Employers 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.
- Member of the Firm