryemployee; and

• Constitutes protected, concerted activity

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When Is Activity “Protected”?

• Protected activity includes a broad range ofconduct that relates to “wages, hours, workingconditions, and other terms and conditions ofemployment”, or banding together for “mutual aidor protection”

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When Is Activity “Concerted”?

• Activity is concerted when an employee acts withor on the authority of other employees, and notsolely by and on behalf of the employee himself

• Considerations:oDid the employee appeal to co-workers for assistance?

oDid employees discuss the issue before orcontemporaneous with the online posting?

oDid employees raise the concern with management(online or off)?

oWas there an online discussion with coworkers?

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Addressing Social MediaMisconduct Concerns

• At a minimum, existing policies address socialmedia concerns (e.g., harassment, references)

• Ideally – adopt a social media policy

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Social Media Policy

• Defines social media (provides examples andflexibility to cover new platforms)

• Identifies limits on useoOutside of work

oOn working time (defined)

oOn employer’s technological resources(cont’d)

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Social Media Policy

• Requires employees to disclose relationship toemployer if employees are permitted to postabout employer’s products/services (referencingFTC Guidelines)

• Prohibits employees from providing references/recommendations of other current/formeremployees (e.g., LinkedIn)

• Clearly states that employees are expected tocomply with other policies (e.g., confidentiality,code of conduct) while using social media

(cont’d)

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Social Media Policy

• Prohibits employees from:oDisparaging customers/competitors

o Engaging in unlawful harassment, bullying, etc.

• Puts employees on notice of employermonitoring

• Addresses consequences of violation

• Includes a savings clause:oNothing in this policy will be interpreted to limit or

interfere with your rights under Section 7 of theNational Labor Relations Act or other applicable laborlaws or regulations

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Training

• At a minimum, supervisors and managers aretrained on:o Appropriate and inappropriate use of employer’s

technological resources

o Limits on employee use of social media

o Protection of concerted, protected activity

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Takeaways

• Exercise extreme caution when disciplining/terminating an employee for social mediaconduct

• Consult with HR/counsel to insure compliancewith applicable law

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Supervisors & Employees“Friending” One Another

• Benefits –o Builds stronger connections

o Stronger team results

• Concerns –o Appearance of favoritism

oWhat the supervisor puts “out there”

oWhat the employee puts “out there”

o Supervisors interacting with subordinates when theyare not thinking like supervisors

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Addressing Concerns Related toSupervisors and NonSupervisorsConnecting on Social Media• Educate supervisory personnel

• Personal/professional dichotomyo Personal – Facebook

o Professional - LinkedIn

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PROTECTING YOUR INVESTMENT IN

SOCIAL MEDIA

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Employee Use of Social Media onEmployer’s Behalf

• Ownership of Employer’s Social Media Accountso An employee may claim an ownership interest in

social media accounts he/she created/maintained onemployer’s behalf

• Social Media Connections/Contactso An employer may have a protectable interest in the

social media contacts an employee develops whileworking for the employer

• To avoid confusion/litigation, be proactive

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Protecting Your Ownership Interest

• Insure you specify control and ownership of social mediaaccounts used in the course of employment by requiring:

o Accounts are established using an employer-emailaddress;

o Accounts identify the employer as the accountholder/subscriber;

oDisclosure of password when established/changed,upon request, and upon transfer fromposition/termination; and

o Employees relinquish all right to access accounts upontransfer/termination

(cont’d)

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Protecting Your Ownership Interest

• Insure that employer’s social media accountshave multiple administrators with ability tochange administrator status

• Retain right of the employer to unilaterallychange password(s) and block access to suchaccounts

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EMPLOYEE USE OF EMPLOYER EMAIL

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State of the LawPre-Purple Communications

• E-mail system is employer’s property, purchasedfor use in operating its business

• Employees have no statutory right to use theiremployer’s e-mail system for Section 7 purposes

• Lawful for employer to prohibit employees fromusing e-mail system for “non-job-relatedsolicitations”

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Current State of the Law

• Employees who are granted access to theiremployer’s e-mail system for work purposes, alsohave a right to also use the e-mail system toengage in Section 7-protected communicationson nonworking timeo Employer may only rebut the presumption by

demonstrating that “special circumstances necessaryto maintain production or discipline” warrant restrictingthis right

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• No specific guidance from Board, other than:

“[W]e anticipate that it will be the rare case wherespecial circumstances justify a total ban on

nonwork email use by employees”

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What Constitutes“Special Circumstances”?

What Does This Ruling Mean?

