Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

Category Archives: Employment Law

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Spate of Gender Discrimination Lawsuits Against Silicon Valley Technology Companies Highlights the Importance of Adopting and Enforcing Anti-Discrimination Policies and Procedures

Recent discrimination lawsuits filed by former employees against Facebook and Twitter, serve as a reminder of the importance of having robust sexual harassment and equal employment opportunity policies in place. In Chia Hong v. Facebook, Inc., et al., which was filed on March 16, 2015 in the Superior Court of California in and for San Mateo County, former Facebook employee Chia Hong, who is Taiwanese, alleges that during her employment at Facebook she was discriminated against and harassed on the basis of her gender, race and nationality in violation of the California Fair Employment and Housing Act. Hong, who … Continue Reading

NLRB Issues Critical Guidance On Employer Handbooks, Rules and Policies, Including “Approved” Language

My colleagues Steven M. Swirsky and Adam C. Abrahms published a Management Memo blog post that will be of interest to many of our readers: “NLRB Issues Critical Guidance on Employer Handbooks, Rules and Policies Including “Approved” Language.”

Following is an excerpt:

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to … Continue Reading

Five Steps Toward Boosting Employee Safety and Avoiding OSHA Citations

Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplace and avoid costly OSHA citations.

Following is an excerpt:Take 5 banner

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should … Continue Reading

Teamsters and Technology: Developing Labor Issues for Technology Industry Employers

Our colleagues Steven M. Swirsky and Daniel J. Green at Epstein Becker Green published an article on Management Memo  that will be of interest to our Technology Employment Law subscribers:  “Teamsters and Technology: Developing Labor Issues for Technology Industry Employers.”

Following is an excerpt:

Employers in the Technology Media and Telecommunications (“TMT”) industries have generally not thought that union organizing was an issue that affected their businesses and workforces.  Recent developments suggest that this is no longer the case.

These industries have earned reputations for innovative workplaces, generous benefits, and free food. At the same time, technology companies … Continue Reading

Virginia Employers: Don’t Force Facebook Friendships

Virginia has now joined the chorus of jurisdictions that ban social media snooping by employers.  As we previously reported here and here, in a growing trend a number of states prohibit employers from requiring prospective or current employees to provide access to their social media accounts during the hiring process.  On March 7, 2015, the Virginia legislature passed H. 2081, a law prohibiting employers from asking or requiring employees or applicants (1) to disclose the username and password to their social media accounts, and (2) to add an employer to the list of contacts associated with their social … Continue Reading

D.C. Circuit Reinstates FMLA Claim Even Though Plaintiff’s Leave Request Was Granted

No software company wants to lose its best programmer for an extended period.  But employers should take heed of the recent decision by the District of Columbia Circuit Court of Appeals when considering employee requests for leave under the Family and Medical Leave Act.  In Gordon v. United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was “ineffective.”  In other words, don’t bully, discourage, or make employees jump through unnecessary hoops … Continue Reading

Employment Law Risks Abound for Startup Companies – Interview in Corporate Counsel

We were recently interviewed in Corporate Counsel, in “Employment Law Risks Abound for Startup Companies,” by Rebekah Mintzer. (Read the full version — subscription required.)

Following is an excerpt:

“We think they should be focused on it from day one,” Ian Carleton Schaefer, a member in Epstein Becker & Green’s labor and employment practice and co-leader of the firm’s technology, media and telecommunications strategic industry group, told CorpCounsel.com. “Oftentimes it takes a triggering event, whether it’s a lawsuit or a government audit to get them focused—and we think that’s a little late.”

The risks of putting employment law considerations off … Continue Reading

Delaware Incorporated Employers Must Adopt Policies to Address New Law Regarding the Destruction of Employee Personal Information

Corporations incorporated in Delaware, regardless of whether they are domiciled in Delaware, should take note of a new Delaware law that went into effect on January 1, 2015 regarding the destruction of unencrypted personal identifying information concerning employees.  Under the new Safe Destruction of Records Containing Personal Identifying Information law (19 Del. C. § 736), employers are required to take “reasonable steps to destroy or arrange for the destruction” of unencrypted records containing employees’ “personal identifying information.”  Upon passing this law, Delaware joined the list of 30 other states that have laws regulating the disposal of personal information, including New … Continue Reading

Epstein Becker Green Technology, Media & Telecommunications Strategic Industry Group Co-Hosts Informative Roundtable Discussion Regarding Financing and Workplace Management Issues

