Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

The U.S. Department of Justice Does Business No Favors By Significantly Delaying Website Accessibility Regulations Until 2018

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Joshua A. SteinFrustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts. 

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see:

Getting Control of Hot-Button Labor and Employment Issues in the Digital Age

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DSCN0843Employers in the technology, media and telecommunications industry are faced with many workplace management and legal compliance challenges.  Among these are trends in the shared economy and rise of the contingent workforce, data privacy and security, and use of social media in connection with recruitment, employee monitoring and termination.  At the recent  Epstein Becker Green 34th Annual Workforce Management Briefing held at the New York Hilton, members of the firm’s TMT Group including the authors of this post, along with in-house counsel speakers Rebecca Clar of AOL and Blake Reese of Google provided a panel workshop on these hot-button issues.  Some of the key take-aways from the workshop include:

Shared Economy & Contingent Workforce

As a result of changes in the post-recession, global economy, there has been a tremendous change in how goods and services are delivered and how consumers acquire these goods and services.  As businesses try to meet these demands and save costs associated with full time employees, they have implemented many alternative work arrangements and hired workers through various means including as independent contractors,  through staffing arrangements, or temporary solutions.  Many workers also have become attracted to the flexibility that these work arrangements can provide to them.  However, employers need to be mindful of the potential pitfalls associated with the contingent workforce and take requisite steps to avoid legal risks:

  • Worker misclassifications can lead to back pay, overtime, tax, unemployment insurance, and workers compensation violations as well as employee benefit plan eligibility and coverage errors.  Ensuring that workers are properly classified is mission critical and employers should self-audit their work arrangements and benefit plans periodically for compliance.
  • The NLRB’s decision in Browning-Ferris, coupled with new “quickie” election rules and the Silicon Valley Rising movement have made for a perfect storm of issues.  As a result, TMT employers who may not currently be represented by a labor organization should be mindful that non-traditional workplaces and corporations, such as new media, may be targeted for unionizations, and/or may be brought to the bargaining table as a joint-employer who engages third-party workers.
  • Given the developments at the Department of Labor, and in particular, the proposed increase in the minimum annual salary requirement in order to meet the salary basis test of the white collar exemptions, there has never been a better and more opportune time to conduct a self-assessment audit in conjunction with counsel.

Data Privacy and Security

In the global, digital world, data privacy and security is top of mind for all organizations and their leaders.  Protecting organizational data, as well as that of employees, is imperative and development of data privacy and security policies will become the norm. The issues employers should address in their policies, as well as the ways in which they do business, include:

  • Conduct a self-audit of organizational networks and systems for security vulnerabilities and train workers on information security best practices
  • Establish audit procedures of vendors engaged to provide services to the organization and any employee benefit plan, especially where the vendor stores information in the cloud or remote data centers
  • Address data privacy and security issues in service agreements including notification procedures and indemnification provisions
  • Develop a breach response plan
  • Obtain cybersecurity insurance
  • Remember:  data privacy and security are no longer just CIO/CTO/IT issues – instead, these are topics that are increasingly becoming relevant in the employment law and employee benefits space.

Social Media and the Workplace

The use of social media by employers to review background information of prospective employees in the recruitment process, as well as ongoing activities during the employment or leading up to a termination process is highly prevalent.  It is easy for employers to search an employee’s name, background and activities on the internet but, how that information is used can have legal implications.  Employers should be mindful of the following:

  • Always rely on objective criteria set forth in a job description before conducting an online search and retain information among the recruitment team at the organization
  • Carefully document reasons for all hiring (and termination) decisions that are consistent with the job description and avoid discriminatory decision making
  • Consider separating the search and decision making functions and train employees searching to remove protected categories from summary of results, upon which hiring decision is made
  • Develop a company social media policy with counsel that is narrowly tailored to survive NLRB scrutiny, but that safeguards the company’s treasures and secrets.
  • Employers can continue to discipline employees for their social media activities, provided that the objectionable conduct does not implicate Section 7 behavior – a fact and circumstances based analysis that may be counterintuitive to HR and in-house personnel.

