Epstein Becker Green 30th Annual Client Briefing: Labor and Employment Law in the Digital Age

Labor and Employment Law in the Digital Age:
Getting Controlof the Hot ButtonLabor & Employment Issues

Texting. Tweeting. Friending. Blogging. These and many other new "verbs" have become so entrenched in the lexicon of our culture, including the workplace, that it's hard to believe that most of them did not exist just a decade ago.

Keeping up with the latest technology is itself no easy task, let alone its emerging impact on workplace law. From online recruiting and "textual" harassment to cyberbullying and electronic data security, the increasingly complex virtual world presents employers with continually evolving real-world legal risks.

As the courts begin to tackle the myriad issues emanating from the invasion of cyberspace into the workplace, employers must keep abreast of the latest developments, so that they can ensure that their practices are both legally compliant and operationally sensible.

Please plan to join us for our special 30th annual NY Client Briefing, where we will explore a wide range of digital age issues affecting the workplace as we address the latest, most significant developments in labor and employment law.

This all day seminar is approved for 7.0 hours of credit in Professional Practice.

-- AGENDA --

Morning Plenary: 30 Years Later — Taming the Ever-Growing Employment Litigation Beast in an Ever-Higher Tech World

To say that labor and employment law has changed dramatically in the three decades since our first client briefing is an understatement. Indeed, it is likely that many of the issues keeping HR professionals and labor counsel busy these days involve laws and legal concepts that did not even exist 30 years ago, including, for example, the ADA, FMLA, ERISA, WARN Act, Sarbanes-Oxley Act, and even sexual harassment.

Now add to the mix an increasingly wired world, where employees, plaintiffs' bar, and government agencies can find and connect with one other with the click of a mouse, or the touch of a tablet.

It is not surprising then that surveys of corporate counsel continue to cite employment litigation and government regulation/enforcement among their top concerns.

Hence, our morning plenary will address the fundamental issue of concern to our clients: How do we protect our companies from costly and time-consuming employment litigation and government investigations? And, how does new technology complicate management's efforts to meet this challenge?

Topics to be covered include:

  • Facebook "friends" and Twitter "followers"-- Today's workers are savvier about their legal rights and more willing to pursue them, especially in the current economic climate. At the same time, plaintiffs' bar and government agencies are more aggressive — and tech-wise — in seeking out dissatisfied and insecure employees. Understanding this dynamic is essential to developing effective risk management strategies, especially in this era of employment class actions and heightened government enforcement.
  • The key policies and practices that can minimize the risk of class actions and systemic government investigations. Though some lawsuits and government investigations are unavoidable, many can be prevented, even in today's highly litigious climate. We will provide practical guidance on how to protect your company from costly and time-consuming litigation and investigations.
  • The Supreme Court responds to the employment class action epidemic: Recent Supreme Court decisions could help employers significantly reduce their chances of becoming the target of a high-stakes discrimination or wage and hour class action. We will assess the strategies suggested by these rulings and help you evaluate whether they can work for your company.

-- Morning Workshops --
Choose one workshop to attend.

  1. Recruitment and Background Checks in the Digital Age. Cyberspace recruitment and vetting, including Facebook "fishing," are largely uncharted waters. We will explore the potential risks and rewards of Internet hiring practices, as well as address the latest hiring issues on the EEOC's agenda, including credit checks and bias against the unemployed.
  2. An Employer's Guide to E-tiquette: How to Prevent and Respond to Sexting, Cyberbullying, and Workplace Conflicts. Encouraging and maintaining civility in the workplace is an increasingly formidable challenge in the wired world, where texting and tweeting are quickly becoming the new normal. We will present real-world examples of the types of issues employers are beginning to face, explore the kinds of employee and third-party liability employers can incur, and offer practical suggestions for preventing and handling conflicts, harassment, and bullying in the digital age.
  3. The New "Union-Approved" NLRB Has a Lot to Say About "Facebook Firings," as well as other Digital Age Phenomena, and All Employers (yes, even non-union employers) Need to Pay Attention. The Labor Board has been at the forefront of the controversy over employees' use of social media to air their gripes, and many of the cases to date involve nonunion employers. But this is far from the only issue employers need to be concerned about. The Board and its General Counsel have been on a tear, vastly expanding the scope of "protected concerted activity" (again, greatly affecting nonunion employers), and unions' organizing rights, not to mention its unprecedented interference with operational decisions, as in the Boeing case. This workshop will update you on the latest developments and offer specific steps for lawfully preserving your management prerogatives on this increasingly tilted playing field.
  4. Trends in Employee Benefits and Executive Compensation: What Is Important for 2012. Are you "Bewitched, Bothered and Bewildered" by the maze of rules impacting employee benefits and compensation? Critical legislation and guidance issued within the last two years continue to present significant challenges to employers. The landscape has been further complicated by ever-evolving judicial interpretations of ERISA. Our panel will address how these changes have affected health plans, retirement plans, and executive compensation practices, and offer practical solutions for 2012.

