In the first post of two, employment law attorney Taylor Chapman discusses the trend of employees who want to use their own electronic devices for work, the real-world concerns associated with the practice, and different approaches employers can take to policies.

By Taylor Chapman

Bring your own . . . device (BYOD)? A majority of businesses now allow employees to bring their own electronic devices to use at work. With the rapid evolution of technology, this policy has quickly become the go-to standard in most workplaces. However, commingling personal and professional usage, data, and ownership of electronic devices creates challenging legal and security implications. Who owns work-related data on employee-owned devices? The harsh truth is that courts and legislatures have yet to decide that complicated issue.

Whether driven by the younger generation’s need to have the most recent and technologically advanced devices or employers’ attempt to save corporate money, BYOD is the new norm. As the line between business and personal ownership begins to blur, however, corporate security concerns grow. A recent survey by YouGov and Research Now found that 67 percent of surveyed companies had no policies or procedures to manage employees’ use of personal devices for work purposes. If you are one of the 67 percent, you may be headed for trouble. Here’s why. read more…

It happened again this week. It started innocently enough. The icon telling me I had a Facebook message popped up. I clicked on the message, and it started to load. And kept loading. Suspicious of the message, I closed it out and crossed my fingers, hoping that nothing had the chance to infect my phone. A short time later, I got the all-too-familiar message from the same friend: “Please ignore the last message from me. My Facebook was hacked. I changed my password. Hopefully, this won’t happen again.”

Since I had already opened the message, I decided it would be a good idea for me to change my password, too. I’ve heard rumors that you should change your passwords every once in a while anyway, and according to Facebook, mine had never been changed. I’ve also heard crazy talk that using things like pet names isn’t a good idea because they can be easy for “crackers” to guess. Determined to have at least one strong password in my arsenal, I took to the Internet to do some password research.

Here’s what I found (including some links for your own further research): read more…

In a  previous post, employment law attorney Russell D. Jessee discussed  an employer’s duty to preserve electronically stored information (ESI). Now, he offers tips for implementing an ESI preservation plan.

Once you have identified the key players and sources of ESI and assessed your resources, it’s time to start your document-preservation efforts. Find out if your company has a deletion protocol for e-mail and other ESI. Here are some questions to ask:

• Is all e-mail deleted every day? Every week? Every month? Every 180 days? Ever?

• Does the deletion protocol apply to only e-mail moved to the “Trash” folder? Does it apply to the inbox, too? What about the “Sent” folder? What about e-mail archives? read more…

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…