• Covers “employees with rightful access to theiremployer’s e-mail system in the course of theirwork”

• “Employees” = Workers covered under the NLRAoDoes not include: supervisors, independent contractors,

public-sector workers, and certain other types ofemployees

o Includes “employees” in both non-unionized andunionized work settings

(cont’d)

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What Does This Ruling Mean?

• “With Rightful Access. . .”

oRuling does not require that employers grant e-mailaccess to covered employees who do not alreadyhave such access

• Employers can still monitor their email systems forlegitimate management reasons (e.g., ensuringproductivity and preventing email use for purposes ofharassment or other activities that could give rise toemployer liability)

oHowever, be mindful of surveillance concerns (i.e.unlawful surveillance of employees’ protected activity)

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Takeaways

• Review policies & practices relating to e-mailusageo Eliminate general bans on “non-business use” or

“personal use”

o Address:

−Employer monitoring

−No right-of-privacy

−Limitations on personal use during working time?

o Be mindful of other potential NLRA issues(discriminatory enforcement, other restrictions violatingSection 8(a)(1), duty to bargain, etc.)

(cont’d)

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Takeaways

• Review how policies and procedures have beenapplied

• Review how e-mail usage has been monitoredand whether any changes are warranted

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WAGE & HOUR CONCERNS

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U.S. DOL Considering a Rule onPortable Devices

• This rule will likely address what employersmust do to capture and record time spent byemployees using mobile devices• i.e., is such time compensable?

• Another question: What constitutes de minimis timespent on a mobile device?

• The DOL is likely concerned with employersencroaching on an employee’s personal time offwithout compensation

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Case Study

• Overachiever, an hourly employee, voluntarily checks herwork emails after hours from her personal device.

• Employer’s policy requires supervisor approval forovertime or work from home.

• Her exempt supervisor, Workaholic, frequently sendsOverachiever work-related emails in the evening.

• Overachiever reads these emails, and often responds toWorkaholic.

• Workaholic reads the responses but does not respond.

• Overachiever reports this time on her time sheet.

o Is this time compensable?

41


Preliminary and Postliminary Work

• Employees must be paid for work performedbefore or after their scheduled shift if:o they do so at the request of the employer, or

o they perform work the employer has actual orconstructive knowledge of

42

Addressing Preliminary/Postliminary Work Concerns

• Ensure employeeso accurately record all hours worked – even if

unauthorized

o are paid for all hours worked – even if unauthorized

• If employees routinely perform work before orafter their scheduled shift without requiredauthorization, counsel and if necessary, disciplinethem

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Off-Site/Off-Duty Work

• Off-site/off-duty work is compensable if theemployer requires such or knows of the practiceand allows it to continue, i.e., actual orconstructive knowledge

• De minimis work performed remotely (generallyless than 10 minutes per workweek) may bedisregardedo The de minimis argument, as a practical matter, is

difficult to make successfully to the Department of Laborand should be examined closely

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Takeaways

• Preliminary question:oDo nonexempt employees need employer-issued

mobile devices and/or the ability to remotely accessthe employer network/email?

• If nonexempt employees have employer-issuedmobile devices or can otherwise remotelyaccess employer’s email system/network, theemployer must address off-duty/off-site work

(cont’d)

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Takeaways

• Require nonexempt employees to record orotherwise notify employer of off-site/off-duty workperformed

• Consider:o requiring advanced approval and/or

o imposing limits on the amount of such work that may beperformed

• Whether authorized or not, pay employees for alloff-site/off-duty work performed

• Train supervisors and managers regarding off-site/off-duty work concerns (cont’d)

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Takeaways

• Consider periodically auditing server accessreports to determine if nonexempt employeeswho are accessing the employer’s server areaccurately recording their time

• Counsel and then discipline non-exemptemployees (and supervisors) who violateemployer policies on off-site/off-duty worko Existence of a policy, standing alone, will not control

the analysis – the employer must enforce the policy

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SAVE THE DATE

Workplace 2016

Albany – June 8, 2016

Poughkeepsie – June 14, 2016

Saratoga – June 21, 2016

For Additional Information and to Register,

Visit bsk.com

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facebook.com/john.bagyi

linkedin.com/in/johnbagyi

@johnbagyi

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The information in this presentation is intended asgeneral background information on labor and

employment law. It is not to be considered as legaladvice. Employment law changes often and

information becomes rapidly outdated.

All rights reserved. This presentation may not bereprinted or duplicated in any form, without the

express written authorization ofJohn M. Bagyi, Esq., SPHR, SHRM-SCP

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