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Total Articles: 36

Company Offers Employees Implanted Microchips

In August 2017, Wisconsin technology company, 3 Square Market, may have been the first U.S. company to offer employees the ability to have radio frequency identification device (“RFID”) chips implanted under their skin. The chips, the size of a grain of rice, are injected between the employee’s thumb and index finger. After that, employees can swipe their hands over chip readers to get into the office building, purchase food in the cafeteria and potentially log onto computer and other systems. For now, the chips are voluntary, and numerous employees have signed up to have them implanted.

Tenth Circuit Upholds Discharge of Employee in Safety-Sensitive Position Who Tested Positive for Cocaine

On February 6, 2017, the Tenth Circuit Court of Appeals ruled that Wyandotte County, Kansas, did not violate the U.S. Constitution by discharging an employee in a safety-sensitive position after he tested positive for cocaine in a random drug test. The court found that the random drug test was not an unreasonable search because the plaintiff’s interaction with children outweighed his individual privacy interest. It also found that the county’s drug testing and human resources policies did not create a protected property interest in continued employment or an implied contract. Washington v. Unified Government of Wyandotte County, Kansas, No. 15-3181.

A New Kind of Employee Badge – Monitoring, Analytics and More

It is not uncommon for employers to assign badges to their employees to grant access to certain locations on the employer’s property and parking garages. Many employees have them, use them, lose them and think little of them.

Snapchat Spectacles - The Newest Threat To Data Security And Privacy In The Workplace

Last Friday, Snapchat (which recently changed its name to Snap, Inc.) announced the coming release of its newest product: “Spectacles” - brightly colored, fun-looking sunglasses with a built-in camera that records videos in 10-second increments (which can be combined to form a video of up to 30-seconds in length) with the touch of a button. The videos can be stored in the sunglasses until a later time or uploaded to the user’s phone for immediate sharing with friends.

Should We Train Our Employees About Good Data Privacy and Security Practices?

Yes! It is the law in more places and circumstances than you suspect.

The Inexplicit Requirement and Definitive Necessity for Employers to Implement Privacy Policies

In the face of seemingly daily news reports of company data breaches and the mounting legislative concern and efforts on both the state and federal level to enact laws safeguarding personal information maintained by companies, employers should be questioning whether they should implement privacy policies to address the protection of personal information they maintain on their employees.

Can Healthcare Providers Prohibit Employees From Using Recording Devices in the Workplace?

In the wake of the National Labor Relations Board’s (NLRB) decision in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), hospitals and healthcare providers will need to revisit their employee recording policies. This NLRB decision found that an employer may not adopt a work rule that prohibits employees from recording company meetings or conversations with coworkers without a valid legal or business justification. The NLRB reasoned that work rules banning recording tend to chill or restrain workers from engaging in or memorializing concerted, protected activity under federal law. Thus, policies that prohibit recording in the workplace would be considered a per se violation by the NLRB unless crafted thoughtfully and in a way that meets the NLRB’s business justification exception—a concept that is as of yet undefined but likely includes conflicts with other laws, including state laws that impose restrictions on recording (e.g., dual consent states) and other federal laws.

EU Privacy Regulators: Newly Announced "Privacy Shield" Not A Safe Harbor Yet

In response to the February 2, 2016, announcement by the European Commission (the "Commission") and the U.S. Commerce Department of a new framework, called the "Privacy Shield," to replace the invalidated U.S.-European Union ("EU") Safe Harbor Framework for cross-border data transfers,1 the EU's top data protection regulatory body, the Article 29 Working Party (the "Working Party"), issued a statement expressing reservations and providing limited guidance for U.S. multinational employers. The Working Party's Statement, issued on February 3, 2016, demonstrates that the regulatory environment surrounding transfers of personal data between the U.S. and the EU remains fraught with uncertainty and risk.

