Employee Use of Mobile Devices: Legal Threats for Employers. 9/13/2011

1. EMPLOYEE USE OF MOBILE ELECTRONIC
DEVICES:
LEGAL THREATS FOR EMPLOYERS
September 13, 2011
Margaret A. Keane, Co-Chair, Employment Dispute Resolution
Practice
1-415-951-1137
mkeane@dl.com
Dewey & LeBoeuf LLP
dl.com

2. Managing Change in the Workplace:
Some of Today’s Challenges
• Lack of clear precedent: courts and legislators lag behind while
regulators blaze the trail
• Social networking: lines between work and life continue to blur
• New communication channels: instant messaging as corporate tool
and texting is not just for teens
• Electronic discovery: the document that would not die
• Workplace privacy: does it exist?
• Anywhere, anytime access: challenges of mobile computing
• The 24/7 workplace and the FLSA
• Control is a remnant of days gone by
• Generational differences affect communication styles
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3. Social Media Policies 1.5
● 85% of financial services professionals under 50 are using social
media. Ledermark survey, April 2010
● 75% of employers are using some form of social media to promote their
business. Proskauer International Labor and Employment Group
Survey, July 2011
● 45% don’t have a social media policy
● 31% completely prohibit employees from visiting social networking sites
while at work. Robert Half Technology survey, May 2011
(Source: AMA, 2005)
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4. Online Social Networks
● Facebook is approaching 700 million
users
● Approximately 67 million users per day
access Facebook through Android and
iPhone apps.
● Linked in – 120 million plus members
● Don’t think your employees are out there?
Think again. Type your company’s name
into the search engine of any social
networking site.
(Source: thenextweb.com/facebook/ 2011/094/23/the-number-
growth-and-evolution-of-the-behemoth-that-is-facebook/)
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5. Are You at Work?
Mobile Technology Blurs the Line Between Home and Work
• By one estimate, 72% of Americans check their email on weekends and
vacations and 42% check email while home sick. Source:
www.kikabink.com/news/most-workers-addicted-to-email-2-out-of-3-u-s-and-u-k-workers-check-mail-
outside-business-hours/ (citing Harris Interactive research)
• iPass Mobile Employee Definition: Employee using a mobile device who
accesses networks (other than corporate LAN or WLAN) for work purposes
• Average mobile worker works 240 hours per year longer than work force in
general
• 43% of mobile workers keep smart phone at arm’s reach when they sleep
• 96% of mobile workers under 45 have smart phones
• 35% of mobile workers check email first thing upon awakening
Source: The iPass Global Mobile Workforce Report, August 2011
www.mobile-workforce-project.ipass.com/cpwp/wp-content/files_mf/ipass_mobileworkforcereport-
q-3_2011.pdf
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6. Yours, mine and ours: A new world of sharing
Do you use your tablet primarily as a personal or work device?
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7. Yours, mine and ours: A new world of sharing (Cont’d)
How do you use your smartphone?
Source: The iPass Global Mobile Workforce Report, http://mobile-workforce-
project.ipass.com/cpwp/wp-content/files_mf/ipass_mobileworkforcereport_q3_2011.pdf
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8. Living Together:
The Ongoing Employment Relationship
● Decide whether or not to monitor - virtually all employers retain the right
to monitor and address personal use of the employer’s system
● Put your policies on personal use and privacy rights into clear and
unequivocal language and communicate it to your employees
(Ex. You have no expectation of privacy in connection …)
● If employees can access the employer’s system remotely, consider
requiring employees to provide access to remote devices used to
access system
● Develop policy on use of personal devices in the workplace
● FOLLOW YOUR POLICY CONSISTENTLY
● Revise policy as technology evolves
● Don’t make decisions based on protected class status – try to keep
information away from decision makers
● Document your searches and findings
● Don’t make employment decisions turn on trivial matters
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9. I Owe You What?!
Mobile Devices and Wage and Hour Obligations
● The average professional spends
50 minutes a day sending e-mails after
work
(Source: Cohesive Knowledge Solutions, 2008)
● Companies need to manage risk by:
– Updating policies and handbooks
related to use of personal devices
– Don’t give mobile devices to non-
exempt employees
– Implement policies that restrict non-
exempt workers use of company- FAD Media, Inc.
issued devices
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10. Breaking Up is Hard to Do:
From Dooce to the NLRB
● Dooced: Termination based on a blog posting; see www.dooce.com
(blog of woman who was fired after writing about employer on blog)
● NLRB v. American Medical Response Company, Case No. 34-CA-12576
(Connecticut, 2011). Employee was terminated for criticizing her
supervisor on Facebook in violation of company policy prohibiting
employees from “making disparaging, discriminating or defamatory
comments when discussing the Company or the employee’s superiors,
co-workers and/or competitors.” NLRB charged employer with violating
Sections 7 and 8 of NLRA. Important case because it challenged both
the firing decision AND the employer’s policies. Case recently settled.
