Panel examines new technology, challenges, privacy concerns in a world gone suddenly virtual at 2010 Annual Meeting in Hollywood, Florida.
Attorneys must think ahead of the curve when it comes to new technology as it relates to the law.
That was the assessment of panelists during the Labor and Employment Law Section’s Annual Meeting program, “A Brave New Workplace: Issues and Potential Solutions in the Virtual World.”
With the development of e-mail, Blackberrys and social media in the past decade, technology has moved faster than the law. Attorneys’ work lives have been transformed, as have their clients’ lives and their expectations of their attorneys with expected immediate response and 24/7 availability.
Program panelists William A. Herbert of Albany (Public Employment Relations Board); Peter D. Conrad of New York (Proskauer Rose LLP); Hanan B. Kolko of New York (Meyer Suozzi English & Klein, PC); Norma G. Meacham of Albany (Whiteman Osterman & Hanna LLP); and Steven Sykes of New York (District Council 37; AFSCME) discussed the reasonable expectation of privacy in both the public and private sector, effectiveness of e-mail, and a review of new cases.
New technology, new rules
According to the U.S. Department of Labor’s Bureau of Labor Statistics issued in October 2003, 77 million persons used a computer at work. That same study revealed that about two of every five employed individuals connected to the Internet or used e-mail while on the job. Kolko pointed out the benefits of e-mail, saying that it is “such an effective means of communication” as you can “instantly send out a message to 5, 10, or 1,000 people, and forward messages.”
Most employers have instituted computer use policies, as well as restricted access to certain Web sites. The 2005 Electronic Monitoring & Surveillance Survey conducted by the American Management Association revealed that more than 25 percent of employers had terminated employees for misusing the Internet or e-mail.
Up for discussion
The panel discussed the case of Guard Publishing Company v. NLRB, which was decided by the U.S. Court of Appeals for District of Columbia in July 2009. The case involved a unionized Oregon newspaper, The Register-Guard, which had a communication systems policy, implemented in October 1996, forbidding solicitation for commercial ventures or other non-job related solicitations.
The union’s president, a bargaining unit employee, had used the e-mail system three times during collective bargaining in 2000, twice to solicit support for the union from the union’s offices and addressed to employees at their Register-Guard e-mails; the other e-mail was sent from a company-owned computer that the employee used at work. In its ruling, the U.S. Court of Appeals stated that an otherwise valid no-solicitation rule applied in a discriminatory manner may not be enforced against union solicitation. Under this rule, the court found that the employer’s application of its communications systems policy against all three e-mails was unlawful.
Kolko noted that the ruling was based on facts from 2000 and ignored two critical developments: the way that people communicate through a personal digital assistant and the way people use e-mail to communicate with their co-workers.