Bringing Technology to Work: Dealing with Employees Own Devices

Transcription

1 RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS Bringing Technology to Work: Dealing with Employees Own Devices Presented by: Richard C. Rybicki RYBICKI & ASSOCIATES P.C Tel: (707) (Santa Rosa) (707) (Napa) 131-A STONY CIRCLE, SUITE 500 SANTA ROSA, CA TEL (707) FAX (707) COOMBS STREET NAPA, CALIFORNIA TEL (707) FAX (707)

2 RICHARD C. RYBICKI Richard Rybicki advises employers on all aspects of labor and employment law, representing management in courts and agencies throughout the United States. He also practices under state and federal labor relations laws, advising employers in collective bargaining, arbitration, and proceedings before the National Labor Relations Board, the California Agricultural Labor Relations Board, and the California Public Employment Relations Board. Mr. Rybicki speaks and writes frequently on wrongful discharge, employment discrimination, union/management relations, and other labor and employment-law issues. He is a contributing editor for The Developing Labor Law, the most widely recognized national labor-management publication. Mr. Rybicki is chair of the Napa Bar Association Labor and Employment Law Section, past chair of the Sonoma County Bar Association Labor and Employment Law Section, a member of the Napa Chamber of Commerce Board of Directors, advisor to the NVC Hospitality & Tourism Management Program, and adjunct faculty at Napa Valley College and the Culinary Institute of America Greystone. Mr. Rybicki received his undergraduate education at the University of California, Los Angeles, and his law degree from Cornell University. He is admitted to practice in California and before various federal District Courts, Courts of Appeal and the United States Supreme Court.

3 RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS NAPA SANTA ROSA Dealing with Employees Own Devices Page 1

4 PASCO Employment Law Conference October 22, 1998 What Were the Issues Then? The Electronic Workplace: Policies and Practices To Avoid Liability Employers have become (sometimes painfully) aware of the issues of privacy, harassment and ergonomics in the electronic workplace. This session will focus on the primary sources of potential liability that face employers and provide practical guidance to minimize risk. What Were the Issues Then? General Risks Monitoring (Privacy) Misuse of Technological Resources Evidence in Litigation Telecommuting Wages Safety Ergonomics Harassment Security Cyber Policies Page 2

5 Then: Changes in Technology Now: Pagers Smartphones iphones Cell Phones with Text Palm Pilots Blackberries Syncing with PCs Tablets Ultrabooks Wireless Internet & 4G/LTE Then: Changes in Technology Now: AOL CompuServ BBS Bulletin Boards POP Portable Hard Drives Google etc. Social Media Hosted Exchange Cloud Computing & Storage Page 3

6 Recent War Stories Facebooking on Personal Devices Deletion of Social Media linked to employee Accessing work information while off duty Use of multiple personal devices to access work data Productivity Loss Business Week reports employees lose 28% of working time to interruptions (6/23/2008) 2.4 hours per day lost to interruptions Texting, Notification Center, e mail, FaceBook, etc. Page 4

7 Trade Secrets Employers want to protect trade secrets. Also protect confidential information. But trade secrets are limited in California. Trade Secrets Uniform Trade Secrets Act Law adopted by California Defines trade secrets Protects and sets damages for misuse Trade Secrets Trade secret is any information, process, etc. Not publicly known or available That is valuable because it is not known That would lose its value if publicly known. Page 5

8 Trade Secrets Employer must take reasonable steps to protect the confidentiality of the information. Failure to take reasonable steps results in loss of trade secret status! Failure to secure information on personal devices might lead to complete loss of trade secret protection. War Story Employer records deal information on forms Forms available to employees on personal devices No policy regulating employees use of information Employees leave company, do not return data Another employee uses lack of security to defeat trade secret claim! Trade Secrets to Consider Customer contact information business cards case Pricing and financial data Estimates and bids E mail and electronic communication Software and custom programs or coding Artwork, designs Planning and meeting notes Page 6

9 Security Even with acceptable policies, personal devices present security risks. General access by friends, family, colleagues, other employees planning to leave Loss or theft of device Hacking and unauthorized access War Story THE LAPTOP STORY Not a unique story: employee uses laptop to store data Personal laptop is stolen from car Laptop has name, address, SSN of over 2000 employee plus their benefit plan dependents Page 7

10 Compliance THE LAPTOP STORY has more consequences: HIPPA compliance good HIPPA policy must address personal devise use Confidentiality of Medical Information Act California CMIA requires confidentiality Credit and Personal Information laws: required disclosure to consumers in dozens of states. Compliance Many laws require policies that limit disclosure: Securities SOX Banking Healthcare Credit Failure to address personal device use may be an automatic violation of these laws! Copyright and IP Violations Unlicensed software Not for commercial use software Books, guides, training materials Music and video downloads Use of unlicensed graphics and images Use for business of any resources owned by someone else. Page 8

11 Privacy Issues Many devices can be used to record images and conversations Unauthorized voice recording is criminal in California Unauthorized photos and videos could violate California privacy rights Employees may be intrusive or inappropriate Privacy Issues Insisting on access to employee device e.g., during investigation could violate state law privacy rights Insisting on access to an employee s social media account is now illegal in California Monitoring employee communications may violate federal labor laws even in non union workplaces Page 9