Attempt to Unmask Online Reviewer Denied

You’ve spent extensive time and effort, not to mention money, establishing your company’s reputation only to have the company defamed or disparaged anonymously online. This is a scenario which many organizations face in today’s virtual marketplace. As a recent decision by the Delaware Superior Court illustrates, dealing with these types of issues is often difficult and complicated, especially from a legal perspective.

Prohibiting Recording Devices – The Dreaded “Maybe”

Can we prohibit employees from making audio recordings at work? As advancements in technology continue to increase, and it becomes easier and easier for employees to surreptitiously record conversations, this inquiry is posed by many employers. In fact, we discussed this very question back in 2013. Unfortunately, the answer to this question is perhaps the most often used attorney response – “Maybe.” This is especially true given the recent decision from the National Labor Relation Board (NLRB) in Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago. For employers, or those looking to prohibit the use of recording devices, the NLRB’s decision, issued on December 24, 2015, is more akin to coal than an early Christmas present.

Leading Cause of Data Breaches – Employee Error, ACC Survey Concludes

When people think about data breaches, they tend think more about the illegal hacking into computer networks by individuals, criminal enterprises or even nation states, than they do about simple employee error. This makes some sense as hacking incidents seem to be more interesting and draw more media attention. Holding this belief, however, can cause many to underestimate the risk of a breach due to the assumption they are not likely to be the target of a hack, and miss altogether the risk of employee error. A recent report by the Wall Street Journal about a survey by the Association for Corporate Counsel may change this.

FCC Data Security Enforcement Continues

Demonstrating its continued commitment to data security enforcement, the Federal Communications Commission (FCC) recently announced Cox Communications Inc., the nation’s third largest cable operator, agreed to pay $595,000 to resolve an investigation into whether the company failed to properly protect its customers’ personal information. The agreement ends the first data security enforcement action brought by the FCC against a cable operator.

We've Got Our Eyes On You: Monitoring Devices In Vehicles

While employers with a fixed worksite can observe and interact directly with their employees to promote safety and reduce risk, employers with workers who operate motor vehicles as part of their job have fewer options.

Wearables, Wellness and Privacy

Bloomberg BNA (subscription) recently reported that this fall the Center for Democracy & Technology (CDT) will be issuing a report on Fitbit Inc.’s privacy practices. Avid runners, walkers or those up on the latest gadgets likely know about Fitbit, and its line of wearable fitness devices.

The Hololens From Microsoft – Help Can Be Right Under...Over Your Nose

The saying – never let them see you sweat – soon may be more difficult to accomplish with Microsoft’s Hololens. Like Google Glass, the Hololens is worn as a headset. But this device has a “plurality” of sensors that gather a range of biometrics parameters (heart rate, perspiration, etc.) which determine along with other information if the wearer needs help with something, and then tries to provide that help. Referred to in Microsoft’s patent application approved earlier this year as an “augmented reality help system,” the device’s applications and implications can be far reaching, as it is not hard to see, for example, why companies might want to adopt this technology to benefit their business.

Looking Over Your Employees' Shoulders

As shifting privacy lines allow employers to reach further and further into employee conduct, it’s increasingly important that you know the legal limits. Many employees will question the legality of increased employer monitoring of offsite conduct, especially when employees are off-duty.

eLABORate: "Sign of the Beast" Hand Scanning Case Provides Valuable Lesson to Employers

An employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act (“FLSA”) has resulted in a large dollar jury verdict in a religious discrimination case, as well as continued scrutiny from the Equal Employment Opportunity Commission (“EEOC”). [EEOC v. Consol Energy, Inc., N.D. W.Va.] The case should serve as a valuable lesson to employers when it comes to providing for reasonable accommodation of religious practices, as required under Title VII of the Civil Rights Act of 1964.

Monitoring Employees: How Far Can You Go?

As shifting privacy lines allow employers to reach further and further into employee conduct, it’s increasingly important that you know the legal limits. Many employees will question the legality of increased employer monitoring of offsite conduct, especially when employees are off-duty.

