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No Easy Answers at the Intersection of Law and Technology

By Allen Smith  6/27/2012

ATLANTA--All she wanted was a simple answer. Instead, the HR professional got a 50-page memo from her attorney.

The question? What risks does an employer have when it has a GPS app on an employee’s personal phone to track where the person goes on the job?

It’s a question that doesn’t have an easy answer, like many questions employers have with new technology in the workforce, according to Joe Beachboard, an attorney with Ogletree Deakins in Los Angeles.

An attendee at his June 26, 2012, session at the Society for Human Resource Management 64th Annual Conference & Exposition here got the mammoth memo, which she said boiled down to a recommendation to just issue company-owned devices with the GPS on them or be on the cutting edge and require the app on employees’ personal phones and get sued.

There just isn’t yet an answer to many questions where technology and the law intersect, Beachboard emphasized.

Personal Devices

It’s especially difficult to guess which way courts will go with the use of personal devices in the workplace.

Say an employee loses an iPad that has data an employer is supposed to keep confidential, such as employees’ Social Security numbers or dates of birth. Employees aren’t likely to tell companies that they’ve lost their personal devices. And even if an employee informs the employer about the lost device, the employer and the employee might not know exactly what was on the device. As a result, the employer might not be sure what its obligations are, Beachboard noted.

So, what’s a company to do: bar employees from using personal devices for work?

Fat chance that will fly.

Beachboard said his law firm tried to clamp down on the use of iPads at work. BlackBerries were an authorized device at the firm, and IT said it was supporting BlackBerries, not other devices.

That worked for about three months.

“Corporate IT departments are like the law. They move slowly.” As a result, people get frustrated and look for backdoor ways to achieve what they want to achieve. At the firm, once more and more attorneys had iPads, there was a groundswell of support in the firm’s offices for figuring out a way to do work from iPads in a way that’s secure.

Finding workable, compliant solutions with technology is “an issue we’re all struggling with,” Beachboard remarked.

Social Media

The initial reaction to new technology often is suspicion.

Take social media. Initially, “employers feared social media. Now they embrace it,” he said.

And with social media, the legal risks are likely only to grow, he predicted. For example, if nonexempt employees are tweeting for work that counts as compensable time, and who knows how much tweeting they might be doing?

So, are employers safer if they prohibit employees from talking about work on social media?

Probably not, Beachboard said, noting that such a prohibition probably would violate Section 7 of the National Labor Relations Act.

Beachboard told conference attendees they “need a strategy” to deal with technology and “need it now.”

However, he concluded by saying that the law is trying to catch up with new technology, but every time it almost catches up, the next big new thing comes down the pike.

Allen Smith, J.D., is manager, workplace law content, for SHRM.

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