The Written Policy Your Business Needs But Probably Lacks

Effective employers balance employee morale and work efficiency. If you are reading this post, you are probably one of those employers. You want to keep your talent happy. You want to be flexible. You are willing to provide frequent and timely input and feedback. You want to give your employees the resources they need to succeed without tethering them to the office.

 

In an effort to find and maintain the elusive work-life balance for their employees, many employers increasingly rely on “bring your own device” (“BYOD”) to work policies. BYOD workplaces allow employees to utilize their personal devices to conduct their employer’s business. These devices typically include smart phones, laptop computers, external hard drives, and other hardware capable of transmitting and storing electronic information.

 

Allowing employees to use personal devices to conduct business has several advantages. In addition to realizing the cost savings in not buying additional equipment for employees, employers can stay in touch with their employees in remote locations. Employees with children can perform essential tasks at home. Commuters can work while in transit. 

 

Before you allow your employees to use their personal devices for work, however, you should recognize that BYOD practices are not without problems. To reduce risk, employers who allow employees to use their own devices must have clearly written BYOD policies. Your BYOD policy should be narrowly tailored to the specific circumstances of your business, yet broad enough to protect your confidential and proprietary information – all without unnecessarily infringing on your employees’ legitimate expectations of privacy.

To strike this balance, an employer’s BYOD policy should clarify that:

·      communication sent over the employer’s server is subject to monitoring by the employer;

·      personal devices will be configured by the employer to work with the employer’s information systems;

·      no employer information may be stored on any device or platform (hardware or cloud-based) without prior approval by the employer;

·      personal devices will be password-protected;

·      passwords will be changed periodically;

·      the employer has the right to over-ride employees’ password with “administrator” passwords;

·      personal devices will have “lock” features triggered by inactivity;

·      employees consent to complete wiping of data in the event of a lost device;

·      non-work related communication using the employer’s information systems is prohibited and may result in disciplinary action;

·      employees must return all employer information in any format, including any information stored on any personal devices, to the employer upon separation;

·      employees are prohibited from using their devices to violate the employer’s policies, including any anti-harassment policies, and are otherwise prohibited from participating in any unlawful activity using the employer’s resources;

·      in keeping with the Fair Labor Standards Act (“FLSA”) and any related wage/hour laws, non-exempt employees are required to record and report any out-of-office and work-related activity conducted remotely in excess of forty (40) hours per week.

In addition, a BYOD policy should specify that any employee who uses his or her personal device in violation of the BYOD policy recognizes that such a violation:

·      constitutes potentially irreparable harm to the employer;

·      may not be remedied by a monetary award of dollar damages;

·      will result in the employee consenting to the imposition of injunctive relief, including, without limitation, a court of competent jurisdiction issuing a temporary retraining order and/or preliminary injunction enjoining and retraining the employee from taking any further action against the interests of the employer;

·      will result in a forfeiture of the device used and a review of the device by the employer, the employer’s legal counsel, or a court of competent jurisdiction to examine to extent of the breach of the BYOD policy.

As with most policies, it is wise to have an attorney with relevant legal experience in the BYOD space draft a policy narrowly tailored to needs of your business. If you allow your employees to conduct your business using their personal devices, contact an attorney and implement a written BYOD policy as soon as possible.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

New York's Paid Family Leave Benefits Law Takes Effect Soon

New York State’s Paid Family Leave Benefits Law (“PFLBL”) takes effect January 1, 2018. Although some companies have been preparing for this employment law development for some time, every employer with at least one employee should review the PFLBL's basics.

Job-protected, paid family leave (“PFL”) benefits will increase in four phases. Employees will be entitled to a number of paid weeks off at increasing percentages of the lesser of their average weekly pay or New York State’s average weekly wage as follows:

·      January 1, 2018: Eight weeks; lesser of 50% or 50%;
·      January 1, 2019: 10 weeks; lesser of 55% or 55%;
·      January 1, 2020: 12 weeks; lesser of 60% or 60%;
·      January 1, 2021: 12 weeks; lesser of 67% or 67%.

The PFLBL supplements, and does not replace, the the Family Medical Leave Act (“FMLA”). Employees at companies with 50 employees or more who have worked for a year or more may take more than 12 weeks. An employer need not pay that employee for such additional time under the PFLBL. Employees remain free to use paid time off, if it is available, rather than PFLBL leave, if they so choose.

