Law Tips: More Ways Technology Has Changed Employment Law

How has an employer’s obligation increased with speedier electronic reporting capabilities? Which side has the tactical advantage in electronic communication? What are the causes of action available to employees based on modern technology?

Donna Panich, our Law Tips employment law contributor, is in the midst of sharing her expertise on several technological advancements that are impacting her area of practice. (Scroll down for her tips from last week.) Following are other interesting challenges that have emerged during Ms. Panich’s 35 years of advising employment law clients:

The Tactical Advantage of Asymmetrical Discovery Has Been A Powerful Weapon For The Plaintiff’s Bar

The proliferation of electronically stored information (ESI) has provided the plaintiff’s bar with a powerful weapon. Up to this point, most of the data in employment cases has been in the hands of the employer. The burden associated with the preservation, collection, review and production of that data has sent many an employer to the settlement table. If the plaintiff is able to assert a colorable claim of spoliation, the weapon becomes that much better.

Proposed amendments to the Federal Rules of Civil Procedure may have some impact on tempering the risks of spoliation. The advent of social media has created a source of ESI which may increase the amount of ESI controlled by plaintiffs and thus reduce the incline on the playing field. However, the tilt remains and will likely remain until (a) courts actively enforce the limits on discovery currently in the Federal Rules, (b) litigants and the courts recognize that the requirements of Rule 34 are not met by a discovery request for all documents hitting upon a set of search terms, and (c) everyone places greater emphasis on the speedy resolution of the merits rather than fulsome disclosure of “all” ESI on any topic remotely related to the litigation.

Employer Obligations, Investigations Of Failures To Meet Those Obligations, And Class-Based Litigation Have Expanded To An Enterprise Level

In a paper world, decisions were usually localized. Analysis of employment statistics was painfully slow. Cross country incidents were difficult to track. Electronic databases have changed all this. Not only is centralized control of decision making much easier, documentation of those decisions, and data relating to all those decisions, is centralized as well so that collection of the information, and tracking information is much easier.

As a result, the Occupational Safety and Health Administration tracks every citation issued at every facility of the employer or its affiliates. It can determine whether any patterns exist. It can escalate the severity of a violation to repeat or willful without regard to where a prior citation had been issued.

EEOC is able to conduct analyses across the entirety of a company’s workforce, as is plaintiff’s counsel. Moreover, an employer’s claim that producing data on a broad, enterprise level is overly burdensome is less appealing when the data can be requested and obtained in the form of an electronic report requiring only a few hours of programming time.

Given the trend in enterprise-wide investigation and litigation, employers may wish to emphasize localization of decisions while concurrently asking in-house counsel, or human resources, under the guidance of its counsel, to look at decisions on a broad basis. If patterns of adverse impact or underutilization are detected, corrective action may avoid broad liability. Likewise, it is imperative that the company maintain adequate inter-facility awareness of legal developments. Ignorance regarding problems at a sister plant a thousand miles away will not be a defense to a repeat or willful citation.

“Concerted Activity” Is Redefined And Enabled Through Social Media And Email

The National Labor Relations Act protects employee rights to engage in concerted activity regarding workplace issues such as wages and working conditions. Before the advent of electronic communications and social media, concerted activity usually involved employee meetings, strikes, boycotts, picketing, or other physical shows of disagreement, most of which were contained to the immediate environs of the dispute, were limited in message content, and largely involved only unionized workplaces. Now, employees can express disagreement with their wages and working conditions with little effect or inconvenience and can reach a diverse, widely scattered audience by using social media. Moreover, most of the cases coming before the National Labor Relations Board have arisen in non-unionized work environments.

A union seeking to organize a group of employees has traditionally been barred from directly communicating with employees on the employer’s work site. However, recent rulings from the National Labor Relations Board, as well as proposed new election rules, would give the union access to the target employees via email -perhaps even through the employer’s own email system.

Because of these new realities, most employers are actively rethinking and revising their social media and computer usage policies, unions are developing new organizing strategies, and plaintiff’s counsel should always consider the potential new cause of action available to an employee who is discharged or reprimanded based on the content of his or her communications.

Thank you again to Donna Panich for providing her dynamic update on technological advances impacting employment law. Her presentation on this topic is a segment of the seminar entitled, 54 Practical Issues, Tips and Traps for Employment Lawyers check out the On Demand Seminar or Video Replay Seminar by Clicking Here.

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About our Law Tips faculty participant:
Danuta (Donna) Bembenista Panich, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, has a varied practice dealing with all aspects of labor and employment law. However, since 1995, she has focused primarily on defending employers – including many of the nation’s largest companies – in class actions, multi-plaintiff and collective actions, pattern and practice claims, and other “bet the company” matters such as investigations of catastrophic industrial accidents. Ms. Panich has dealt extensively with electronic discovery and litigation preparedness. Since she joined Ogletree Deakins in 2007, she established, and has since served, as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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