Employment law attorney Russell D. Jessee reflects on employers’ duty to preserve electronically stored information (ESI) in the first of a two-post series.

We couldn’t get through our workdays without ESI. Usually, we don’t give all that ESI in our workplaces a second thought. When you get hit with an employment lawsuit, however, preserving and managing ESI becomes very important.

The penalties in litigation for failing to uphold your document preservation duties can be drastic ― hundreds of thousands, if not millions, of dollars. Because document preservation obligations can begin even before a lawsuit is filed, it’s not too early to think about what to do about ESI when you eventually (inevitably?) face an employment lawsuit.

An employer’s duty to preserve ESI (and all relevant paper documents, too) arises once litigation is “reasonably anticipated.” That means it isn’t inconceivable that a preservation duty arises as soon as a departing employee shouts, “I’m going to sue you for this.” Particularly if the departing employee is not a hothead, you might reasonably anticipate litigation. Certainly, once you are served with a complaint, litigation isn’t just reasonably anticipated ― it’s inevitable. read more…

In previous posts, we’ve covered how to legally review applicants’ social media pages and online profile as part of the hiring process. But for some companies, the online profile isn’t an ancillary part of the hiring process — it has taken the place of the traditional resume.

A Wall Street Journal article recently featured on Yahoo details how many firms — especially those involved in/connected with tech innovations, the Internet, and social media — are bypassing the traditional resume and instead are asking potential employees to submit nontraditional proof of qualifications, including: read more…

By now, all HR professionals know a comprehensive employee handbook includes a social media policy (you know that, right?).  But that one policy shouldn’t be the only mention of social media in a company handbook.  Employment law attorneys Sharee Eriks and Bruce Cross of Perkins Coie LLP maintain that social media concerns overlap into other policy areas.

To ensure that your entire employee handbook is congruent with your social media policy, start with these two policies: read more…

By Tammy Binford

Yesterday, we wrote about the new report issued by National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon. Included in the Operations Management Memo, Solomon’s report explains his reasoning in 14 recent decisions on cases involving social media. Of those 14 cases, the employer’s social media policy was found to be lawful and needing no revisions in only one instance. Today, we offer a closer look at the case in which the employer got it right according to the NLRB.

The employer was a drugstore operator, and the policy requested employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. The report states that the employer’s policy “prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media ‘embargoed information,’ such as launch and release dates and pending reorganizations.”

The Board found that “although the requirement to confine social networking communications to matters unrelated to the company could be construed to restrict employees from communicating regarding their terms and conditions of employment, we found that, in its context, employees reasonably would interpret the rule to address only those communications that could implicate security regulations.”

“Similarly, we found that the prohibition on disclosing confidential and/or proprietary information acquired in the course of employment was not overbroad,” the report states.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online

The NLRB statement says Solomon’s report represents his interpretation of the National Labor Relations Act as it applies to forms of communication that didn’t exist when the law was written. In Solomon’s memo accompanying the new report, he said social media issues and their treatment by the NLRB “continue to be a ‘hot topic’ among practitioners, human resource professionals, the media, and the public.”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.

Do you know you need to do something about your social media policy but don’t know where to start? The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.

The National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon has released a report detailing social media cases his office has reviewed. The report — a a follow up to the first report concerning social media in the workplace, which was released August 18,2011 — details decisions in 14 cases reviewed by Solomon’s office.

Those 14 cases include:

• five cases in which the employer’s social media policy were found to be overly broad;
• one case in which the employer’s social media policy was found to be lawful;
• one case in which the employer’s social media policy was found to lawful after it was revised;
• one case in which an employee’s discharge was upheld because the employee’s post wasn’t work-related;
• and several cases in which employee terminations were found to be unlawful because the termination decisions came from unlawful policies.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online

The report notes that “these cases are extremely fact-specific,” but that two “main” points from the first report are reaffirmed in this new report:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Do you know you need to do something about your social media policy but don’t know where to start? The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.

