Social Media in the Workplace Presented by: Lily B. Rao Pierce Atw ood LLP ( 2 0 7 ) 7 9 1 -1 1 7 2 lrao@pierceatw ood.com
Social Media Topics in Brief • Recruitment and screening using social media • Monitoring and controlling employees’ social media use • Social media policies • Problematic personal use 28
Potential Legal Concerns • National Labor Relations Act • Fair Credit Reporting Act • Anti-Discrimination Statutes ? (Title VII, ADEA, ADA) • General privacy rights (First Amendment, SCA, FWA) 29
30 Recruitm ent and Screening
Fair Credit Reporting Act • Requires a job applicant or current employee’s consent before the employer hires a third party to run background checks. • Social media searches can be considered part of background checks. If the proper consent is not obtained, the employer could violate the FCRA and be subject to civil penalties. 31
Anti-Discrim ination Statutes • Employers conducting social media searches as part of making employment decisions will normally obtain information about the candidate’s protected characteristics, such as age, race, religion, etc. (profile, photos, group affiliations). • The company can become liable for discrimination based on knowledge of those characteristics. • Also take care not to rely upon limited source of applicants. Varying rates of participation among certain races, ages and nationalities. 32
General Privacy Rights • There may be a common law right to privacy in non-work- related invitation-only social media spaces. • Certain states have laws prohibiting employers from requiring social media usernames and passwords, or from requiring employees to access social media pages in front of employer. 33
Recruitm ent Using Social Media • Make policy decision whether or not to conduct Internet or Social Media searches of candidates. • Establish search protocols and procedures and apply them consistently. • Provide EEO training for those reviewing. • Search only publicly-available information (no “pretexting”) and do not ask for passwords. • Insulate decision maker from impermissible considerations. • Check your facts. • Document reasons for denials. 34
35 Social Media Use at W ork
Social Media Policies and Restriction • 3 1 % of companies track use of social media • 4 3 % block access to social media platforms on company computers and networks • 2 7 % of companies provide social media training to employees who engage in social media activities on behalf of company (i.e., marketing, HR, PR) 36
W hy Em ployees Say They Use Social Media at W ork Source: Pew Research Center (2014) 37
I m pact of Social Media Policy on Office Use Source: Pew Research Center (2014) 38
National Labor Relations Act Section 7 of the NLRA guarantees the right to organize, join, or assist unions, and to engage in “concerted activities” for the purpose of “mutual aid or protection.” Policy prohibiting discussion of wages or terms and conditions of employment on social media is an unfair labor practice in violation of Section 8(a)(1). Employee comments on social media are generally not protected by federal labor law if they are unrelated to group activity among employees. 39
National Labor Relations Act The following employer social media guidelines have been deemed problematic by the NLRB: Do not use language “of a general offensive nature” or be “rude or discourteous” to a client or coworker. Do not make “disparaging or defamatory remarks about company.” Do not make statements that may be considered “objectionable or inflammatory – such as politics or religion.” Do not distribute “libelous, defamatory, scurrilous, abusive, or insulting” literature. 40
General Privacy Rights Employers are permitted to monitor work- related use of electronically generated communications when monitoring serves a legitimate business interest. • See Also: • Stored Communications Act • Federal Wiretap Act 41
Social Media Policy Best Practices Must be reasonable and related to a legitimate business interest. Must not chill Section 7 rights. Must not outweigh employee privacy. Outline when, if at all, it is permissible to use social media at work. Be clear about when and how you will be monitoring employee social media usage. Reference other policies such as Confidentiality, anti-discrimination, and anti-harassment. Consider whether you need a separate policy for use of the company’s official social media. 42
Personal Use Test Cases W hen is it okay to take em ploym ent action based on an em ployee’s personal use of social m edia? 43
Offensive Tw eets Can Em ployee be fired for m aking racist or insensitive posts on personal social m edia page? 44
Hashtag Sickday Em ployee calls in sick, and later posts a photo of herself speeding dow n m oguls at Sugarloaf on her I nstagram page. #sickday #theloaf 45
Electronic Records: Creation, Retention, and Discovery Presented by: Katy Rand Pierce Atwood LLP (207) 791-1267 krand@pierceatwood.com
