Mobile technology continues to become more and more a part of our daily lives. While experts debate what this means in the context of personal lives and family lives, there’s no question it also introduces some unique issues to the workplace. Employers should consider potential legal implications of technology in the workplace with respect to three broad challenges of the modern workplace: (1) mobility of technology, (2) regulating employee use of technology, and (3) responding to employee’s use (or misuse) of technology.
Mobility. It used to be easier to control access to technology in the workplace – when the only concern was an employee accessing the internet on a company computer. Employers who issue company-provided equipment such as laptops, tablets, and cell phones should consider potential legal issues inherent in the mobile nature of such technology. Also consider how easy it is for your employees to transfer electronic information outside of your control. For example:
- Security of business information? Consider updating confidentiality policies and agreements with employees.
- Are employees using personal devices to access email or other work information? Consider implementing a “bring your own device” policy.
- Are non-exempt or hourly employees logging in remotely or using mobile devices to check work email or respond to voicemail or text messages after hours? Consider the significant wage and hour implications this poses.
Regulating Employee Use. The dynamic and invasive nature of technology and social media make it difficult to manage or police what employees are doing online.
- Has an employee’s online conduct crossed a line? Consider updating relevant workplace policies, drafting with enough flexibility to address rapidly developing issues.
- But also consider: do current policies go too far? Section 7 of the National Labor Relations Act protects employee communications that may be considered protected activity. The National Labor Relations Board has been engaged in aggressive enforcement efforts (against both unionized and non-unionized employers) to attack employer policies that may be reasonably construed to prohibit employee discussion of wages, safety, supervisor complaints, and other terms and conditions of employment.
Responding to Employee Misuse. When an employer learns about a potential issue, it generally makes sense to conduct an investigation – which may also lead to disciplinary action.
- How are workplace investigations conducted? Consider privacy law issues inherent in monitoring or accessing communications. Consider whether the content of the communications might be considered legally protected. Also consider terms of use and other license agreements governing the use of the online tools at issue.
- What employment action is the appropriate response? Consider whether any contract or statutory protections might limit the employer’s response.