Expanding on her Advanced Employment Issues Symposium (AEIS) presentation about social media policies, Molly DiBianca shares her thoughts about why it’s important that employers have a policy on images — and what that policy should include. DiBianca is a blogger (delawareemploymentlawblog.com), frequent contributor to Delaware Employment Law Letter, and an associate with Young Conway Stargatt & Taylor, LLP in Wilmington, Delaware.

After her Advanced Employment Issues Symposium (AEIS) presentation on creating social media policies, Molly DiBianca takes a minute to remind employers that social media isn’t just Facebook and Twitter. A noted blogger herself (www.delawareemploymentlawblog.com) and frequent contributor to this blog, DiBianca outlines how you can ensure your social media policy includes all those sites you don’t know about and even ones that haven’t been created yet. DiBianca is an employment law attorney with Young Conway and a frequent contributor to  Delaware Employment Law Letter.

Previously, employment law attorney Robert L. Bailey discussed how technology enables employers (and anyone else) to track what others are doing on the Web and if that is even a good idea. Now, he looks at the legal aspects you must consider if you decide to monitor employees’ electronic activities.

Regulation of employers monitoring their employees’ electronic activities consists largely of ad hoc rules governing specific circumstances of the act of monitoring and what the employer does with the acquired information. Individually, states can have several laws governing the matter. The federal laws most directly relevant to employers’ monitoring of employees’ electronic communications consist of the various titles of the Electronic Communications Privacy Act of 1986, the Federal Wiretap Act (intercepting telephone calls), the Stored Communications Act (accessing electronically stored information), the Pen Registry Act (recording certain metadata about electronic communications like telephone numbers and e-mail contact information), and the Computer Fraud and Abuse Act.

Generally, these acts and their state-law counterparts prohibit the interception or acquisition of communications and data without consent when the person involved had a reasonable expectation of privacy. As a result, proving that consent was obtained can be the best defense (but note that some jurisdictions require consent from all parties, while others require consent from just one).

Your use of monitoring technology must not invade privacy rights. States have rules protecting personal privacy (including the rights to seclusion, to control the use of one’s name and likeness, to control publication of certain personal facts, and not to be depicted in a false light). Some states also have specific statutory schemes proscribing workplace intrusions like taking photographs, making video recordings without consent, and using two-way mirrors, peepholes, hidden cameras, or similar viewing devices. And common-law rules prohibit defaming a person’s reputation by slander or libel.

In addition, you may not retaliate against employees for protected conduct, including  engaging in whistleblower activities, filing workers’ compensation claims, declaring bankruptcy, and fulfilling National Guard obligations. Largely at the instigation of tobacco companies, several states have even enacted statutes forbidding employers from discriminating against employees for any lawful off-duty conduct.

You also must be careful not to monitor employees in a way that would chill (dissuade) them from participating in certain union-related or protected concerted activities (like discussing conditions of employment on Facebook). An employer that takes adverse employment actions after monitoring its employees engaging in protected concerted online activities risks drawing the ire of an enforcement agency like the National Labor Relations Board.

Federal and state laws also prohibits discrimination based on certain protected characteristics, including gender, age, disability, national origin, sexual orientation, and political affiliation. The simple act of engaging in monitoring that uncovers protected activities or status can strip your company of the defense of ignorance, and a disgruntled employee can be expected to raise these issues following any adverse employment decision.

Technology for HR manual and HR Laws subscribers’ tip: Get tips for writing your Internet use policies and more online.

You should be aware of which technologies you can monitor and the many valid reasons for doing so. But you also must recognize the limitations on monitoring. To ensure that your efforts comply with the law, you should seek competent legal advice before undertaking any interception of electronic communications or data or disclosing any material obtained through monitoring.

The best policy is to have the best policy. That is, carefully craft, correctly disseminate, continuously train on, consistently enforce, and constantly update a broad, flexible written electronic activity and monitoring policy that applicants and employees read and expressly agree to in writing. At a minimum, your policy should explain:

1. the categories of on- and off-duty activities that your company considers inappropriate,
2. the lack of privacy for employees using employer-owned, employer-funded, or employer-operated equipment, and
3. that you will monitor all (or specific) activities — at and away from work — to the fullest extent permitted by law without further notice.

A good policy should prevent employees from forming a reasonable expectation of privacy, at least to the extent the courts are willing to accept it as reasonable. Finally, consistent enforcement will reduce the likelihood of an employee claiming that you are using your monitoring policy as a pretext for any prohibited adverse employment action.

Robert L. Bailey is of counsel with Steptoe & Johnson in the firm’s Charleston, West Virginia, office.  He is co-chair of the West Virginia University Institute of Technology Computer Science Advisory Council. He may be contacted at robert.bailey@steptoe-johnson.com.

Need help crafting your electronic workplace policies? The Technology for HR manual gives you policy pointers  as well as talking points to bring up with employees.

Employment law attorney Molly DiBianca points out the obvious — that most of us forget — in a discussion about creating social media polices.

We are in the midst of the Advanced Employment Issues Symposium (AEIS) here in Nashville, and this morning I had the great pleasure of sitting in on Molly DiBianca’s session on creating a social media policy. In one hour, I filled five pages of my legal pad with notes. I was scribbling so fast I might not be able to read everything on those pages. But that’s OK because the main takeaway is one I won’t forget (again) — the online world/Internet/social media is the real world.