Working backwards: Discovery Personnel 26 M.R.S. 631: Personnel file includes “any formal or informal employee evaluations and reports relating to File the employee’s character, work habits, compensation Requests and benefits” whether stored in “paper, microfiche or electronic form.” Litigation Discovery of electronically stored information (ESI) often predominates these days, including in employment discrimination cases. Once a claim is reasonably anticipated, the company has an obligation to institute a “litigation hold,” which will prevent the destruction of relevant ESI. 2
Email as an envelope • Email is structured data, with fields for “to,” “from,” “cc,” “subject,” “body.” • Think of email as an envelope. • As with any other piece of mail, it’s generally not the envelope, but what’s inside that matters. 3
The essential problem with email • It’s used to communicate information with only immediate and temporary value: • Off the cuff reactions / remarks, efforts to obtain availability for meetings, etc. • It’s used to communicate information with lasting value, that is probably part of the personnel file and that must or should be retained for various reasons: • Reimbursement requests, personnel related documentation (coaching, warning, evaluation), accommodation requests, etc. 4
Catch 22 • Save everything and • It’s expensive; • It’s unwieldly -- there’s an overwhelming amount of data to sort through to find what you’re looking for or respond to discovery requests; and • The snarky email from supervisor to manager about employee’s intermittent FMLA will live forever. • Delete everything and risk spoliation / inability to defend yourself in litigation. 5
Email retention practices Companies’ policies / practices range, based on industry and company culture: • Emails retained forever (back up tapes or cloud); • Emails automatically deleted after X years; • Emails automatically deleted from sent and delete folders after 90 days. 6
Turn on a dime: preservation • You must quickly stop the routine destruction of electronic records: • When on notice of a claim; • When a key employee departs and you may need access to his/ her emails; • Any time failing to take action will result in the inability to retrieve information you are legally required to preserve or need to be able to access in the future. 7
If you don’t know, find out: • When, if ever, are emails auto-deleted in your organization? • How often are back-ups created and how long are they retained? Are they over- written at some point? • What are the procedures for handling hard- drives and email accounts of departed employees? • How do you go about stopping auto-deletion, preventing a back up tape from being overwritten, etc.? 8
Creating electronic records • Information with ongoing value should be stored outside of email, where possible. • Performance-related communications, evaluations, disciplinary documents, etc. should be prepared on separate documents and saved in personnel file, even if personnel file is electronic. • If the email itself is important, it should be segregated from the mountain of email with transitory value. 9
Outcome determinative emails • “Don’t hire her. She’s bad news. She sued a prior employer and has all kinds of financial problems.” • “Jane Doe is taking ‘intermittent FMLA’ again today!!!!” • “So he’s depressed. Why can’t he take a pill and come to work?” • “The only other job I can offer is on third shift “ 10
All supervisors should be trained • Because email constitutes important evidence in virtually every employment discrimination case. • Don’t use legal terminology ( e.g. concluding employee A “created a hostile work environment” or engaged in harassment). • Don’t speculate or guess about facts. • Beware of hyperbole (and watch punctuation!!!!). • Don’t use email when a walk down the hall or a phone call will do. 11
The Who, What, When, Where and How of Employee Medical Records Presented by: Allan Muir Pierce Atwood LLP (207) 791-1365 amuir@pierceatwood.com
Obtaining Medical Records • HIPAA • FMLA • Accommodations • Workers’ Compensation (HIPAA and WC exceptions) 13
Workers’ Compensation Medical Records • According to HIPAA: A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers' compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault. 45 CFR 164.512(l) 14
Workers’ Compensation Medical Records (cont.) §208. Medical information 1. Certificate of authorization: Authorization from the employee for release of medical information by health care providers to the employer is not required if the information pertains to treatment of an injury or disease that is claimed to be compensable under this Act. 15
Keeping & Storing Medical Records • Limiting access to electronic personnel records. • Segregating and possibly further limiting access to records relating to employees’ disabilities, requests for accommodation, drug tests, etc. • Ability to turn all personnel records into paper records/ reports (so employee can review), or ability to review electronically. • Continue personnel file audits. 16
Keeping & Storing Medical Records (cont.) • Pre-employment medical exams under ADA: 42 USC 12112(d)(3)(B) reads: Employment entrance examination A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if— (A) all entering employees are subjected to such an examination regardless of disability; 17