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11. NLRB Position on Social Media Practices and Policies:
My Workforce isn’t Unionized. Why Should I Care?
● Portions of the NLRA apply to All employees.
● Specifically, employers can’t punish employees for discussing working
conditions or unionization.
● Agency has taken aggressive stance on terminations as discipline for
critical posts on social media.
● NLRA gives employees the affirmative right to engage in connected
action for mutual benefits and protection.
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12. NLRA Acting General Counsel Releases Report
on Social Media Cases: August 18, 2011
● Report explains analysis of 14 cases involving employer’s social and
general media policies submitted to NLRB’s Division of Advice.
● Four cases found protected activity where employees posting on
Facebook were discussing terms and conditions of employment with
fellow employees. Four other cases found activity was not protected.
● In five cases, Division of Advice found that some provisions of
employers’ social media policies were unlawfully over-broad.
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13. FINRA’s Latest Guidance on Dual Use Devices:
Regulatory Notice 11:39, August 2011
Recordkeeping
Q1: Does determining whether a communication is subject to the recordkeeping
requirements of SEA Rule 17a-4(b)(4) depend on whether an associated
person uses a personal device or technology to make the communication?
A1: SEA Rule 17a-4(b)(4) requires a firm to retain records of communications that
relate to its "business as such." Whether a particular communication is related
to the business of the firm depends upon the facts and circumstances. This
analysis does not depend upon the type of device or technology used to
transmit the communication, nor does it depend upon whether it is a firm-issued
or personal device of the individual; rather, the content of the communication is
determinative. For instance, the requirement would apply if the electronic
communication was received or sent by an associated person through a third-
party's platform or system. A firm's policies and procedures must include
training and education of its associated persons regarding the differences
between business and non-business communications and the measures
required to ensure that any business communication made by associated
persons is retained, retrievable and supervised.
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14. FINRA’s Latest Guidance
Accessing Social Media Sites From Personal Devices
Q14: May associated persons use personal communication devices and other equipment, such as a smart
phone or tablet computer, to access firm business applications and perform business activity if the firm
employs technology that enables the firm to keep records and supervise the activity?
A14: Yes. Firms may permit their associated persons to use any personal communication device, whether
it is owned by the associated person or the firm, for business communications. FINRA recognizes that
the development of new technologies can facilitate the ability of associated persons to perform their
responsibilities and, in the case of registered representatives, to serve their clients. Of course, the firm
must be able to retain, retrieve and supervise business communications regardless of whether they
are conducted from a device owned by the firm or by the associated person.
In order to ensure that the business communications are readily retrievable without necessitating the
capture of personal communications made on the same device, firms should have the ability to
separate business and personal communications, such as by requiring that the associated persons
use a separately identifiable application on the device for their business communications. If possible,
this application should provide a secure portal into the firm's own communication system, particularly if
confidential customer information may be shared. If the firm has the ability to separate business and
personal communications, and has adequate electronic communications policies and procedures
regarding usage, then the firm is not required to supervise the personal emails made on these
devices. Of course, firms also are free to treat al communications made through the personal
communication device as business communications.
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15. Genetic Information Nondiscrimination Act of 2008 (GINA)
● Illegal to discriminate against employees or applicants because of genetic
information
● Employers may not use genetic information in making employment decisions and
may not request, require or purchase genetic information
● Any employer that possesses genetic information about an employee must
maintain such information in separate files; and must treat it as a confidential
medical record and may disclose it only under very limited circumstances
● Prohibition on requesting information defines “request” to include “conducting an
internet search on an individual in a way that is likely to result in a covered entity
obtaining genetic information.” 29 C.F.R. §1635
● Safe harbor for inadvertent acquisition applies where employer “inadvertently
learns genetic information from a social media platform where he or she was given
permission to access by the creator of the profile at issue (e.g., a supervisor and
employee are connected on a social networking site and the employee provides
family medical history on his page).” 29 C.F.R. §1634
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16. Guidelines for All Devices
● Decide whether to permit/prohibit/limit or encourage blogging using
company resources or time
● Direct employees to use disclaimers
• “This post reflects my personal views, not those of the company”
● Be careful about threatening disciplinary action for disparaging
statements; consider NLRA implications
● Have employees execute current confidentiality agreements and non-
disclosure agreements
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17. E-Discovery and Privacy
● Sensitive personal information is everywhere…
– Instant messages
– E-mails
– Text messages
– Online registrations
– Social networking
● All of these electronic records could be discoverable in litigation, and
could be monitored by an employer
● Privacy concerns are closely related to document management and
e-discovery
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18. Margaret Keane is Co-Chair of the Employment Dispute Resolution Practice at
Dewey & LeBoeuf, LLP. Ms. Keane represents employers in matters arising out
of all aspects of the employment relationship. In addition, Ms. Keane has
extensive expertise with internal investigations and counseling. She speaks
regularly on privacy, discrimination, retaliation and other workplace legal issues.
Dewey & LeBoeuf LLP
dl.com
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