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Total Articles: 16

Somebody is Watching (or Listening) -- Workplace Recording

Many workplaces use video monitoring for security or inventory control. Most employees have cell phones with audio or video recording capabilities. Employers and employees often have questions about if or when video or audio recordings can occur. The following are some commonly encountered questions.

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.

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.

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.

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.

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.

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 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.

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).

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.
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