Keeping & Storing Medical Records (cont.) (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that— (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and (C) the results of such examination are used only in accordance with this subchapter. 18
Keeping & Storing Medical Records (cont.) • A cautionary tale: Blanco v. BIW (2011) • Sharing medical records: HIPAA and business associate agreements 19
The Employer’s Duty to Accommodate Disabilities in the Use of Technology Presented by: Meg LePage Pierce Atwood LLP (207) 791-1382 mlepage@pierceatwood.com
Examples of Technological Accommodations • Vision Impairment • Light-sensing pen with auditory output – Helps receptionist operate telephone console where employee has difficulty visualizing steady and flashing lights. • Floor mat with pressure-activated switch connected to audible signal – Receptionist recognizes presence of visitor • Screen magnification software • Screen reader software 21
Examples of Technological Accommodations • Mobile telepresence robots controlled by telecommuter with the click of a mouse or the touch of a screen • Robots as mobile standalone personal assistants, performing tasks such as retrieving objects or acting as a guide. • Exoskeletal robotic aids and provide laborers with physical assistance on tasks that would otherwise exhaust or even harm unassisted humans. 22
Assistive Technology as Reasonable Accommodation Noll v. I BM, 7 8 7 F.3 rd 8 9 (2 nd Cir. 2015) • Plaintiff Noll, IBM software engineer who is deaf • IBM provided Noll with accommodations including onsite and remote ASL interpreters, communication access rela-time translation (“CART”), internet based real time transcription and video relay services. • IBM corporate internet includes over 46,000 videos, only about 100 videos are captioned. • Noll requested on-screen captioning of certain videos; IBM provided him with transcripts or ASL interpreters instead. • Noll demanded that all videos and all audio files have transcripts at the time they are posted. • Case filed under ADA and New York state law. 23
Close Captioning 24
Assistive Technology as Reasonable Accommodation Noll v. I BM , _ _ F.3 rd _ _ (2 nd Cir. 2015) • Trial court granted summary judgment to IBM, finding no violation • Second Circuit affirmed, finding that the accommodations IBM offered were effective, even if not ideal or the accommodation preferred by Noll. • Second Circuit also held that “the ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable.” 25
Technology and Telecommuting as Reasonable Accommodation EEOC v. Ford Motor Company, (6 th Cir. 2015) • Plaintiff Jane Harris was a resale buyer of steel with irritable bowel syndrome • Sought job working from home on as-needed basis, up to 4 days a week. • Ford denied request, deeming regular and predictable on- site attendance essential to Harris’ “highly interactive job.” • Ford offered to move her closer to restroom or to look for jobs that better suited telecommuting. • Accommodations rejected and Harris filed charge of discrimination. • Harris eventually terminated for subpar performance and high absences. • EEOC sued, claiming failure to accommodate and retaliation for filing a charge. 26
Technology and Telecommuting as Reasonable Accommodation EEOC v. Ford Motor Company, 782 F.3 rd 753 (6 th Cir. 2015) “Regular, in person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” “Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. . . Technology has not changed so as to make regular in-person attendance marginal for this job.” 27
Kvorjak v. Maine, 259 F.3 rd 48 (1 st Cir. 2001) • Kvorjak was a ME DOL unemployment claims adjuster with spina bifida, which limited ability to work, causing problems with bowels and bladder, and at times triggering pain. • His local office closed, Kvorjak transferred to Bangor; commute expanded from 10 minutes to 90 minutes. Requested ability to telecommute • Appellate court held telecommuting was not reasonable accommodation because employee’s functions as educator, trainer and advisor could not be accomplished effectively at home. 28
Digital On-boarding and IRCA/ I-9 Compliance: Balancing Risk and Efficiency Presented by: Tony Derosby Pierce Atwood LLP (207) 791-1343 aderosby@pierceatwood.com
Digital generation and retention of Form I-9 Employers may use software or third-party platforms to generate and retain Form I-9s, provided: The resulting form is legible; There is no change in the name, content or sequence of the data elements and instructions; No additional data elements or language is inserted; and All standards specified in the regulations are met. 30
I-9 electronic generation and storage requirements Employers may use paper, digital, or a combination of paper and digital generation or storage systems, provided the system includes: Reasonable controls to ensure integrity, accuracy and reliability; Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of Form I-9s; An inspection and quality assurance program that regularly evaluates the system and includes periodic checks of digitally stored I-9s; An indexing system that allows identification and retrieval; and The ability to reproduce legible and readable paper copies. 31