Lawfully Monitor Employees Using GPS

Employers have monitored employees in the workplace daily for years, tracking the number of hours employees work and their use of the company’s electronic systems, including the Internet.

Can A GPS Result In TMI?

The answer is “yes” – tracking employees by using Global Positioning Systems (GPS) can give an employer too much information (TMI). Surreptitious Surveillance

Should You Install Security Cameras In Company Bathrooms? (Hint: NO)

Sometimes an employment lawyer is faced with a thorny question that involves multiple layers of analysis. Before advising a client, any good attorney will want to examine prior case decisions, statutory citations, regulatory guidance, and other resources to ensure a full understanding of the issue at play. Then, in developing the advice, that attorney will probably ponder the question, consider all possible outcomes, weigh the possibilities, and then provide the recommendation only after painful and precise deliberation.

Monitoring Employees in the Modern Workplace: Can a GPS Result in TMI?

The answer is “yes” – tracking employees by using Global Positioning Systems can give an employer Too Much Information.

Employers With International Operations Must Take Care to Protect Employee Data

When is the last time your company reviewed its data protection policies? If your company employs any international employees, it may have obligations under foreign laws to have specific safeguards in place. Failure to observe a jurisdiction’s data protection laws can result in staff penalties and unwelcome press coverage. Although the European Union is leading the way with a proposed comprehensive new data protection law, other countries from China to the United Kingdom, South Africa, Qatar, Dubai, and several Latin American countries are developing, or have already enacted, their own data protection laws, with many based on the European model.

Psssst! Workplace Gossip Can Kill

A new study shows the destructive effects gossip can have on a workplace

Peyton Manning Ate Here! Managing Privacy Concerns In A Modern Workplace

Privacy can be an elusive goal. In today's world, the Internet allows us an almost unlimited access to information. Yet, the more information that becomes available, the more the insatiable desire grows for still more detail on a moment's notice. Unless your name ends in "ardashian," however, you likely still crave some semblance of privacy. The crossroad between these competing two forces can create issues for employers in today's society.

Protecting Trade Secrets Through Employee Surveillance: Risky Business

The difference between having a trade secret and not can come down to the steps that a company takes to protect its secrets. The Uniform Trade Secrets Act, a version of which has been adopted in 46 states, provides that information qualifies for trade secret protection only if the owner takes steps that are reasonable under the circumstances to protect its secrecy. Employers commonly take the obvious steps to protect their trade secrets – for example, requiring employees to sign confidentiality agreements or restrictive covenants, implementing electronic controls; and let’s not forget sending demand letters and threatening litigation. These steps are obvious and therefore widely observed. But what about proactive monitoring? If you have a trade secret, you ought to keep an eye and ear out to make sure it’s not being used or disclosed. But, be careful; doing so is not without its risks.

Supreme Court Spotlights Retaliation, Privacy

Can the federal government require contract employees to disclose their use of illegal drugs? Can states sanction employers that knowingly hire unauthorized aliens? Can employers be held liable for the discriminatory actions of managers who don't make ultimate employment decisions? The U.S. Supreme Court will decide these and other issues in its new term, which began on October 3.

In Wake Of Court Ruling On Privacy Issue, All Employers Need Employee Tech Policies

In mid-June, for the first time, the U.S. Supreme Court considered whether an employer was within its rights to search employee text messages. The court decided unanimously that the search was reasonable. Although the case focused on a government employer, the decision clearly has ramifications for private businesses as well.

Supreme Court Recognizes Right Of Public Employers To Search Electronic Communications.

On June 17, 2010 the U. S. Supreme Court unanimously held that a public employer's search of an employee's text messages was reasonable and did not violate the employee's constitutional rights. The decision overturned a ruling by the United States Court of Appeals for the 9th Circuit, which found the employer's search was unreasonable in scope and, therefore, violated the Fourth Amendment of the Constitution which prohibits unreasonable searches and seizures.