Like most of us, I already knew this golden nugget of information, but somewhere along the way, I just kind of forgot. It’s so easy to see the online world and the “real” world as separate things, but they aren’t. How does that relate to creating your social media policy? Actually, it’s really good news for the HR professionals out there struggling to create a social media policy that covers every corner of the Internet, including corners they may not be familar with.

Molly reminds us that 90 percent of the issues that will come up with social media are already covered in your handbook. Your handbook should already include policies on off-duty activity, harassment, discrimination, confidentiality, privacy, ethics, and many of those other areas employees find to get in trouble. To that end, she recommends starting your social media policy with a statement along the lines of “All of the policies in the handbook apply to employees’ online activity.”

So for those of you languishing over your company’s social media policy, don’t fret. You are already most of the way there. To help get you the rest of the way, check out a sample social media policy that Molly posted on her blog after the AEIS session.  To visit Molly’s blog, go to www.delawareemploymentlawblog.com.

– Celeste Blackburn

In the first post of a two-part series, employment law attorney Robert L. Bailey examines how technology enables employers (and anyone else) to track what others are doing on the Web and if that is even a good idea.

If a gadget uses electricity, chances are pretty good that it has a greater role to play than you might think in helping — or possibly hurting — your interests as an employer. Monitoring your employees’ use of workplace computers is an obvious starting place. But people also leave electronic footprints on the Internet — in and out of the office. Our five billion cell phones allow us to make phone calls, but they also function as portable audio and video recorders and players, cameras, hard drives, Internet browsers, e-mail boxes, WiFi routers, and GPS units.

Security cameras, ID badges, radio frequency identification tags — even toll-road payment and vehicle traffic surveillance systems — can track the location of assets and people. Printers, fax machines, copiers, and scanners that read and print out documents also contain computers that generate and record metadata about who used them and when, and hard drives retain permanent — and retrievable — images of those documents.

So what’s a careful employer to do? read more…

Tech expert David Micah Kaufman gives some suggestions for managing your e-mail without letting it rob you of too much time.

One of the biggest sources of time drain and frustration for workers is feeling the need to constantly check their e-mail and respond to it. E- mail itself, or managing it, has developed into a significant stumbling block for employees, perhaps of even demonic proportions. Efficiency expert David Allen comments in his book Getting Things Done: The Art of Stress-Free Productivity, “Because of the volume of discrete messages and the speed with which they show up, e-mail seems to be a unique demon, with a life of its own.”

The big issue is the constant barrage of e-mail messages. Many users take each message as it comes in and deal with it with some sort of response or action. That practice has increased the stress level of workers (consider the image of your brain as an overworked telephone operator), as they spend their time in an “e-mail loop,” the phenomenon of spending the entire day only responding to e-mail. read more…

LinkedIn, the largest professional network on the Internet, currently boasts more than 100 million members in over 200 countries. Now, through the use of a brand-new feature, you can more quickly and efficiently recruit talent from those 100 million members ― all at the click of a button.

Simplifying the process of applying for a job to the same effort required to post a tweet or “like” a post on Facebook, the new Apply With LinkedIn plug-in lets you accept a LinkedIn profile in place of a standard resumé and job application. The plug-in is free to use, and several tech-savvy companies such as Netflix and LivingSocial have already implemented it.

How It Works

For companies that don’t use an applicant tracking system (ATS) such as Jobvite or Bullhorn, integrating the LinkedIn button is a simple matter of having your corporate webmaster copy and paste a few lines of code provided by LinkedIn. The plug-in also can be further customized, still at no charge, with options that allow companies to prompt applicants for a cover letter, add up to three custom questions for items such as security clearance or special certification, and even alter the way the apply button looks on their website by changing colors or text or adding a company logo. read more…

In a previous post, we looked at the issue of goodbye e-mails from the HR practitioner’s point of view. Now, employment law attorney Eileen M. Johnson shares her insights into what can be a tricky situation.

A recent article by a Wall Street Journal intern on “farewell e-mails” presented an insightful look at e-mail messages from employees who were preparing to leave their job (voluntarily or involuntarily) and sharing some parting words with their coworkers.

It used to be that employers would offer a farewell luncheon or party for longtime employees who were retiring or for management staff who were moving to a new company. The departing employee’s supervisor and coworkers would all say nice things about him before the soon-to-be ex-employee had an opportunity to say a few words to the group. But times have changed. Employees move through jobs like they’re playing hopscotch, and the employee farewell party is a thing of the past at many job sites. read more…

The U.S. Department of Labor (DOL) has launched a first-of-a-kind federal website to make it easier for software developers to incorporate DOL data into online and mobile applications. The site features published application program interfaces (APIs) and software development kits (SDKs) that allow developers to remotely access data collected by the department.

The tools, available at http://developer.dol.gov, are part of the DOL’s ongoing efforts to increase transparency, participation, and collaboration through the Obama administration’s Open Government Initiative. A couple months ago, the DOL launched its time sheet app to help employees track and receive all wages earned.
read more…

A couple of weeks ago, I read  an article in the Wall Street Journal written by an intern who is contemplating what he will write in his goodbye e-mail to his coworkers at the paper. The article was written from an employee’s perspective and included tips for other employees on not burning bridges with these e-mails. When I was finished with the article, I was left wondering about the HR perspective on this type of e-mail. Should they even be allowed as a practice?

To get frontline perspectives from HR practitioners, I took the issue to the HR Hero Employers Forum. Here are some of their responses. read more…