Employers that address these issues head-on will be able to benefit from the advent of new technologies in the workplace and stay in compliance with applicable laws.


The Good, The Bad, and The Ugly — The Newly Proposed USCIS STEM OPT Regulations

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On August 12, 2015, the U.S. District Court for the District of Columbia issued its decision in  Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, Civil Action No. 14-529 (D.D.C. Aug. 12, 2015) (“Washington Alliance”). In this case, the Court found that the U.S. Department of Homeland Security (“DHS”) had failed to satisfy proper procedural requirements when the agency originally issued its April 2008 interim final rule (the “2008 Rule”) permitting F-1 foreign students who graduated with STEM (acronym for Science, Technology, Engineering, and Mathematics) degrees to apply for seventeen-month work authorization extensions of their Optional Practical Training (“OPT”) if, among other things, their employers were registered in the federal government’s E-Verify program. Due to this procedural irregularity, the Court in Washington Alliance found that all STEM extensions held by F-1 students were invalid.  However, realizing the potential of the decision’s draconian affects, the Court delayed implementation of its ruling until February 12, 2016 in order to allow DHS an opportunity to remedy the 2008 Rule’s defects. On October 16, 2015, DHS issued its regulatory proposals (the “Proposed Rule”) to address the Court’s concerns regarding the 2008 Rule. Public comments on the Proposed Rule are due by November 18, 2015. After reviewing the newly proposed regulations, we believe they can be broken-down into The Good, The Bad, and The Ugly.

The Good:

Unlike the 2008 Rule, the Proposed Rule extends the STEM OPT extension period from its current seventeen (17) months to twenty-four (24) months after the F-1 student completes the initial twelve (12) month OPT period. This will allow many F-1 students working in the U.S. multiple opportunities to apply for H-1B work authorization over the extended three-year OPT period. This will be important because it has become increasingly difficult to secure H-1B statuses for new foreign student graduates due to there being more H-1B applications filed each new fiscal year compared to the static number of H-1B visas available for that year. As an example, the recent 2015 fiscal year saw over 240,000 H-1B applications filed for the limited total of 85,000 available H-1Bs for that year.

The Proposed Rule also will allow any F-1 student that previously obtained an American academic institution-issued STEM degree to use that degree to qualify for the twenty-four (24) month STEM extension following any current OPT period based on a subsequent non-STEM degree. This is so long as the F-1 student has not received the benefits of a prior STEM OPT extension based on the earlier STEM degree. For example, suppose an F-1 student who previously obtained a STEM bachelor’s degree and thereafter completed only a one-year OPT program, chooses to return to a U.S. university to obtain an MBA. Under the Proposed Rule, that same F-1 student is eligible for a 24-month STEM extension in addition to the standard 12-month OPT period that normally follows graduation.

Finally, the Proposed Rule contains two other beneficial provisions. First, it will permit any F-1 student on a seventeen (17) month STEM OPT to request an extension of an additional seven (7) months to a total of twenty-four (24) month as long as they apply no later than 120 days before their current seventeen (17) month STEM OPT expires. Second, the Proposed Rule will extend the unemployment period that F-1 students are permitted under the STEM OPT from thirty (30) days to sixty (60) days, giving these students extra time to find employment should the need arise.

The Bad:

With the benefits, come additional burdens under the Proposed Rule that were not under the legacy 2008 Rule. One criticism of the 2008 Rule was that there was no oversight of F-1 students during their OPT periods. Specifically, DHS did not know what training the student received and was not required to confirm if the training was aligned with the student’s STEM course of study. The Proposed Rule requires employers to develop and implement a formal, customized Mentoring and Training Program (“MTP”) for each F-1 student whom it offers continued employment as part of the STEM OPT extension. The MTP also requires employers to ensure that the student engages only in activities that are consistent with the MTP and related to their STEM education.