If a full-time employee has worked for at least 26 consecutive weeks, or if a part-time employee has worked for at least 175 days, that employee may take PFLBL leave related to:

·      care for family members with serious health conditions;
·      bonding with a new-born child during the baby’s first year;
·      adoption or foster care placement; and
·      certain exigencies related to a family member’s military service.

The PFLBL does not provide for paid time off for an employee’s own medical condition. New York’s short-term disability scheme covers those situations.

Employers may begin collecting weekly employee contributions beginning July 1, 2017. Employees may not opt out. Employers should consult with their disability insurance carriers, review paid time off policies with their employees, post all necessary legal notices, and, as always, consult with legal counsel experienced in this area to prepare themselves for these changes.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Noncompetes Are Poison

Noncompete agreements poison our economy. 

That is the view of Harvard Law grad and Op-Ed Contributor Orly Lobel in a thoughtful piece published recently in the New York Times. 

Analyzing data compiled by the Treasury Department, Ms. Lowry notes that noncompetes were "once reserved for a corporation's most treasured rainmakers," but are now "routinely applied to low wage workers" like warehouse employees, fast-food workers, and even dog-sitters. She claims that noncompetes stifle performance, and reduce employee motivation and entrepreneurship. 

Her solution? Ms. Lobel argues that, at a minimum, every state should ban noncompetes purporting to restrict:

  • low-wage workers;
  • workers "in occupations that promote public safety and health"; and 
  • workers who were terminated without cause.

In New York State, noncompetes are enforceable against employees only to the extent they:

  • are no greater than necessary to protect and employer's legitimate business interest;
  • do not impose undue hardship on the employee;
  • do not cause injury to the public; and
  • are reasonable in both geographic scope and duration.

Regardless of whether noncompete agreements poison our economy, they appear to be here to stay in New York State. Although New York courts strongly disfavor enforcing noncompetes, an employee is well-advised to review with counsel any such agreement before signing. Even if you feel compelled to sign one for fear of losing your offer of employment, look for advice from an attorney with experience in this area prior to signing.

 

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

(Don't) CLICK HERE - Another National Phishing Scam Offers Another Lesson in Data Security

“Don’t open that Google Doc ‘I’ sent you!” How many texts like this did we see this week?

Another national phishing scam, this one involving Google Docs, reminds us to be vigilante regarding our cyber data. Mass media outlets and specialty trade journals agree that this attack was particularly sneaky. Although Google claims the attack affected 0.1 percent of Gmail users, this amounts to 1 million accounts.

Cyber attacks and phishing scams are annoying to individuals. But they can cripple you business. If personally identifying information (“PII”) or other statutorily protected data in your company’s care is compromised, individual employees and companies alike can be sued, fined, and in some cases, criminally prosecuted.

Increasingly, companies store their information utilizing remote networks of servers (often referred to as “The Cloud”). This increases the risk of cyber attacks. As I previously noted in an earlier post phishing scammers seem to be moving “down the food chain” by attacking smaller companies with less sophisticated defense networks.

Now more than ever, small to mid-size businesses should consider drafting, implementing, and testing data breach incident response plans. No one can avoid a cyber attack. But a data breach incident response plan is a cost-effective measure to reduce the adverse impact a cyber attack may have on your business.

Typical elements of an effective data breach incident response plan include the following:

Before the Cyber Attack

·      Establish an Incident Response Team;

·      Include at least one manager or officer on the Team;

·      Include a member of the company’s IT group on the Team;

·      Identify legal counsel to assist your Team with its response;

·      Identify a third-party IT vendor to assist with breach analysis;

·      Identify an identity-theft and credit monitoring vendor to assist;

·      Print and circulate written copies of the Plan to all employees.

Within the First 24 Hours of the Cyber Attack

·      Notify all members of the Team;

·      Record the date, time, and place of the attack – document everything;

·      Secure the premises;

·      Identify scope of breach;

·      Determine (with counsel) whether to notify law enforcement;

·      Identify (with counsel) which state laws apply.

Within the First 72 Hours of the Breach

·      Different states have different notice requirements. Accordingly, some affected persons must be notified right away;

·      Most states require potentially affected persons to be notified, too;

·      Notify government agencies as required by each jurisdiction implicated;

·      Supply government agencies with the “notices of cyber attack or data breach” already provided to those affected;

·      Notify and engage identity-theft and credit monitoring vendor.

