Tag Archives: harassment

January 2014
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Employment Law

BYOD? Legal Risks of Bring Your Own Device Policies

In our 24/7 society it seems everyone carries a smartphone.  We feel the need to be able to access email, surf the internet, text message and make and receive calls anytime, anywhere.  And many employers want their employees to be reachable anytime, anywhere.  As a result, many employers are going “BYOD” and adopting Bring Your Own Device Policies.  But going BYOD creates certain legal risks.  Employers need to know those risks and how to minimize their exposure to them.

The primary legal risks associated with going BYOD include:

  • Loss of confidential information due to the loss or unauthorized access of the employee’s device.
  • Wage and hour issues, such as a non-exempt employee using the device to work overtime or a minimum wage violation because the fees and expenses for the device reduce the employee below minimum wage for each hour worked.
  • Discrimination and harassment.
  • Employee negligence – the employee has an accident while using the device which results in a worker’s compensation claim, a claim by an injured third party, or both.
  • An overbroad BYOD policy which inhibits “concerted activity” in violation of the National Labor Relations Act (“NLRA”)

To minimize these risks employers should adopt a BYOD policy.  An effective BYOD policy should:

  • State that mobile device management software will be installed on the employee’s device which allows the employer to remotely “wipe” the device if necessary.
  • State that the employer is not responsible for personal data loss.
  • State that the employee has no expectation of privacy in the information stored on the device.
  • State that the employer can monitor and preserve all data on the device.
  • Require employees to sign the policy consenting to the terms.
  • Prohibit the use of the device outside of the employee’s normal work hours unless expressly authorized to do so.
  • Prohibit the use of the device for work while on unpaid leave unless expressly authorized to do so.
  • Ensure that the fees and expenses for the device do not reduce the employee below minimum wage.
  • State that time worked using the device will be counted as compensable time.
  • Prohibit the use of the device for discrimination or harassment.
  • Prohibit the use of the device when driving or operating equipment.
  • Prohibit the storing of information from prior employers.
  • State the protocols that will be followed in the case of an employee’s resignation or termination.
  • Specify any other prohibited uses.
  • State that the employee must notify management immediately in the event their device is lost, damaged or stolen.
  • Contain an NLRA disclaimer.
  • State that the BYOD Policy may be revoked at any time.

Adopting an affective BYOD Policy which contains these elements will help those employers who choose to go BYOD minimize the risks from doing so.

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October 2013
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Employment Law

Who Is The Employer of a Temporary Employee?

Do you use temporary employees in your business?  If you answered that question “yes” then you need to know that your company may be considered a “joint employer” of those employees.

If your company exercises the right to control the temporary employees your company  and the company providing the temporary employees (“temp service”) are joint employers of the temporary employees.

Factors to consider in determining who has  the right to control include:

1.who controls when the employees arrive and leave;

2. who controls what the employees do and how they do it;

3. whose policies and procedures govern the employees;

4. who provides the tools and equipment; and

5.  who pays the employees and provides their benefits.

The most significant legal implication of being a joint employer is that temporary employees can pursue a claim against you and the “temp service” for any  discrimination, harassment or retaliation they claim to experience while performing an assignment for your company.  Furthermore, under the Affordable Care Act (ACA) if you have the right to control the temporary employees you use you will have to count them in determining whether you meet the ACA 50 employee threshold.

Temporary employees can provide a valuable service to your business.  But if you use them know that the legal ramifications of doing so may be far more permanent.

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June 2013
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Employment Law

Supreme Court Narrowly Defines Supervisor

In a victory for employers yesterday the  U.S. Supreme Court  adopted a narrow, bright-line standard to determine who counts as a supervisor in Title VII harassment suits.

In Vance v Ball State, a 5-4 decision, the Court affirmed summary judgment in a racial harassment suit and held that an employee only counts as a supervisor who can render an employer vicariously liable under Title VII if the employee is empowered by the employer to take tangible employment actions against the victim. These tangible actions include hiring, firing, promoting, reassigning significantly different tasks or causing changes to benefits.  As a result, an employee who merely directs another worker’s day-to-day activities does not qualify as a supervisor in a Title VII harassment suit.

While this is certainly good news for employers, employers should still focus on preventing harassment in the first place.   Adopt a clear policy prohibiting harassment which contains  an effective reporting mechanism and enforce that policy. Train your workforce on what constitutes harassment and how to prevent it and report it in accordance with your policy.  And if a complaint is made, investigate it promptly and thoroughly and take effective corrective action based on the results of your investigation. Remember, an ounce of prevention is worth a pound of cure.

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January 2013
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Employment Law

What to expect from the EEOC in 2013

Late last month the EEOC issued its Strategic Enforcement Plan for 2013.  The Plan sets forth 6 priorities:

1. Eliminating Barriers in Recruitment and Hiring;

2. Protecting Immigrant, Migrant and Other Vulnerable Workers;

3. Addressing Emerging and Developing Issues;

4. Enforcing Equal Pay laws;

5. Preserving Access to the Legal System; and

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Based on these priorities I recommend employers take the following steps:

1. Conduct an internal “equal pay audit” to ensure that male and female employees are being paid the same for equal work;

2. Conduct anti-harassment training for your entire workforce;

3. Conduct an internal audit of your compliance with immigration laws, including Form I-9, and;

4. Conduct an internal audit to ensure that there are not discriminatory differences in pay for any employees.

Any issues that are discovered should be corrected.

Happy New Year!

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