On January 21, 2015 at The Standard, Highline, New York, New York, members of Epstein Becker Green’s Technology, Media & Telecommunications Strategic Industry Group, Stout Risius Ross (SRR), Axial and the New York State Innovation Venture Capital Fund led an informative roundtable discussion regarding “Moving to the Next Level: Valuation & Financing Considerations and Employment Strategies for Start-Ups and Emerging Technology Companies.”  This two-part discussion addressed how to take a company to the next level from a financial and valuation perspective, and relatedly, how to manage and mitigate workplace employment issues to ensure the human capital engine of the business … Continue Reading

Five Employment Law Pitfalls Start-Ups Should Avoid

The common denominator for all start-ups – whether your start-up has $50 or $500 million in its coffers – is its people.  As they grow beyond founders, each start-up and emerging technology company will welcome new faces into the organization to deliver on its business plan.  Whether they are new partners, employees, freelancers, consultants or otherwise – it is the human capital engine that often dictates the success or failure of an otherwise brilliant idea.

While welcoming like-minded, passionate people into one’s organization can be source of immense pride for founders, it also presents employment law challenges and pitfalls that … Continue Reading

How The Apple Class Certification Ruling Affects All Tech Companies

By Ian Carleton Schaefer, Meg Thering and Gregg Settembrino[1]

The unrelenting wave of wage and hour suits continues to roll through the high-tech industry.

On July 21, 2014, in Felczer v. Apple Inc., Judge Ronald S. Prager of the Superior Court of California granted class certification as to a class of  approximately 21,000 current and former Apple retail and corporate employees on claims alleging Apple failed to provide timely meal and rest breaks as required under California Law. The California Labor Code, with a few exceptions, requires employers to provide non-exempt employees with 30-minute unpaid and … Continue Reading

Igniting a Firestorm at Tinder with Flammable Allegations

By: Christopher M. Farella, Jennifer L. Nutter, and Margaret C. Thering

Whitney Wolfe, former marketing vice president and co-founder of the company responsible for the popular mobile dating app, Tinder®, recently filed suit in California state court alleging sexual harassment and discrimination surrounding her experience and eventual departure from the company.  Tinder Inc.’s parent companies, IAC and Match.com, are also named as defendants.  While the complaint is only one side of the story, the exhibits attached to the complaint, which contain text messages between Wolfe, Chief Marketing Officer Justin Mateen (Wolfe’s supervisor and alleged harasser), and Chief … Continue Reading

California Supreme Court Opens the Door to Class Action Waivers, Shuts Door to Waiver of Representative Actions

By Marisa S. Ratinoff and Amy B. Messigian

One of the main battlegrounds between employers and employees relates to the ability of employers to preclude class actions by way of arbitration agreements containing class action waivers. In California, the seminal case of Gentry v. Superior Court (“Gentry”) has had the practical effect of invalidating class action waivers in employment arbitration agreements since 2007. Gentry held that an employment class action waiver was unenforceable as a matter of California public policy if the class action waiver would “undermine the vindication of the employees’ unwaivable statutory rights” under the Labor … Continue Reading

5 Employment Law Considerations in “The Cloud”

By Ian Carleton Schaefer

The newest issue of Take 5 is online, featuring contributions from Michelle Capezza, Nancy Gunzenhauser, Marshall Jackson Jr., Brandon Ge, Gregg Settembrino, and myself, colleagues in our firm’s Technology, Media, and Telecommunications (TMT) Strategic Industry Group.

In this issue, we cover employment issues in “The Cloud”:

  1. Solving Rainy Day Problems While It’s Only Partly Cloudy: Wage and Hour Concerns
  2. PHI in the Cloud: HIPAA, Data Privacy, and Data Security
  3. The Cloud, the Evolving Role of the CIO, and the Increasing Importance of Attracting and Retaining Key IT Talent
  4. The Cloud Keeps Following Me: Jurisdictional Challenges
Continue Reading

Technology Industry Advocates Convene in Washington, D.C., to Discuss Legislative Policies and Reform

As a member of the New Jersey Technology Council and an NJTC Ambassador,  I participated in the TechVoice D.C. Fly-in held February 11 through 12 in Washington, D.C. on Capitol Hill.   This Tech Policy Summit was sponsored by TechVoice, CompTIA and TECNA which brought together delegations from nation-wide State technology councils and organizations, technology industry business leaders, and academicians (the “Advocates”), as well as members of the U.S. Congress (House and Senate) and their staff to discuss various policies and legislation impacting today’s technology companies and our economy.  The following are a few of the policy priorities and reform issues … Continue Reading

Webinar on the ACA Employer Mandate: Feb. 20

In a complimentary webinar on February 20 (1:00 p.m. ET), our colleagues Frank C. Morris, Jr., and Adam C. Solander will review the ongoing impact of the Affordable Care Act (ACA) on employers and their group health plans.

