Compensation for Blackberry "OverTime?"
A group of Chicago police officers are suing the city for overtime pay and violations of the Fair Labor Standards Act for the use of a Blackberry on police business after shift-time. The class action suit claims the Police Department expected officers to be on call 24 hours a day via the Blackberry so they could access work-related messages to conduct department business.
They also claim the City failed to keep appropriate records of the time employees spent on these devices. They are suing for three years of unpaid overtime.
The most fascinating issue at hand may come to be that by issuing the device the employer "permitted" or encouraged work outside normal employee working hours and that this time is therefore compensatory for non-exempt employees.
The suit highlights another potential risk for employers: the fact that such devices create a record of work means it could be difficult for an employer to take the position that they were unaware of work being performed in off-duty hours.
This same issue crops up in expecting non-exempt employees to be responding to posts on social media sites after work hours.
We'll keep you appraised of the outcome.
[ Resources for you ]
Allen V City of Chicago Compliant
To Monitor or Not to Monitor, That is the Question
Since this is an issue that comes up frequently in our training sessions, we thought it worth highlighting the question again.
A Federal Court in California made a ruling last May that accessing an employee social media posts or messages on Facebook or MySpace that are intended to be private will run afoul of the Stored Communications Act.
Although the case was not specifically about whether or not employers have broad freedom to monitor employees' social media sites, Crispin v. Christian Audigier, Inc. is the first case that has squarely addressed whether social networking meets the test to be included in protected information under the Act. The answer is yes. Your employees' privacy settings have a direct impact on whether their postings will be interpreted as protected information.
The decision is technical indeed, drawing distinctions about how and where the information is stored. But in light of it, legal pundits are advising employers to 1) get employee consent to monitor off-duty hours activity; 2) set expectations of privacy; 3) be very wary of requesting to and accessing an employee's social network account; 4) be aware of the unclear legal environment of using information gained from a third party site.
Bottom line - to protect yourself and your employee's privacy, consult a digitally savvy attorney about navigating the social media monitoring landscape and be sure to train managers about appropriate social media practices.
Facebook Places - Does "Checking In" Compromise Your Employee's Privacy or Safety?
We've been advising clients for a while now to consider the workplace safety, privacy and confidentiality implications of location-aware applications and location social media "check-in" behaviors that broadcast a user's current physical location.
Until a few weeks ago, the universe of people using these services was relatively small - 3 million or so. But with the launch of Facebook Places to its 500 million members, that landscape has now shifted dramatically and immediately.
The Places application allows individual's to "check in" at a physical location which then broadcasts that location on Facebook and other social networks.
Facebook sets as a default that user's location broadcasts to "friends only." But, a user of Places may publicly "check in" any of his or her friends at a location without that friend knowing or approving it. Each Facebook user must manually adjust their settings to prevent friends from "checking them in" at physical locations.
If your employees' location is sensitive while on the job, we suggest a thorough review of the features of Facebook Places as well as other location-based social platforms such as Foursquare or Gowilla. These applications are growing quickly.
Assess the potential risks for your employees, customers or your organization. Consider too how broadcasting a location may reveal information that may be unwise for a manager or the organization to posses.
At the very least, advising employees of how to adjust their privacy settings to prohibit unintended "check-ins" by friends may be good protection for both of you while they are on the job. See the resource links below for how to control Places broadcasts.
More to come.
[ Resources for you ]
Facebook's Places Blog Post: Who, What, When, and Now...Where