AN ACTION PLAN FOR LEGAL COMPLIANCE IN TODAY'S MOBILE WORKFORCE

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1 AN ACTION PLAN FOR LEGAL COMPLIANCE IN TODAY'S MOBILE WORKFORCE Presented by: Caryn Diamond Shaw Phone: (407) Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio San Diego San Francisco Tampa Washington, DC

2 THE MOBILE WORKFORCE 77% percent surveyed agree that the use of mobile devices in the workplace is important to achieving business objectives. 39% have the necessary security controls to address the risk. 59% reported that employees circumvent or disengage security features, such as passwords and key locks, on corporate and personal mobile devices. 51% experienced data loss resulting from employee use of insecure mobile devices, including laptops, smartphones, USB devices, and tablets. Source: Websense, Inc.;

3 TODAY S DISCUSSION Legal concerns with managing a mobile workforce Tips and best practices

4 FACT SCENARIO Jane is an entry level associate. When she was hired, she was told her hours would be 9:00-5:00, Monday-Friday. Jane s boss, Susan, is a very busy executive who is often out of the office and much of her work is handled via . Susan s Jane highly confidential information including price lists, marketing strategies, and client lists. Sometimes Jane s herself projects so she can work on the project at home. Jane has access to her s on her personal cell phone. She checks her s all the time, at home, while driving, she even takes her phone to the gym.

5 ONE: ALL EMPLOYEES SHOULD NOT HAVE REMOTE ACCESS Remote access creates security concerns, implicates wage/hour issues, even safety problems. When you get back to the office: Identify what positions currently have remote access. Determine what positions should have remote access.

6 ONE: ALL EMPLOYEES SHOULD NOT HAVE REMOTE ACCESS Put policies in place to clearly delineate what positions may have remote access. Generally, hourly employees should not have remote access. Eliminate remote access for those employees who should not have remote access.

7 SECURITY CONCERNS Employer may be liable for employee s disclosure of confidential information.

8 TWO: DETERMINE IF PERSONAL DEVICES ARE PERMITTED FOR WORK USE When you get back to the office: Utilize a Bring Your Own Device Policy Identify what devices are permitted Required security measures Including required apps and prohibited apps Make it clear who owns the information Document retention procedures

9 TWO: DETERMINE IF PERSONAL DEVICES ARE PERMITTED FOR WORK USE Require employees to sign the BYOD Policy Authorize company to audit compliance Failure to abide by policy may result in disciplinary action

10 THREE: PUT SECURITY MEASURES IN PLACE When you get back to the office: Determine how employees are utilizing remote access Discuss with IT Protocols should be put in place to make sure that remote access to files or server is secure and encrypted.

11 THREE: PUT SECURITY MEASURES IN PLACE Require minimum equipment hardware and software standards for using mobile devices. Password protect mobile devices. Monitor compliance. Don t forget about s. - s should not necessarily be accessible remotely; eliminate if practical.

12 FOUR: PROTECT TRADE SECRETS/CONFIDENTIAL INFORMATION Approximately 50% of employees who left or lost their jobs kept confidential corporate data. 51% said it was acceptable to take corporate data because their company does not strictly enforce policies. 62% said that it is acceptable to transfer work documents to personal computers, tablets, smart phones or online file sharing applications. The employer has the burden in court to establish it took reasonable steps to maintain the secrecy of its trade secrets. Survey by Symantec

13 FOUR: PROTECT TRADE SECRETS/CONFIDENTIAL INFORMATION When you get back to the office: Written policies should make it clear that the employer s business information, regardless of where it is located, is confidential. Restrictive covenant agreements should include remotely accessed information and information stored on personal devices. Restrict access to confidential information to those employees who need to know Consider requiring certain categories of employees to use only company-issued devices for work purposes. Do not authorize transfer of such information to personal s or data storage devices Failure to abide results in discipline

14 VIRTUAL WORKFORCE Allows flexibility, reduces overhead costs, work/life balance But, can create employer pitfalls.

15 FACT SCENARIO Dave is employed as a telemarketer for company ABC. Dave works from home. ABC issued company software that Dave must log into before he has access to any company s or files. Dave is scheduled to begin taking calls at 9:00am, therefore, Dave turns his computer on and starts logging into the various programs at 8:45am.

16 WAGE AND HOUR ISSUES Non-exempt employees must be paid for all hours worked in a workweek. In general, hours worked includes all time an employee must be on duty, from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday. Includes all time in which an employee is suffered or permitted to work, whether or not required to do so. Employees cannot volunteer to do work. If an exempt employee performs any work during the workweek, he or she must be paid the full salary amount.

17 FIVE: KNOW WHEN YOUR EMPLOYEES ARE WORKING When you get back to the office: Employees working remotely must accurately record their time. This includes start-up time. Equipment/software should be able to determine work activity. Employees should only have access to work when using the proper software.