The MTP required by the Proposed Rule must include the program goals, six month evaluations, and a final evaluation at the conclusion of the STEM OPT period that all must be submitted to and approved by the Designated School Official (“DSO”) at the student’s university before they can authorize the extended STEM OPT period. The MTP also requires the employer to execute a sworn statement indicating the F-1 student’s salary, hours, and benefits. The sworn signed statement must also confirm that the F-1 student’s compensation will be commensurate to what employees in similar positions receive; the employer will not layoff or terminate any U.S. worker in order to hire or retain the STEM OPT student; and the employer has sufficient resources to train the F-1 student under the terms laid out in the MTP.   Further, the Proposed Rule allows USCIS to request a copy of the MTP when the F-1 student applies for the STEM OPT extension.  In the event an F-1 student wants to change employers during the OPT STEM extension period, the Proposed Rule requires the new employer to prepare and submit a new MTP to the DSO to allow the employment transfer.

The Ugly:

The Proposed Rule includes several new policing provisions that will keep employers on their toes.  One requires employers to report to the DSO any STEM OPT student who terminated or departed within forty-eight (48) hours “after the F-1 student has left employment.”  A “termination” under the Proposed Rule not only occurs when the F-1 student quits or is fired by the employer, it also occurs when the F-1 student has not reported to the employer without any excused absences for five (5) consecutive business days.  Finally, the Proposed Rule allows the DHS to conduct onsite visits of the employer’s workplace to confirm that the F-1 student is performing the work outlined in the MTP.

The Proposed Rule gives F-1 students additional opportunities to extend their employment in the United States, but simultaneously burdens employers with substantial additional responsibilities to plan for, monitor, and evaluate their STEM OPT F-1 student employee population.  This is only a proposed rule and DHS is requesting public comments.  All comments must be received by DHS no later than November 18, 2015.  If you have any questions, please contact Jang Im at

October 15: Attend Epstein Becker Green’s Workforce Management Briefing – High Stakes and High Priorities

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34th Annual Workforce Management Briefing Banner

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker Neil Cavuto, Senior Vice President, Managing Editor, and Anchor for both FOX News Channel and FOX Business Network.

Our industry-focused breakout sessions will feature panels composed of Epstein Becker Green attorneys and senior executives from major companies, discussing issues that keep employers awake at night.  From the latest National Labor Relations Board developments to data privacy and security concerns, each workshop will offer insight on how to mitigate risk and avoid costly litigation.

View the full briefing agenda here. Contact Kiirsten Lederer or Elizabeth Gannon for more information and to register.   Seats are limited.

The Misclassified Worker and Employee Benefit Plan Considerations

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If an employer is found to have misclassified an employee as an independent contractor or other contingent worker, then liability can be substantial under applicable federal and state labor, employment, tax and withholding laws including laws regarding payment of wages, overtime and unemployment compensation, workers’ compensation, discrimination and rights of workers and unions.   It is equally important to understand that compliance of employee benefit plans with requirements under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986, (the “Code”) can also be at risk.  Employers must be mindful of the effects misclassification of employees can have on their employee benefit plans.

Improper exclusion of workers from participation in employee benefit plans governed by ERISA can jeopardize a plan’s tax-qualified status as determined under the Code and can also provide these workers with a cause of action under ERISA. Retirement plans can lose their tax-qualified status for a variety of reasons, including as a result of “demographic failures” (where the plan does not pass coverage and nondiscrimination tests) or “operational failures” (where an employer impermissibly excludes a common law employee from plan participation believing that the worker is an independent contractor).   Worker misclassification can also expose employers to penalties under the Patient Protection and Affordable Care Act for failure to properly account for the number of its employees to determine applicable large employer status as well as its failure to offer any health coverage or to offer adequate or affordable coverage to full-time employees (and their dependents).   Further, the employer may be subject to penalties for violating the Code’s annual informational return and statement requirements.  Workers who are improperly excluded from ERISA plan participation may be able to bring a lawsuit for benefits due, to enforce rights under a plan or to clarify rights to future benefits, or raise breach of fiduciary duty claims.