12 Privacy Issues Employee review of personal communications may lead to disclosure of information the employer would rather not have: Medical and disability conditions Personal lifestyle preferences Association with protected groups Other private information Hostile Environment Employees may claim that they were exposed to harassing materials in the environment Photos, videos, jokes, outtakes Inappropriate personal conversations Music and ringtones (common) with offensive lyrics Page 10

13 Personal Harassment Texting, ing, contact with others at work Monitoring others calls or use Gags: hiding, hacking, goofing off with others materials War Story Two employees work in the same facility, have a child, contested custody, etc. Each is known for taunting the other One employee posts disparaging comments about the other employee on social media site during work, shows immediately on many employees devices, complaint to HR the same day War Story From Several Cases Employees have close relationship, tend to text one another regularly One employee decides the other is harassing him/her, starts saving texts Texts used as evidence in subsequent lawsuit Page 11

14 Modern E Discovery Courts allow parties to search and obtain copies of an all relevant electronic information whether employer s or employees State and federal courts often require employers to take steps to avoid loss of this data once claim is made Failure to preserve the information may result in presumption that bad evidence existed or sanctions Page 12

15 Time Worked Employee use of personal electronics may result in unpaid working time Creative attorneys can use time on electronic devices to find many potential wage issues. Time Worked Unreported time time spent speaking, texting or ing with management Controlled time Do employees have to respond so quickly or frequently that their time could be on call Relieved of all duties are hourly employees expected to respond during meal breaks Time Worked Checking voice and while off work to report some time each day? Over reporting time spent on calls and work while offsite? Using voice or to create an appearance of being on duty? Page 13

16 Reimbursement California law requires reimbursement of all reasonably necessary expenditures or losses Courts examine the facts of each case to determine whether the amount of reimbursement is sufficient Issues: cost of device, cost of service, loss or damage, depreciation Employer must actually cover costs, loss or damage! Ownership Issues Is the employer liable for misuse of the device? Distracted driving while using the device? Harassment of others through the device? Page 14

17 Ownership Issues Does the employer own information created for work even on an employee s own accounts? Employee created social media, Twitter accounts, etc. Communications with friends, colleagues who are also clients or vendors Ownership Issues Items placed on device during employment: Apps (at $0.99 a pop) Software Web access licenses Return of Device Obtaining information off employee devices may be impossible upon departure Reconstructing information off employer issued phone may be impossible Page 15

18 Advantages of Employer Owned Employer can have a policy advising employee that it can access all information on its devices Courts have allowed access to text history Courts have disallowed privilege where employee writes attorney from company resources Beware: NLRB still limits some monitoring Ergonomics Issues Few specific standards applicable (except for wiring) Some states have adopted computer ergonomics requirements California does require Injury and Illness Prevention Programs that identify hazards in advance Page 16

19 Ergonomics Issues Employers should identify hazards in the workplace Consider potential hazards for employees when telecommuting home workstations could lead to common RMI issues Consider hazards of mobile devices (headsets, etc.) Watch for new state and federal standards Decide on Ownership What type of devices will the employer support? Only owned devices? Retains complete control. Shared management? Employee grants some access to a personal device used for work. Employee management? With guidelines set by policy. Page 17

20 Other Policy Terms Use of devices on company time: Types of activity allowed during working time calls, texts, social media, emergency communications Prohibited activity use while driving, use of unlicensed or unlawful software, connection to unsecure networks Other Policy Terms Treatment of company information: Security of company contacts, documents, other information Return of information upon termination Continuing duty to preserve trade secrets Other Policy Terms Harassment and EEO issues: Prohibition of harassment with or through device Prohibition of accessing, storing or displaying offensive images or other communications Sensitivity toward images, videos, stories, etc. Page 18

21 Other Policy Terms Prohibit camera and audio video recorder use on company property without advanced approval Other Policy Terms Specific compliance issues: Protection of specific types of information applicable to industry Address compliance requirements for industry Other Policy Terms Require installation of anti virus or security software Require Mobile Device Management software that: Keeps employer information in specific areas Allows access by employer (potential privacy issues) Remote modification of network settings, software, information, and perhaps wipe function Page 19

22 Other Policy Terms Etiquette: Use of device during company meetings, functions Maintenance of company image, standards Other Policy Terms Personal devices not used for work (phones, MP3): Employer not liable for loss or damage to personal devices Prohibition against connection of unauthorized personal devices. Other Policy Terms Nonexempt employees: Prohibit use of devices outside of normal work schedule without management approval. Prohibit use of devices during unpaid leaves of absence Page 20

23 Common Issues re Devices Reimbursement issues: employer may not be allowed to limit its liability to employee for: Damage to device or device software caused by work activity Loss or damage to devices in the course of work duties Reimbursement of all actual costs of use (see above) Accidents, tickets, damage caused by ordinary negligence RYBICKI & ASSOCIATES P.C. LABOR AND EMPLOYMENT ATTORNEYS NAPA SANTA ROSA Richard C. Rybicki 131 A Stony Circle, Suite 500 Santa Rosa, CA (707) Coombs Street Napa, CA (707) Page 21