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Technology – friend and foe in employment law

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There is no doubt that technology has made all our lives easier in countless ways. Yet, like many things, technology is a double-edged sword, to be used with caution and good business judgment.

Many companies have moved to “paperless” personnel records, doing everything online. From applications to performance reviews and employee training, some companies no longer have hard copies of anything. While this saves time and energy, not to mention trees and storage space, it has its downsides.

With electronic signatures (or no signatures at all), it has become very easy for disgruntled employees to conveniently deny the contents of “electronic files.” This includes disputing information provided on applications, denying having read or received policies, claiming not to have completed training evidenced only by computer records, and disputing whether arbitration and at-will provisions were “viewable” or even contained in the version of acknowledgements electronically signed. What in the past were simple, undisputed facts -- rarely did an employee dispute their own signature on a document -- have become points of contention, at times sufficient to defeat summary judgment or motions to compel arbitration.

The problems don’t end there. The ease of working remotely, whether by cell phone, blackberry or laptop, has made it impossible to tell when the work day begins and ends for many employees. Significant wage and hour questions are raised for the hourly worker who “checks-in” before or after hours, or on weekends, whether voluntarily or as a job requirement, or the employee who is in “contact” during vacation or while on leave. Not surprisingly, this has already resulted in a wave of class action litigation, with undoubtedly more to follow.

Never far from anyone’s mind when “technology” is mentioned is the popularity of online networking sites. These sites can be a great way to stay connected with potentially valuable business contacts. Yet, these sites provide the opportunity for employees to provide far too much information with the touch of a button.

One of the most frequent violations of company policy is the “recommendation” tool. For a variety of legal reasons, most companies prohibit employees from providing reference letters. But for some reason, the concept that an “online recommendation” is the exact same thing seems to get lost. In one recent case, an employee actually sent an e-mail to a former employee saying, “per company policy, I can’t write you a letter of recommendation, but I’ll be happy to post a recommendation for you online.” The employee apparently never realized that “posting a recommendation online” was just as much a policy violation as a hard copy letter would be. You won’t be surprised to hear that the recommendation posted online also contained confidential, proprietary information about a transaction in which the former employee had been involved, which violated yet another company policy.

So what’s the lesson? Invest time and energy in updating and broadcasting your policies and practices, to ensure they are just as advanced and well understood as the technology they embrace.

Submitted by Amy Wintersheimer Findley for Allen Matkins

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