Afternoon Plenary: Restricting and Monitoring Employee Use of Social Media Sites, Blogs, Twitter, and the Like: How to Develop Rational Electronic Communications Policies

Contrary to what many employers may have believed just a few short years ago, recent court decisions indicate that management may not have an unfettered right to restrict what employees say on social media sites, "rant" sites, blogs, YouTube, or Twitter. Similarly, courts are carefully scrutinizing the electronic communications policies relied upon by employers to justify their monitoring activities. As the law develops, it is becoming clear that employees may have constitutional, statutory, and common law rights under federal and state laws that protect their posts, rants, and tweets, even those that are highly critical of their employer.

Topics to be covered include:

  • When employers may legally discipline or discharge an employee for his or her Internet activities
  • Monitoring: What's legal, what's practical, and assessing what makes sense for your company
  • Developing and implementing a lawful electronic communications policy.

-- Afternoon Workshops --
Choose one workshop to attend.

  1. When Cyberspace Is Home to Your Company's Most Valuable Assets: Protecting Trade Secrets and Other Confidential Information, and Ensuring Data Security in the Digital Age. Surveys show that more and more departing employees are leaving their jobs with more than just their Rolodex; with the aid of a thumb drive or other such device, they also are taking some of the company's most valuable assets — client lists, marketing plans, and other proprietary data. Security breaches also are on the rise and present increasingly complex challenges, especially in this era of cloud computing, smartphones, etc. We will address an employer's rights and obligations with respect to noncompetes, confidentiality agreements, and the like, and provide you with the concrete policies and practices you should have in place now to minimize the risk of losing your company's vital property to a departing employee or an inadvertent security breach.
  2. The DOL "Has an App for That." The U.S. Department of Labor's Wage and Hour Division has gone high-tech and is encouraging your employees do likewise, with, among other new tools, a downloadable "app" to keep track of their work time. There's also a new program to refer workers with pay claims to private attorneys. Thus, just about any wage and hour violation is potentially a major investigation or lawsuit waiting to happen. We will address the most common, and emerging, wage and hour mistakes, including the growing "BlackBerry overtime" problem, and provide practical suggestions for ensuring that your pay practices comply with your legal obligations under both federal and state laws.
  3. Immigration Update: The Issue of Immigration Compliance Assumes a Greater Role in Organizational Risk Management Policies as the Federal Government, and Many States, Ratchet up the Consequences for Violations. The Bush-era raids have been replaced by intrusive investigations and costly litigations seeking fines, damage awards, and even criminal prosecution. The governmental enforcement focus has expanded to include Form I-9 compliance, export controls, anti-discrimination actions under the immigration laws, and suits against H-1B employers for violating aspects of that common classification. This potentially affects every organization that employs foreign nationals. We will address the recent developments in these areas and provide practical, common sense solutions to help avoid these hidden liabilities.
  4. OSHA Enforcement in the Digital Age: How OSHA Is Using the Latest Technology to Enhance Workplace Safety & Health Enforcement. Like Wage and Hour, the DOL's OSHA division also has gone high-tech, as part of its revved-up investigatory and enforcement efforts. We will address such initiatives and strategies as: "regulation by shaming" — OSHA's virtual newsroom and electronic enforcement press releases; the agency's texting while driving enforcement program; its weekly online reports of fatalities, catastrophes, and other events; the proposed rule for electronic submission of injury and illness recordkeeping data; and the Facebook/Android app of OSHA and Wage & Hour Enforcement Data, intended to impact the public's employment and purchasing decisions.