Last week, we listed the federal agencies and their regulations for electronic personnel document retention. But if you are ever confronted with employment litigation, just knowing the rules won’t be enough. Now, employment law attorney Joseph C. Pettygrove offers insight into other issues involved with electronic recordkeeping.

There are several issues beyond the specific agency regulations identified in the last post that must be considered before implementing an electronic document retention policy. For example, you should:

• Consider scanning original documents into electronic form in color to retain as much information about the document as possible.
• Establish a procedure under which the scanning of relevant documents ceases immediately if a lawsuit is filed. You will have a legal duty to maintain relevant documents in their original form and suspend their destruction or alteration as soon as you learn that litigation is imminent and until the lawsuit is resolved.
• Account for ease of retrieval and searches when designing and implementing electronic document creation and storage protocols. For instance, the ability to search both content and metadata will be highly useful, and a uniform file-naming and -foldering convention should be adopted.
• Establish security protocols so that only authorized individuals can access each electronically maintained file. That includes creating a secure and reliable electronic storage environment, including off-site backup, and complete and secure destruction protocols for unneeded hard copies.
• Consider creating a quality assurance program that includes regular evaluations and checks of the electronic record-keeping system.
• Retain paper copies of any records that cannot be clearly, accurately, or completely transferred to an electronic record-keeping system (not just workers’ compensation and I-9 documentation).

Bottom Line

Whether your motivation is to go green, save money, or reclaim valuable storage space, maintaining most personnel documents in an electronic format is generally acceptable. However, you should carefully examine each type of document commonly found in employee files and ensure it can be electronically maintained in compliance with various agency regulations. In addition, you should account for the need to recreate as much information about a hard-copy original as possible and suspend document scanning in the event of litigation.

Joseph C. Pettygrove is an associate with Faegre Baker & Daniels in Indianapolis, Indiana. He represents clients in federal and state courts as well as before the EEOC and other agencies and provides day-to-day counseling on compliance issues, independent contractor arrangements and all aspects of the employer-employee relationship. He is a frequent contributor to the Indiana Employment Law Letter. He can be contacted at joseph.pettygrove@FaegreBD.com

Want to include electronic record preservation procedures and policies in your handbook but don’t know where to start? Learn how to streamline your electronic recordkeeping policies and ensure that your e-records won’t invite a lawsuit by participating in the interactive HR Hero webinar Electronic Records Rules for HR: How and What to Save and Delete presented  by Timothy Edwards of Axley Brynelson.

Employment law attorney Joseph C. Pettygrove takes a look at federal agency regulations for electronic personnel document recordkeeping.

Employers are increasingly looking at the feasibility of scanning hard copies of various types of employment documents and retaining only the electronic copies in the routine course of business. Generally speaking, you are allowed to do that if you ensure that your electronic record maintenance systems are secure, accurate, reliable, and accessible (in that they permit rapid electronic retrieval and hard-copy production).

Certain legal regulations impose more detailed requirements for some types of documents, and evidentiary considerations may affect how you design your electronic document maintenance systems. Here’s a look at the legal considerations relevant to various documents: read more…

Employment law attorney and Employers Counsel Network member  Mark I. Schickman shares a story of holiday season merriment gone awry when a few of Congressman Richard Larsen’s staff aides mixed drinking and tweeting . . .

Congressional staff positions are hard to come by, generally demanding smarts, personableness, and political connections. Watching the thousands of bright, good-looking staffers streaming down from Capitol Hill to happy hour watering holes every afternoon after 5:00, it feels like the continuation of an Ivy League campus experience.

Or Animal House if you look at Seth Burroughs, Elizabeth Robbee, and Ben Myers, three Larsen aides who decided to start celebrating “December to Remember” (D2R), a planned month of epic debauchery, according to political blogs and press reports. From a morning ritual of downing shots on the steps of the Cannon House Office Building to spending their office days watching Nirvana clips on YouTube to partying all night long, the three aides had plans for a memorable holiday season.

They might have come through it unscathed, too, given the recuperative powers of the young. And considering how little power House Democrats have at the moment, their drunkenness presumably hardly made Larsen’s office less effective.

