There is a visceral and palpable dynamic emerging in global workplaces: tension.

Tension between what is potentially knowable—and what is actually known.   Tension between the present and the future state of work.  Tension between what was, is, and what might become (and when).  Tension between the nature, function, and limits of data and technology.

The present-future of work is being shaped daily, dynamically, and profoundly by a host of factors—led by the exponential proliferation of data, new technologies, and artificial intelligence (“AI”)—whose impact cannot be understated.  Modern employers have access to an unprecedented amount of data impacting their workforce, from data concerning the trends and patterns in employee behaviors and data concerning the people analytics used in hiring, compensation, and employee benefits, to data that analyzes the composition of the employee workforce itself.  To be sure, AI will continue to disrupt how virtually every employer views its human capital model on an enterprise basis. On a micro level, employers are already analyzing which functions or groups of roles might be automated, augmented, or better aligned to meet their future business models.

And, yet, there is an equal, counterbalancing force at play—the increased demand for accountability, transparency, civility, and equity.  We have already seen this force playing out in real time, most notably in the #MeToo, pay equity, and data privacy and security movements.  We expect that these movements and trends will continue to gain traction and momentum in litigation, regulation, and international conversation into 2019 and beyond.

We have invited Epstein Becker Green attorneys from our Technology, Media & Telecommunications (“TMT”) service team to reflect and opine on the most significant developments of the year.  In each, we endeavor to provide practical insights to enable employers to think strategically through these emergent tensions and business realities—to continue to deliver value to their organizations and safeguard their goodwill and reputation.

Continue Reading <i>Take 5</i> Newsletter – The Present-Future of Work: 2018 Trends and 2019 Predictions

Employers across all industries are deep in the midst of exciting but unchartered and fluid times. Rapid and unforeseen technological advancements are largely responsible for this dynamic. And while there is a natural tendency to embrace their novelty and potential, the reality is that these advancements are often outpacing our regulatory environment, our bedrock legal constructs, and, in some cases, challenging the traditional notions of work itself.

For employers, this presents numerous challenges and opportunities—from the proper design of the portfolio of the modern workforce, to protecting confidential information in an increasingly vulnerable digital world, to managing resources across less and less predictable borders, and to harnessing (while tempering the power of) intelligence exhibited by machines.

The time is now (if not yesterday!) to develop a long-term strategy to help navigate these current issues and anticipate the challenges and opportunities of the future.

The articles in this Take 5 include:

  1. Embracing the Gig Economy: You’re Already a Player in It (Yes, You!)
  2. AI in the Workplace: The Time to Develop a Workplace Strategy Is Now
  1. Best Practices to Manage the Risk of Data Breach Caused by Your Employees and Other Insiders
  1. News Media Companies Entering the Non-Compete Game
  1. Employers Dodge Bullet in Recent U.S. Supreme Court Travel Ban Order

Read the full Take 5 online or download the PDF.

In recent years, the use of wearable devices, such as smartwatches and Fitbits, has gained popularity not only with the general public and consumers but also among employers as a way to encourage workers to maintain healthier habits and, in turn, help reduce health care costs. Increasingly, companies are distributing wearable devices to employees as part of workplace wellness programs. According to one estimate, nearly half of employers that have a workplace wellness program use fitness trackers.[1] This trend shows little sign of abating. The data collected from these trackers—on such things as quality of sleep and activity level, for example—can be shared with health insurance companies, which may allow employers to negotiate lower insurance policy rates for their employees. Companies that have encouraged wearable fitness trackers have also realized other benefits, including decreased absenteeism and increased worker productivity.

Beyond wellness applications, employers around the globe are also using wearables to increase worker safety. One company in Australia, for example, has had its truck drivers wear “SmartCaps”[2] in an effort to reduce fatigue-related accidents. These hats resemble baseball caps but include built-in sensors that can detect driver alertness and provide a warning to drivers when their fatigue level begins to rise.

To be sure, the benefits of wearable devices, as well as the value of the data generated by them, cannot be ignored. Yet, despite the potential benefits of introducing wearables into the workplace, employers should be mindful of the potential legal pitfalls. Monitoring employees, whether during work or non-work hours, can expose employers to legal risks even if the monitoring is intended to promote employee wellness, improve business operations, or keep employees safe.

What Are the Legal Risks?

Several legal risks arise from the various health-related data that can be collected from these workplace wearables and used by employers. One key threat is that cybercriminals could hack into the servers of companies that sell fitness tracking wearables (and manage the associated mobile health apps) and access employees’ personal data. It is also possible that these companies could sell employees’ personal data to advertising companies or other third parties without employee knowledge.