In “Sexting” Case, Supreme Court Unanimously Supports Employer’s Search of Employee’s Text Messages, But Refuses to Announce a Rule For All.

The Supreme Court issued a unanimous decision in City of Ontario v. Quon—the first Supreme Court case directly addressing public employees’ privacy rights with respect to communications via employer-issued communications devices such as pagers, cell phones and smart phones. In the 9-0 decision (with two concurring opinions), the Court held that a California city’s review of two months’ worth of text messages on a police officer’s city-issued pager was reasonable where the city was concerned that, among other things, it might be paying for employees’ personal use of those pagers. Notably, the Court took pains to limit its holding to the particular facts of the case, making clear that it wished to avoid defining the contours of employee privacy rights on new technology before the role of the technology in the workplace and society become clear.

Supreme Court rules that review of public employee's text messages was not a Constitutional violation.

The U.S. Supreme Court has held that a city police department's search of an employee/police officer’s text messages was reasonable, and did not violate the individual’s Fourth Amendment (“search and seizure”) rights. City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010). While employers have been anticipating the high court’s opinion on whether employees have a reasonable expectation of privacy related to electronic messages, the Supreme Court did not tackle that issue. Instead, the Court assumed that the officer did have a reasonable expectation of privacy in his personal text messages. However, the Court also found that the search was motivated by a legitimate work-related purpose, and was not excessive in scope. Based upon those factors, the Court held that the city's review of the officer's text messages was reasonable and did not violate the employee’s Constitutional Rights. City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010).

The Fig Leaf Precedent Set by Stengart v. Loving Care Agency, Inc.

On March 30, 2010, the New Jersey Supreme Court affirmed the intermediate appellate court's decision in Stengart v. Loving Care Agency, Inc., a widely followed workplace privacy case with national implications. In a unanimous opinion, the Supreme Court held that an employee had a reasonable expectation of privacy in her e-mail communications exchanged with her personal attorney through her web-based, password-protected Yahoo! e-mail account using her employer's computer.

2010 Is Not 1984: Stengart v. Loving Care Agency, Inc. and Cyber Privacy in the Workplace.

"There was of course no way of knowing whether you were being watched at any given moment," explained Winston Smith, the protagonist of George Orwell's masterpiece, 1984. Smith and his fellow employees worked and lived under the assumption that every sound they made was overheard, every utterance recorded, and every movement scrutinized by their employer, a government agency. As an ever-increasing number of employers provide their employees with work-issued computers and Internet access, life appears to be imitating art.

Off-Duty Discussion Groups Can Be Off-Limits to Employers.

There is an inherent tension between an employee's right to privacy and an employer's right to monitor an employee's conduct – especially where the employer believes that the conduct may harm its business or otherwise subject it to liability. This tension has only grown with the rapid expansion of social media and the larger audience with which an employee may share his grievances.

Workplace Privacy: Not Just a Problem for Erin Andrews.

With the disclosure of personal information now rampant on social networking sites like Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don't be fooled: privacy is a hot legal topic with serious implications for employers.

Schools May Be Required to Comply with FTC Rules Aimed at Preventing Identity Theft

Last year the Federal Trade Commission (“FTC”) issued rules aimed at preventing and combating identity fraud (the “Red Flag Rules” or the “Rules”). The Red Flag Rules require “financial institutions” and “creditors” that hold “covered accounts” to develop and implement an identity theft prevention program for new and existing accounts. The FTC has broadly interpreted the terms “creditors” and “covered accounts” to impose compliance on many institutions that are not engaged in extending credit and financing in the traditional sense. Mandatory compliance with the Rules began on Nov. 1, 2008; although the FTC announced that it will delay enforcing them until May 1, 2009, to give creditors and financial institutions additional time to comply with the Rules. In this Alert, we explain why the Red Flag Rules may be applicable to your school.