The Treasury Department and the Internal Revenue Service recently issued highly anticipated final regulations implementing the employer shared responsibility provisions of the ACA, also known as the employer mandate. The rules make several important changes in response to comments on the original proposed regulations issued in December 2012 and provide significant transition relief.

Objectives of the webinar are to:

  • Provide an overview
Continue Reading

What’s New in 2014: The Growing Trend in Social Media Privacy Laws

By Anna A. Cohen and Nancy L. Gunzenhauser

As an increasing number of employers use social media to screen prospective employees and to monitor the activities of current employees, several states have enacted social media privacy laws, including Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Utah and Washington.  Oregon joins those states in 2014. 

Oregon’s new law is highly protective of employee and applicant privacy.  Employers in Oregon are prohibited from requesting that an employee or applicant disclose a username or password to social media accounts.  The law also prohibits employers from compelling employees or applicants … Continue Reading

Frank Morris’s “Top 5″ Action Items for Employers in 2014

Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:

It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action items to maximize … Continue Reading

Not in My Backyard: Bringing Claims Against Employees In the Corporate HQ’s Home State May Not Be as Easy As You Think

By Nancy L. Gunzenhauser and Ian Carleton Schaefer

How can an employee of a national employer not “work” where her employer works?  How can such an employee not be subject to suit in the corporation’s backyard? 

According to a recent New Jersey state court decision, a technology consultant for a New Jersey corporation who worked in Illinois and provided no services to New Jersey based clients could not be subject to suit in New Jersey. This decision is instructive for technology companies with a significant national workforce (particularly if they leverage remote/agile workers) in how to structure the employment relationship … Continue Reading

Why the Technology Industry Can Help Build A Better Workplace

By Michelle Capezza

I recently read Sheryl Sandberg’s Lean In, which includes a call to action for men and women to end gender bias in the workplace.  Yet, Lean In is not only a discussion about gender bias and stereotypes, women being held back or holding back themselves but, it’s a call to action as a society to work together toward equality.  A common question that has followed for many who have read the book is where do we begin; how can we move forward as a society to address the issues that face all of us in the … Continue Reading

New York Labor Law Significantly Expands the Scope of Permissible Wage Deductions

by Jeffrey M. Landes, William J. Milani, Susan Gross Sholinsky, Dean L. Silverberg, Anna A. Cohen, and Jennifer A. Goldman

New York State has finally codified its position on permissible deductions from employees’ wages. On November 6, 2012, an amendment to New York’s Labor Law (“Labor Law”) will take effect. The amendment expands the list of employee wage deductions that New York employers may lawfully make, so long as the employee authorizes such deductions.

On September 7, 2012, Governor Andrew Cuomo signed into law the legislation that he introduced, which amends Labor Law Section 193 … Continue Reading

Internet Business Activities–Are They Now the Bull’s-Eye for ADA Public Accommodation Lawsuits?

by Frank C. Morris, Jr.

Two recent decisions involving Netflix again raise the question of whether all online business activities are covered by the public accommodation requirements of Title III of the Americans with Disabilities Act (“ADA”) or whether a “bricks and mortar” presence is required to invoke ADA protections. In late June, in National Association of the Deaf v. Netflix, Judge Ponson of the U.S. District Court in Massachusetts denied Netflix’s motion for judgment on the pleadings that challenged the application of the ADA to its video streaming website. The court found that, despite the absence of a … Continue Reading

NLRB’s Scrutiny of Employment-at-Will Disclaimers Signals a Trend to Employers

by William J. Milani, Susan Gross Sholinsky, Dean L. Silverberg, Steven M. Swirsky, and Jennifer A. Goldman

In a move that signals a trend to employers, the Acting General Counsel (“AGC”) of the National Labor Relations Board (“NLRB” or “Board”) recently claimed in two unrelated cases that allegedly overly broad “employment-at-will” disclaimers contained in employee handbooks have the effect of chilling or interfering with employees’ exercise of their right under the National Labor Relations Act (“Act”) to engage in protected concerted activity. As we previously discussed in “Helpful Guidance Summarizing the National Labor Relations Board’s Continue Reading

Employer Recordkeeping Requirements Extended to GINA

by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman

Effective April 3, 2012, the Equal Employment Opportunity Commission (“EEOC”) extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment records pursuant to these and other employment laws with the same … Continue Reading

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