United States: Employment Law 2013: It's All About Technology

Published in the New Hampshire Bar News

As technology changes how and where employees perform their jobs, it also gives rise to new concerns in employment law. From using GPS to track employee whereabouts to debating the ownership of social media connections, here are a few key areas to watch in 2013.

Where's My Worker?

It may sound Orwellian, but the use of Global Positioning Systems (GPS) to monitor the whereabouts of employees is an issue ripe for litigation this year. Employers routinely provide their employees with smart phones, laptops, or company cars to conduct company business. To improve efficiency and confirm that employees are performing work-related activities using such company property, employers are increasingly looking to some level of monitoring employee activity.

GPS monitoring of employee activity raises important legal concerns. There are federal and state laws on monitoring electronic devices, including the Electronic Communications Privacy Act and the Stored Communications Act, and employee privacy. Some states have passed laws specific to GPS tracking.
The New Hampshire Constitution contains a right to privacy that applies to the private sector. This year, a proposed law that would specifically prohibit an employer from using electronic devices to track employees without consent of the employee or a court order was retained in committee.

Concerns also arise with constant tracking of employee activity or tracking of employees during non-working hours. For example, an employee may be on personal time but have the company cell phone in his or her pocket, meaning the employer is collecting private data on the employee's whereabouts – tracking an employee to a religious activity or to a gay or union rally. Employers and employees can expect courts to continue to grapple with these competing interests.

Social Media Concerns

We are likely to continue to see legislation addressing privacy of employee social media user names, passwords, and other personal account information. In New Hampshire, a bill that would prohibit an employer from requiring an employee or prospective employee to disclose his or her social media passwords has passed the House, with amendment. HB414 is now in the Senate Commerce Committee.

At the federal level, HR537 would restrict employer access to the login credentials for personal social media accounts of employees and job applicants. HR537 was reintroduced on Feb. 6 and referred to the House Education and Workforce Committee.

Another area of the law emerging from technology involves ownership of social media accounts such as LinkedIn, Twitter, or Facebook. Many companies hire employees to use social media sites to promote a product or service directly using company accounts. Some allow employees to do so indirectly by using their personal accounts. Several recent cases have quickly caught the attention of employment lawyers as they involve disputes over ownership of these on-line accounts and the resulting relationships.
We can expect companies in 2013 to begin expanding their general policies dealing with confidentiality and trade secrets and the appropriate use of social media. Policies or agreements will address the ownership of company social media accounts.

We can also expect employees who have accounts and connections of their own to seek to protect their ownership upon hire. It is in the interests of both companies and employees to address these issues at the commencement of the employment relationship. Social media remains a developing area of the law, and one area in which we can expect a lot more litigation.

Using the Company Phone

A growing area of concern regarding employee compensation is the use of smart phones by hourly or nonexempt employees after hours and on weekends.

Employers provide electronic devices to employees to allow them to stay connected with the office, co-workers, and clients. This increase in productivity for businesses brings some challenges for employers under the Fair Labor Standards Act (FLSA). Nonexempt employees must be paid for all hours worked. Employers have a legal obligation to track those hours worked so employees can be properly paid. Even if those hours were not approved, employees working over 40 hours in a workweek are entitled to overtime pay.

More companies are putting in place written policies covering the expectation of use of smartphones after hours and beyond the workday by nonexempt or hourly employees. The policies should include a process for obtaining required approval for work conducted during off hours as well as a process for tracking time spent by employees. Other companies are choosing to limit such devices to exempt employees only. With the boundaries of work and free time blurring, cases in this area are expected to increase.

DOL Goes High Tech

The US Department of Labor has a free smart phone app – "DOL-Timesheet" – to allow employees to independently track the hours they work and the wages they are owed. Employers still have the responsibility to maintain records of hours worked. This app encourages workers to keep their own records, which could be used as evidence during a wage and hour audit or investigation. The app calculates overtime and regular pay in a workweek. It does not handle tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, pay for regular days of rest, or other non-standard rates of pay.

Interestingly, the app has a "contact us" button that links a call or email directly to the US Department of Labor's Wage & Hour Division. It allows information or reports to be sent to others via email. The app can be found at http://apps.usa.gov/dol-timesheet.shtml. This high-tech tool is expected to raise wage and hour challenges.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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