In addition to data privacy and security concerns, antidiscrimination laws also represent an important risk for employers. For example, under the Americans with Disabilities Act (“ADA”), employers are prohibited from conducting a “medical examination” of employees unless the examination is “job-related and consistent with business necessity.”[3] A medical examination includes a procedure or test that seeks information about an employee’s physical or mental impairments or health. Because wearables today can measure various health metrics, such as heart rate and blood pressure, an employer’s rollout of wearables could unintentionally result in prohibited medical examinations under the ADA. While employers are permitted to conduct voluntary medical examinations as part of voluntary workplace wellness programs, provided that certain conditions are met, this is still an area in which employers should be cautious. Further, to the extent that wearables collect information about employees’ family medical history or other genetic information, employers may face liability under the Genetic Information Nondiscrimination Act (“GINA”). Under GINA, it is illegal for employers to use genetic information in making employment decisions. Finally, employee monitoring, particularly with respect to GPS location, can also potentially run afoul of protections afforded by the National Labor Relations Act (“NLRA”).

How Can Employers Mitigate the Risks of Using Wearables in the Workplace?

While the law in this area is in its nascent stage, before rolling out a wearables program, either as part of an overall wellness plan or independently, employers in all industries should do the following:

  • Although wearable technology is rapidly advancing and adopting novel methods of employee tracking and monitoring may be alluring, exercise particular caution when adopting novel tracking methods, regardless of how strong the underlying business, health, and/or safety justification may be.
  • Consider working with a third-party vendor to administer the workplace wellness program so that you receive information derived from employee wearables on an aggregate basis that does not individually identify data for any specific employee.
  • Ensure that there is a policy in place detailing how the technology will be used and the scope of information that will be collected. Also, consider obtaining employee consent related to data collection.
  • As the legal landscape surrounding workplace wearables evolves, closely track and monitor developments in applicable state and federal laws (including the ADA, GINA, and NLRA, among others) and revise your policies accordingly.

A version of this article originally appeared in the Take 5 newsletter “Five Trending Challenges Facing Employers in the Technology, Media, and Telecommunications Industry.”

[1] Patience Haggin, As Wearables in Workplace Spread, So Do Legal Concerns, The Wall Street Journal, March 13, 2016, http://www.wsj.com/articles/as-wearables-in-workplace-spread-so-do-legal-concerns-1457921550.

[2] Rio Tinto, Hi-Tech Cap Helps Coal & Allied Truck Drivers Work Smarter to Manage Fatigue (May 2013), http://www.riotinto.com/media/media-releases-237_8713.aspx.

[3] U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html.

We recently had the pleasure of being interviewed by Julianne Tveten of Motherboard, for her article “HR Comes Last at Startups, and Women Pay the Price.”

The article raises some important issues for startup founders and investors.  In particular, as we discuss, a delay in establishing HR policies may inadvertently draw claims of harassment in the workplace.

Following is an excerpt of one of our passages:

“Usually, the wakeup call comes by way of litigation, investigation, or when the people strategy is not completely sound and investors or potential acquirers look at the operating model and it impacts their evaluation,” Schaefer said. “And that’s often way too late in the game to be focused on that.”

“It’s important to get on top of these issues early on or it’s easy to go for years out of [legal] compliance,” Michelle Capezza, an attorney who edits the blog with Schaefer, told Motherboard.

Read the full article here.

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.

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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.

In the lifecycle of a start-up company, there are many key issues, situations and milestones when it is important to seek legal consultation. Epstein Becker Green has developed an easy to follow guide to highlight common workforce management issues (including employment, benefits and immigration concerns) start-up employers must consider as they grow their business and application of important laws which are triggered by employee count.

The Workforce Guide outlines critical areas such as:

  • Onboarding and compensation;
  • Managing existing workforce;
  • Separation; and
  • Statutory thresholds triggered by employee count.

This is merely a guide but should be helpful in determining when to seek legal consultation on these and other workplace management issues.   Click here to download the guide.

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 until later or ignoring them entirely are very real. The last thing a startup fighting to survive and thrive wants to deal with is a lawsuit. No matter how great the organization, a black mark of litigation or noncompliance can hurt its reputation and chances to secure more investment. “Getting it wrong can cripple an otherwise brilliant idea and a very sound business plan,” said Schaefer. …

Those trying to hire more employees for a startup have to think about employee benefit issues, including the Affordable Care Act. “We have a whole new legal scheme with the ACA,” Michelle Capezza, a member of Epstein Becker in the employee benefits and health care and life sciences practices, as well as co-leader of the firm’s technology, media and telecommunications strategic industry group, told CorpCounsel.com.

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 is sound.