Changing systems or vendors An employer may use one or more digital generation or storage systems, provided all I-9s remain fully accessible and compliant with the rules. An employer may change digital generation or storage systems as long as each system continues to meet all performance requirements. For each digital generation or storage system, the employer must maintain and make available upon request complete descriptions of the system and procedures relating to use, as well as an indexing system that allows retrieval of relevant documents. 32
E-signatures If an employer allows employees to complete Form I-9s using a digital signature, the system must allow signatories to acknowledge that they read the Form I-9 attestation and attach the e-signature to the form I-9. In addition, the e-signature system must: Attach the e-signature at the time of the transaction; Create and preserve a record of the identity of the person producing the signature; and Upon employee request, provide a printed confirmation of the transaction. The employer representative or agent using an e-signature to complete Section 2 must attest to inspection of original documents. 33
Security Employers retaining I-9s digitally must implement an effective records security program that Ensures only authorized personnel have access to the records; Provides for back-up and recovery to protect against information loss; Ensures that employees are trained to minimize risk of unauthorized or accidental erasure or alteration; and Ensures that the system creates a secure and permanent record that establishes date of access, identity, and particular action whenever an individual creates, completes, updates, modifies, alters or corrects a digital record. 34
Responsibilities of employers using E- verify on-boarding applications Upgrade software for each new update or new version of E- verify. Update the employer’s E-verify profile within 30 days of the award date for any new federal contract with a FAR clause. Notify DHS immediately if any breach of personal information occurs. Complete the Form I-9 before creating the E-verify case. Comply with all DHS information security requirements, including periodic risk assessments, subordinate plans, security awareness training, periodic testing, corrective processes, COOPs, and appropriate user rules. Notify DHS immediately if a breach of personal information occurs. 35
The Aging Workforce and the Digital Divide Presented by: Jim Erwin Pierce Atwood LLP (207) 791-1237 jerwin@pierceatwood.com
Maine Demographics (2010) 120000 100000 80000 60000 40000 20000 0 <5 5 ‐ 9 10 ‐ 14 15 ‐ 19 20 ‐ 24 25 ‐ 29 30 ‐ 34 35 ‐ 39 40 ‐ 44 45 ‐ 49 50 ‐ 54 55 ‐ 59 60 ‐ 64 65 ‐ 69 70 ‐ 74 75 ‐ 79 80 ‐ 84 >84 Age Cohort Source: US Census 37
Maine’s population: ≥ 45 +122,600 <45 -69,100 from 2000 to 2010 250,000 200,000 150,000 100,000 Δ 2000 ‐ 10 2010 50,000 0 <15 15 ‐ 24 25 ‐ 34 35 ‐ 44 45 ‐ 54 55 ‐ 64 65+ ‐ 50,000 ‐ 100,000 Source: MDOL 38
Maine’s labor force: ≥ 45 +94,000 <45 -59,000 from 2000 to 2012 200,000 150,000 100,000 Δ 2000 ‐ 12 50,000 2012 0 16 ‐ 19 20 ‐ 24 25 ‐ 34 35 ‐ 44 45 ‐ 54 55 ‐ 64 65+ ‐ 50,000 ‐ 100,000 Source: MDOL 39
Size of Maine’s Workforce is Declining Source: MDOL 40
Workforce Participation is also shrinking Labor Force Participation Rate 2000 ‐ 2012 70.00% 69.00% 68.00% 67.00% 66.00% 65.00% 64.00% 63.00% 62.00% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 41
Workforce Participation Continues to Decline Source: MDOL 42
Hiring to Replace is Exceeding Hiring to Grow By Almost 6:1 Source: MDOL 43
2013 MDOL study: But, labor participation rate by older workers has increased 1995-2011 Change in Maine older worker workforce attachment 50% 40% 30% 20% 10% 0% 1995 1999 2003 2007 2011 44
2013 MDOL study: • Aging population • Aging workforce • Shrinking labor participation rate • Almost half of private sector workers > 44 • Many job openings through 2020 45
Possible Reasons for Older Worker Workforce Participation • Seniority • Flexibility through lower wage and part- time jobs • Insufficient retirement savings • Improved health/ life expectancy 46
Consequences Shrinking Shrinking Increasing workforce labor force labor force + + participation ≥ 45 + <45 <55 Unchanging Growing percent of = workforce workforce that is + participation ≥ 55 older 47
What about Millennials? 48
The Other Side of the Divide 49
But not in Maine: Population Cohorts 2014-2024 Source: John Dorrer 50
Conclusion Both replacement and growth of your workforce will depend on increased participation by older workers • Delay workforce replacement by keeping the workers you have • Add to workforce by attracting new older workers 51
How will you manage a workforce that’s distributed like this: 52
And looks like this: 53
What does this have to do with technology? 54
Information Technology Is not just a matter of degree between Boomers and Millennials It’s a matter of how they see and interact with the world 55
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