Within the First Nine Months

·      Follow-up with credit monitoring vendor on status;

·      Maintain toll free number to field inquiries from affected person;

·      Review IT protocols to reduce risk of recurring breaches.

Although no one “template” fits all data breach notification scenarios, a typical notification letter will include:

·      An opening paragraph stating plainly what happened;

·      A brief statement expressing regret and demonstrating empathy;

·      A brief description of your action plan, including phone numbers for affected persons to use in order to get more information;

·      NOTE: Draft these letters mindful of your potential duty to provide them to government agencies and/or the authorities.

Although cyber attacks and data breaches are common, they are highly fact-dependent. No two breaches are exactly alike. It is critical to consult with legal counsel experienced in this area, ideally before, but certainly after, a cyber security or other similar data breach.

 

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Don't Be Evil? DOL Charges Google with "Extreme" Pay Discrimination

The federal government has charged tech giant Google Inc. of gender pay inequity on a massive scale. After reviewing a sampling of HR data obtained from the company, the Department of Labor accused Google of "extreme" discrimination against female employees. The DOL cited a "systematic" gap in pay between men and women at the company and filed a lawsuit to require Google to provide additional compensation data and documents as part of a broader inquiry into the company's employment practices.

It is illegal for employers to discriminate because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. In addition, employers are prohibited from discriminating against employees because they have inquired about, discussed or disclosed their compensation or that of others, subject to certain limitations. 

If you think you have been discriminated against on the basis of your gender, you should contact experienced employment law counsel as soon as possible to better understand your legal options.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

May a Company Reject A Job Applicant Based Solely On Age?

May a company refuse to consider hiring a job applicant based solely upon age? RJ Reynolds Tobacco Co. thinks so, and has asked the U.S. Supreme Court to condone such behavior in a dispute involving a 49 year-old job applicant it rejected in 2007

Richard Villareal applied for a sales manager job with Reynolds in 2007. At that time, Reynolds had retained a subcontractor to review all job applications. Reynolds' subcontractor discarded Villareal's resume solely because he was older than 35. It also discarded the applications of almost 20,000 other older applicants based on their age. Of the roughly 1,000 sales managers the tobacco company hired between 2007 and 2010, only a dozen or so were over the age of 40. After a whistleblower emerged in 2010, Villarreal sued.

The U.S. Supreme Court has granted cert and will soon hear the case. Employment attorneys around the country are watching.

If you believe you have been denied employment based solely on your age, contact experienced counsel to discuss your rights. In the meantime, check back with kevinburkeattorney.com for updates on the Villareal matter.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

How to Protect Your Business Without Noncompete Agreements

Courts disfavor noncompete agreements. Smart companies recognize this. Entrepreneurs and business owners hoping to reduce the threat of key employee defections and client poaching would be well-served to read this thoughtful article by Huffington Post contributor Nina B. Ries.  

Among attorney Ries' suggestions for protecting your business assets without a noncompete agreement:

  • restrict moonlighting by current employees;
  • limit access to confidential information; and
  • conduct exit interviews involving the accounting for, and return of, company property.

Ries also suggests having employees sign less restrictive non-solicitation and nondisclosure agreements.

The best way to protect your information is to understand the law concerning intellectual property and trade secrets in your area. Contact legal counsel with employee mobility experience to ensure that your policies are up to date and are enforceable in your state.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Do Not Tolerate Sexual Harassment in the Workplace

It seems that sexual harassment is always in the news.  Do not tolerate harassment at work. Inappropriate behavior in the workplace is worse than annoying or exhausting. It is unlawful.

Sexual harassment is prohibited under the New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964. Your employer is legally prohibited from using sexual conduct as a basis for any employment action. Even if no adverse employment decision is made based on your reaction to an unwanted advance, employers are prohibited by law from subjecting you to a hostile work environment.

Sexual harassment can come from anyone in the workplace. This includes owners, managers, and co-workers. In some instances, it can include clients, customers, or vendors. The wrongdoer can be a man or woman. It need not involve harassment of the opposite sex.

If you believe you've been sexually harassed at work, report the harassment to a supervisor. Make sure your complaint is documented. Follow-up to make sure appropriate action is taken. Do not ignore the problem. Do not feel pressured to "go along." If the problem persists, contact experienced counsel regarding your next options.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006