18 FIVE: KNOW WHEN YOUR EMPLOYEES ARE WORKING Awareness of employees working outside business hours. Communicating with non-exempt employees outside business hours. Timekeeping for all hours worked. The Department of Labor has an app to help employees track all hours worked. Non-exempt employees should not be checking s outside of work. Exempt employees should not be checking if they are on an unpaid leave.

19 SIX: ISSUE GUIDELINES FOR TELECOMMUTING When you get back to the office: Avoid discrimination claims by having clear guidelines for allowing employees to telecommute. Identify positions that permit/don t permit telecommuting. Telecommuting may be a reasonable accommodation. Utilize a telecommuting agreement, which should identify obligations and responsibilities. Including productivity, time keeping, equipment, discipline

20 FACT SCENARIO Interior decorator works for large department store. Employer has a studio where employee worked one day per week. On other days, she was out on appointments with clients, or working from home. One Saturday employee was removing fabrics from her van and replacing them with fabrics that were being stored in her garage. Employee walked out her back door and tripped over her dog and was injured.

21 SEVEN: SAFEGUARD AGAINST WORK- RELATED INJURIES Although the employer may not have had control over employee s dog, it had control over whether employee worked away from the studio. When you get back to the office: Create a telecommuting policy that outlines the employer s expectations for employees who work from home. Limit telecommuting to individuals who are well suited for working with limited supervision. Establish guidelines for a home office and provide training related to workstation setup and safety measures. Designated work area Fixed work hours and meal/rest periods.

22 SEVEN: SAFEGUARD AGAINST WORK- RELATED INJURIES Make sure telecommuters comply with injury reporting requirements. Obtain permission from telecommuters to inspect their workplace and any workplace injuries Note: OSHA will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. Employers are responsible in home worksites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home. Employers must still keep records of all injuries (including home offices and home worksites)

23 EIGHT: TAKE PRECAUTIONS WHEN TERMINATING EMPLOYEES WITH REMOTE ACCESS When you get back to the office: Consider cutting off access before terminating a telecommuter. Require employees to make an account of company property and sign a document confirming that they have not retained any company data. Conduct exit interview to gauge any issues. Timekeeping, confidential information, potential to use information at subsequent employment.

24 NINE: EXERCISE CONTROL OVER LAWSUITS When you get back to the office: Include a forum-selection and choice-of-law clauses in employment agreements, telecommuting agreements, commission agreements, and/or severance agreements. However, such clauses are not ironclad. In Florida, such clauses are presumed valid. Other jurisdictions have different standards.

25 LAWFULLY COMPLY WITH EMPLOYEE RIGHTS REGARDING SOCIAL MEDIA

26 Fact Scenario Bar fired server and cook after they commented on co-worker s Facebook posting about payroll and tax practices Server commented on original posting Cook posted comment calling owner an %!* hole and clicked the Like button on comment about taxes

27 TEN: COMPLY WITH NLRA Understand NLRA 7 7 Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Prohibits discipline for some forms of employee advocacy 7 protects employees in both unionized and nonunion workplaces Unfair labor practice for employer to interfere with proper exercise of right

28 Protected Concerted Activities Sharing information about wages Complaining about policies or managers Displaying union-related insignias/ logos Expressing union support Discussing work conditions Otherwise discussing employment terms

29 Is It Concerted? Employee must be engaged in communication with at least one co-worker Contact may occur before, during or after a conversation such as a Facebook posting

30 Is It Protected? Discussions of workload, wages, staffing, or treatment of employees by supervisors But NOT trade secrets or other proprietary information, confidential information, or purely personal rants or individual gripes

31 Back to the Fact Scenario ALJ found participation in discussion about tax withholding and payroll issues was protected concerted activity, and Selecting the Like option on the original posting constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity

32 Lack Of Concerted, Protected Activity Many complaints have been dismissed because individual was merely airing personal grievances -- No evidence of involvement of others or that employee was acting at direction or suggestion of others Posting by employee to a non-coworker about fact that employer did not require waitresses to share tips with bartenders. Posting joking to friends about difficulty in having to deal with mentally ill patients.

33 Social Media Policy Clarify scope by including examples of impermissible or unprotected conduct Narrowly focus on unprotected behavior Don t require advance permission Require employees to maintain confidentiality of trade secrets and confidential information Be specific and define terms

34 Social Media Policy Acceptable Policy limited prohibition to malicious or obscene comments. Policy containing list of plainly egregious conduct such as vulgar, obscene, harassing, libelous or discriminatory comments. Flawed Policy barring statements harming Company reputation.

35 Enforcing A Social Networking Policy Document employee sites and activities that violate policy Print page or use print screen function immediately Determine how access to page was obtained Discipline violators consistently and in accordance with the policy If in doubt suspend pending investigation

36 Thank You Presented by: Caryn Diamond Shaw Phone: (407) Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio San Diego San Francisco Tampa Washington, DC

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