Old No. 7

But the trio decided that their “December to Remember” was so monumental that it deserved a Homeric literary recordation — not by ancient scrolls or antiquated letters but by a barrage of tweets. So we learn that the D2R team started their day “at 9 a.m. with shots of Jack” as they “have unabashedly given up on all things work related.” The D2R team referred to their boss as an “idiot” and an “a__hole” and thanked taxpayers for being able to watch “YouTube clips of Nirvana at [our] government job[s].”

Two of the three D2R team members made their Twitter accounts publicly accessible, so one week into D2R, the press learned of them and asked Larsen about them. Seventy minutes later, all three staffers were fired.

This anecdote would be amusing if these weren’t the people to whom we entrust our safety, health, and wealth. Do you wonder why Congress can’t agree on a budget even though the alternative is a global financial meltdown? Do you question why we remain dependent on burning fossil fuels even though petro-politics is a threat to our security and global warming is a threat to our survival? Maybe these problems don’t seem so urgent when viewed through Jack Daniel’s bleary eyes.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online, including Twitter

Tweet at Your Own Risk

Some bloggers have suggested that termination wasn’t enough of a penalty and that the D2R team owes The People a rebate on their salary. Indeed, some recently prosecuted legal theories raise the specter of criminal liability for employees who misuse their employers’ electronic communications systems.

There are several federal laws that govern Internet use with penalties far beyond employment termination. The federal Computer Fraud and Abuse Act (CFAA) was used to prosecute and convict a Missouri mom, Lori Drew, whose fake Myspace posts caused a teenage girl to hang herself in her closet. George Washington University law professor Orin Kerr successfully convinced the judge to overturn the conviction, later telling Congress that the CFAA is vague enough to be used to prosecute such conduct as “using a fake name on Facebook or lying about your weight in your online dating profile.” A California U.S. attorney recently invoked the CFAA in charging David Nosal and Becky Chastain of impermissibly accessing their employer’s internal database to start their own business.

We don’t yet know the limits of legal liability for improper use of office computers or social media at work. We know it can get you fired — and maybe get you thrown in jail. And no matter how smart you are or how bright your prospects, we know one other workplace truth for sure: Drinking and tweeting don’t mix.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200 or schickman@freelandlaw.com.

Twitter isn’t the only social media platform you should worry about when crafting your social media polices.  The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.

Last summer, the U.S. Department of Labor announced a contest for third-party app developers. Now, the agency is featuring 13 of the winning apps on its website. Here are the apps the DOL chose as winners in the “Mobile Apps” category.

Labor Wage Statistics: Provides DOL statistics about average pay and employment rates to help users make future career choices.

Eat Sleep Shop: Provides information about hotels, restaurants, and stores to consumers about wage and hour and Occupational Safety and Health Act violations. read more…

We’ve mentioned several ways to enhnance your company’s website: blogs, intranets, RSS feeds. You have endless options for making it more appealing and interactive to those who visit. But did you know that the new Americans with Disabilities Act (ADA) regulations outline specific accommodations and accessibility standards for the vision- and hearing-impaired for your website? In fact, your obligations start before the employment process starts since your website must be accessible to disabled applicants.

Recently, employment law attorney Jonathan R. Mook of DiMuroGinsberg and Jon Mires of the Center for Accessible Technology presented the webinar “Is Your Website ADA-Compliant?: How to Prepare for the Newest Enforcement Push.” Our sister blog HR Heroline has a great article highlighting several of Mook and Mires’s important talking points, including six typical barriers to web accessibility, reasonable accommodations, and tips for ensuring your website’s ADA accessibility.

To read the full article, go to the HR Heroline post “Complying with ADA Regs for Website Accessibility.”

For more information or to purchase the CD of the event, click here.

Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg in Arlington, Virginia, and a nationally recognized authority on the ADA. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.” He is an editor of the Virginia Employment Law Letter.

Jon Mires is a Web developer focusing on usability and accessibility at the Center for Accessible Technology in Berkeley, California. He has helped a wide range of organizations understand and implement Web accessibility principles, focusing on how to comply with standards and guidelines while maintaining focus on core users and technological capabilities.