Leased employees, as defined under Section 414(n) of the Code[1], also present additional challenges for plan administration and can place the qualified status of the plan at risk. Leased employees must be counted in the nondiscrimination tests of qualified retirement plans unless a safe harbor exception[2] is met.   Leased employees are also counted when conducting nondiscrimination tests for other benefit plans under various provisions of the Code (such as Section 79 (group-term life insurance), Section 106 (contributions by an employer to accident and health plans), Section 125 (cafeteria plans) and Section 132 (certain fringe benefits)).  Generally, where these plans do not pass applicable nondiscrimination tests, the benefits that are otherwise provided on a tax-free basis are includible in the income of the key and/or highly compensated employees benefiting under the plan. Furthermore, in the case where a leased employee converts his or her status to that of a regular employee, he or she must be credited with any periods of service previously performed for the employer for purposes of retirement plan eligibility and vesting.  Prior service as a leased employee is not required to be credited for determining eligibility under a self-insured medical plan.[3]

Employers must also be careful when engaging in joint-employer relationships, especially if they have not evaluated whether they are party to such relationships or whether they are the employer of the employees.  It is imperative to define in all relevant agreements and documentation which party is responsible for providing the workers with their benefits.

Plan sponsors may generally exclude from participation in employee benefit plans any leased employees or independent contractors.  However, there have been situations where such individuals have challenged their non-employee classifications and their exclusion from plans.  For example, in Vizcaino v. Microsoft (120 F.3d 1006 (9th Cir. 1997)), a class of freelancers sued Microsoft for participation in various employee benefit plans after the Internal Revenue Service determined, upon audit, that these workers were common law employees since they performed the same work as regular employees, under the same conditions and often under the same supervision.  As a result of this case, many plans include a provision which provides that if a leased employee or independent contractor is reclassified as an employee by a government agency or a court, then such worker shall not become eligible to become a participant in the plan by reason of such reclassification. These types of plan provisions may be drafted to exclude participation on a retroactive basis or on both a retroactive and prospective basis, provided applicable plan coverage and nondiscrimination tests can be met.  Such a provision is meant to evidence the clear intent of the plan sponsor.  Furthermore, many plans also include certain “Bruch” language (Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989)) which gives the plan administrator discretionary powers to interpret the plan itself and make determinations of fact with respect to such issues as eligibility for benefits, which can only be overturned by a court if the decision is deemed arbitrary and capricious.

It is important for employers to self-audit their worker classifications and to review benefits issues as part of any analysis, such as:

  • Benefit plan eligibility terms and distinctions between definition of employees, independent contractors, temporary employees and leased employees to ensure proper inclusion/exclusion of workers
  • Plan nondiscrimination tests and inclusion of leased employees
  • Proper crediting of service for workers who have converted to employee status
  • Plan language regarding treatment of workers following reclassification and plan administrator discretion
  • Consistency of provisions in all plan related documents, policies, procedures, communications and agreements regarding eligibility for benefits and excluded workers

Once an initial assessment is completed, decisions should be made as to any plan and related document revisions, or any corrective plan action, which may be required.

[1] A leased employee is a person who provides services to a service recipient if (i) such services are provided pursuant to an agreement between the recipient and a leasing organization, (ii) such person has performed such services for the recipient on a substantially full-time basis for a period of at least one year, and (iii) such services are performed under the primary direction or control by the recipient.

[2] The safe harbor exception which allows the exclusion of leased employees from nondiscrimination testing requires that the (i) leased employees comprise not more than 20% of the service recipient’s non-highly compensated workforce, (ii) leased employee is covered under the leasing organization’s qualified pension plan, and (iii) the leasing organization’s qualified pension plan is a money purchase pension plan that provides for immediate participation and vesting and employer contributions of at least 10% of compensation for each participant.

[3] Self-insured medical plans also undergo nondiscrimination tests under Section 105(h) of the Code and must cover at least 70% of a company’s employees.  If too many workers are misclassified as independent contractors, for example, a self-insured medical plan might not pass its nondiscrimination tests which could cause benefits to become taxable to highly compensated employees.

Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers

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Several recent National Labor Relations Board (“NLRB” or the “Board”) decisions are likely to give further momentum to ongoing union organizing efforts targeting employers in the technology, media and telecommunications  industry.  Organized labor has already demonstrated that it is interested in actively expanding in this area, both among white collar employees and ancillary workers.

  1. Most significantly, on August 27, the Board discarded the test it had used for determining whether companies are joint employers for the past 30 years and adopted a new standard that will make it far easier for unions and employees to establish that a company is an “employer” and responsible for its contractors, suppliers, vendors and franchisees’ employees. Under the new standard, what matters is whether the purported joint-employer possesses the authority to control the terms and conditions of employment, either directly or indirectly. In other words, the actual or potential ability to exercise control, regardless of whether the company has in fact exercised such authority, is the focus of the Board’s inquiry.  As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry”.
  2. Since the Board’s amended rules for votes on unionization, commonly referred to as the “ambush election rules” because employers are often caught by surprise when a petition is filed, the median number of days between the filing of a representation petition and the day on which employees vote has fallen by 40%, to approximately 3 weeks from petition to vote. This means employers have a far shorter time to respond and campaign and is expected to significantly increase the union’s chances of winning the vote.
  3. Finally, in its decision in DPI Secureprint, Inc. the Board expanded a union’s ability to slice and dice an employee population to create ever smaller micro bargaining units in which unions can group supporters.

Taken together, these three developments expand the ability of unions to rapidly organize small bargaining units and to organize temps, leased employees and employees of tech, media and telecommunications suppliers and support, such as distribution, cleaning and janitorial, catering, and transportation and to saddle the company contracting for such services with  bargaining obligations by claiming it to be a joint employer with the actual employer. These developments present special challenges for companies that use staffing agencies or subcontractors to provide ancillary services. Unions have greater flexibility in setting the scope of a bargaining unit while employers have less time to respond to a petition and prepare for a vote on union representation. Employers should audit their relationships with service providers to determine the risk of joint employer treatment and develop strategies to immediately respond to union organizing campaigns.

Epstein Becker Green’s Wage and Hour App Now Includes All 50 States and More

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Wage & Hour Guide for Employers App

Wage and hour issues are on the rise in every industry, and tech is no exception.  (Especially see our post “How The Apple Class Certification Ruling Affects All Tech Companies.”)

Our colleague Michael Kun, leader of our Wage and Hour group, has just announced the release of a new, expanded version of the firm’s Wage & Hour Guide for Employers app.  Available without charge for Apple, Android, and BlackBerry devices, the app is a handy, mobile reference guide to wage and hour regulations – now in all 50 states, plus federal, District of Columbia, and Puerto Rico.

Following is from the announcement:

We have just updated the app, and the update is a significant one.

While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.

Now, more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour litigation and agency investigations are at an all-time high, we believe the app offers an invaluable resource for employers, human resources personnel, and in-house counsel.

Key features of the updated app include:

  • New summaries of wage and hour laws and regulations are included, including 53 jurisdictions (federal, all 50 states, the District of Columbia, and Puerto Rico)
  • Available without charge for iPhoneiPad, Android, and BlackBerry devices
  • Direct feeds of EBG’s Wage & Hour Defense Blog and @ebglaw on Twitter
  • Easy sharing of content via email and social media
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

If you haven’t done so already, we hope you will download the free app soon.  To do so, you can use these links for iPhoneiPad, Android, and BlackBerry.

Five Technology, Media, and Telecommunications Developments Important to Employers

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Our colleagues Brandon C. Ge, Steven M. Swirsky, Daniel J. Green, Lori A. Medley, and Valerie N. Butera (with Theresa E. Thompson, a Summer Associate) contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the technology, media, and telecommunications industry:

  1. BYOD Programs: Privacy and Security Issues and Minimizing the Risk
  2. High Tech and New Media: Organized Labor’s New Frontier
  3. A Growing Role for the FTC in Regulating Workforce Management
  4. Avoiding Age Discrimination Complaints in an Industry Noted for a Lack of Age Diversity
  5. Robotics in the Workplace: How to Keep Employees Safe and Limit Exposure to OSHA Citations

Read the Full Take 5 here.

