Over the past two years, we at the Navigator have been fascinated with all the new technology showing up in the workplace. We’ve repeatedly cautioned employers about the risks of adopting technology before understanding and mitigating the accompanying risks. The law does not change nearly as fast as technology does, but it has begun to address the issues that arise, at least in three major areas:
Big Data and Data Analytics: Employers use “big data” and data analytics to identify the best candidates, measure employee satisfaction and productivity, and discover internal threats, among other uses. Slicing and dicing data can create useful information, but it can also create issues related to discrimination, cybersecurity, and privacy.
The application of discrimination law to data analytics has been the focus of significant attention in the last two years. Scholarly articles have been published questioning whether the current law will apply or what evidence can be used. The Equal Employment Opportunity Commission has taken a great interest, holding meetings and openly discussing the risks and benefits of employers’ use of data analytics. Issues related to the storage and security of data could be addressed by federal and state statutes and show up in lawsuits that follow data breaches. Access and privacy concerns are being addressed in litigation and legislation.
Employee Monitoring: Employer use of employee monitoring devices and technology has increased significantly in the past two years. Employee badges monitor the location and conduct of employees, under-the-desk heat monitors track when employees are using their desks, and implantable devices monitor when employees enter and leave buildings. This Big Brother tech, although popular among employers, has caused employees to question whether or not they have privacy rights. Some states have passed laws limiting monitoring, and lawsuits related to employee monitoring and related privacy rights continue to be brought. Not all result in helpful legal precedent, however: when Myrna Arias sued her employer after she was terminated for deleting an app on her phone that tracked her every movement, the case resolved quickly and quietly before it produced any meaningful guidance from the court.
Social Media: Social media continues to impact the workplace and create legal issues for employers. Just this past week, a divided National Labor Relations Board panel held that an employee’s tweet about low wages was not protected concerted activity, but the employer’s unlawful social media policy nevertheless created an unfair labor practice. In general, the National Labor Relations Board has taken employee-friendly positions about social media, finding, for example, that employees may use social media to criticize their employer or a manager (and even use vulgar language to do so) without fear of retaliation.
Employers have increased their use of social media, using branding techniques to bolster their organization’s image and social recruiting to lure candidates. Access to applicants’ and employees’ social media profiles, whether through direct employer action or the use of vendors’ apps and software, means access to information that employers must not consider and, in some cases, may not request or keep without risking violation of anti-discrimination laws. For example, a man in Illinois sued a company for age discrimination after he was denied a job. The employer argued that it could not have considered the applicant’s age because the interview was conducted over the phone. The applicant countered by demonstrating that his LinkedIn profile was reviewed by the company and clearly showed he was over the age of 40. This case was dismissed on summary judgment, but we expect that there will be others.
New forms of HR technology seem to be showing up every day. Legislative actions and court decisions applying employment law to this technology aren’t as common, but the pace is increasing. We promise to keep an eye on both.