Joining Scott Weingust, Director in SRR’s Dispute Advisory and Forensics Group and Co-Leader of SRR’s Intellectual Property Valuation Group, on the discussion regarding valuations and attracting capital were Sam Jacobs, Senior Vice President for Sales and Business Development of Axial, and Brian Keil, Managing Director of New York State Innovation Venture Capital Fund.  This panel addressed such issues as understanding value of early state technology companies and ways to attract capital.   Joining Co-Leaders of the EBG TMT Industry Group, Ian Carleton Schaefer and Michelle Capezza, on the discussion regarding workplace management issues were EBG attorneys Ian Nanos, Nancy Gunzenhauser, Dustin Stark and Kimberly Grant.   This panel addressed such issues as attracting and hiring talent, immigration concerns, development of workplace policies, employee benefits and compensation to motivate and retain talent, as well as considerations when ending the employment relationship.  Speakers from both EBG and SRR also highlighted the linkage between sound employment practices and its effect on a start-up’s valuation proposition, their attractiveness to capital and acquisition, in addition to compliance considerations.

Growing today’s TMT companies and managing the human capital that will drive success is not an easy task.  With the proper guidance and advice to secure the necessary capital, and keep your workplace compliant with all applicable laws, you can grow your business and attract, motivate and retain the right talent.  We look forward to assisting you achieve your business goals.

For additional information, please contact Michelle Capezza at mcapezza@ebglaw.com or Ian Carleton Schaefer at ischaefer@ebglaw.com.

By Michelle Capezza, Ian Carleton Schaefer, and Arthur O’Brien (upSKILL Project Manager, NJIT)

The New Jersey Technology Council (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. At NJTC’s Annual Meeting held in July at The Forsgate Country Club in Monroe, NJ, the NJTC furthered its mission by hosting a series of discussions on topics of import to today’s technology companies. The meeting was abuzz with various conversations and idea exchanges on various topics including the current U.S. patent system, forging partnerships between academic institutions and industry to meet workforce needs, early stage funding, and cloud management/hosting colocation as well as presentations from corporate CEOs regarding the challenges facing their companies.

The Epstein Becker & Green Technology, Media and Telecommunications (TMT) strategic industry group had the privilege of facilitating two roundtable discussions regarding Attracting/Retaining Employees and Managing Workforce Risk in the 21st Century. NJTC members who attended our roundtable discussions raised many important issues challenging technology companies in this regard including: (i) finding and hiring the right people, (ii) providing employees with the right skills to manage others as well as overall professional development, (iii) managing employees working remotely and in other offsite-locations, (iv) developing workplace policies to foster work-life balance, (v) incentivizing employees to join and remain with their companies, and (vi) addressing organizational culture issues. One of our roundtable participants was Arthur O’Brien, upSkill Project Manager at the New Jersey Institute of Technology. As Mr. O’Brien explained, “upSKILL is a grant funded by the US Department of Labor and is designed to offer information technology (IT) and science, technology, engineering and mathematics (STEM) training to unemployed professionals and veterans in New Jersey. The purpose of the grant is to enable these U.S. citizens and permanent residents to upgrade their skills so they can successfully compete for jobs currently in high demand in NJ. Classroom and online courses are provided at the six academic partner institutions on the grant: NJIT (the lead partner), Rutgers-Newark and the Community Colleges in Bergen, Essex, Morris and Passaic Counties. The students are able to receive training in web development, mobile apps, big data, project management and Lean Six Sigma. To insure the students are receiving training in areas where NJ companies have skill gaps, the grant management team works closely with the NJ Talent Networks, Workforce Investment Boards and Professional Trade Organizations e.g. the NJ Tech Council and the Commerce and Industry Association of NJ”. The work of Mr. O’Brien, the New Jersey educational institutions and industry organizations provides an example of the important efforts that are underway to forge partnerships between academic institutions and industry to meet workforce needs and prepare the workforce of tomorrow to fill the demand for highly skilled positions.

It is clear that the workplace is changing and attracting and retaining the right workers, with the right skills will be key to growing a TMT company in the future. It will be imperative to design workplace policies as well as compensation and benefits packages that both serve to attract, motivate and retain employees as well as comply with applicable laws. As members of the workforce prepare themselves and retrain for the jobs of the future, employers are in turn called upon to create organizations of excellence to attract and retain these employees, and, foster long term growth of their people and their organizations. Our TMT Group at Epstein Becker Green is well poised to assist employers in developing the necessary workplace policies and programs to serve these needs.

If you are an employer that is interested in hiring skilled IT or STEM professionals, you can contact Arthur O’Brien at AOBRIEN@NJIT.EDU with job descriptions you would like to fill and he can connect you with upSKILL candidates. You can also contact him if you are an IT or STEM professional interested in applying for the program.

For more information regarding The New Jersey Technology Council, visit www.njtc.org.

NJ Technology Council

NJ Technology Council