Hi-Tech Sports: Another Frontier

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1Recently, Epstein Becker & Green attorneys Michelle Capezza, Christopher Farella, Laurajane Kastner and Patrick Lucignani attended the New Jersey Technology Council (NJTC) 2015 Annual Meeting held on July 15, 2015 at the Forsgate Country Club in Monroe, NJ.   A dynamic panel discussed many innovative ways technology is being used in today’s sports and how it may be used in the future. Tools have emerged to assist in coaching, refereeing and reviewing plays, as well as the development of sensors and technology to protect player safety, virtual player training techniques and video analytics to confirm infractions and potential safety hazards, just to name a few.  John Nisi, Regional Chief Technology Officer for Microsoft Consulting Services remarked that one of the biggest challenges in designing these technologies is determining how to bring technology into the game without interfering with the fabric of the game. And many U.S. sports leagues,  such as the NFL, NHL, NBA, MLB, and NASCAR, are eager to utilize these new technologies but they must be designed and tailored to the needs of their particular sports, including the environments in which their sports are played.  Chip Foley, VP of Sports & Entertainment at High Point Solutions, and Adam Davis, Chief Revenue Officer for the Prudential Center & NJ Devils also noted the challenges associated with developing the required infrastructure in sports arenas and venues that can support the new apps and technologies being introduced.  Ian Goldberg, Founder and CEO of iSports360, offered yet another perspective involving use of mobile technologies for youth sports coaches and parents that can assist with training, coaching and managing performance expectations of young athletes.  When asked about sports fan technology, the panelists noted that video, interactive and visualization technologies for fans will become more prevalent.2

Technology companies interested in developing the apps and new technologies that will be useful and appealing to the sports market, as well as the organizations using these technologies, have a lot to consider.  The amount of data alone that can be collected with these technologies will transform how sports are played, viewed, analyzed and even bet on.  Undoubtedly, concerns regarding data privacy and security will need to be addressed.  Further, as panelists remarked, introduction of new technologies to the game often requires related revisions of rules and regulations governing the sport.  The possibilities are limitless, and perhaps the game will never be the same.

The NJTC is a not-for-profit, trade association which focuses on connecting decision-makers and thought-leaders from technology and technology support companies through access to financing opportunities, networking, and business support. Through its programs, the NJTC provides timely business information to help its members grow and succeed and provides forums for member companies to work together to advance New Jersey’s, and the region’s, status as a leading technology center. For more information regarding The New Jersey Technology Council, visit

Sixth Circuit Says Complaints to Harassing Supervisor Constitute Protected Activity

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Employers in the technology industry should take note of last week’s decision by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. New Breed Logistics (PDF).  The court declined to reconsider a panel holding that, in the context of a retaliation claim, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity under Title VII.”

Three former employees of New Breed Logistics, a supply-chain logistics company, asserted that they had engaged in protected activity by telling their supervisor to stop making advances and sexual comments.  The district court agreed, holding that protected conduct “can be as simple as telling a supervisor to stop.” The Sixth Circuit (PDF) affirmed, relying on the EEOC’s interpretation of Title VII’s opposition clause and finding that an oral complaint to a harassing supervisor – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity.

The employer moved for a rehearing en banc, arguing that the Sixth Circuit’s decision created a split with the Fifth Circuit, which in 2004 had held that a single express rejection to a harassing supervisor did not constitute protected activity.  The employer also argued that an employer should not have to face a retaliation claim if the only person to have received the complaint was the alleged harasser.  In denying the motion for rehearing, however, the Sixth Circuit found that these issues were fully considered in the court’s original decision.

The Sixth Circuit’s decision highlights the need for an employer to train its workforce on its complaint procedures.  Although employees may engage in protected activity by orally rejecting a harassing supervisor’s advances – at least in the Sixth Circuit and in the eyes of the EEOC – they should be made aware of all avenues of complaint so that the employer has an opportunity to learn of and address the complaint.  Importantly, supervisors must be trained on how to handle any such complaints and to report them to human resources.