Law Tips: Smoking Guns; 3 Ways Technology has Changed Employment Law

Technological advancements such as email and the virtual office have made life easier, for sure! But these conveniences can carry challenges. Certain areas of law, such as employment law, are impacted directly by these changes in the technology arena. Our latest Law Tips participant, Danuta (Donna) Bembenista Panich, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, is acutely aware of these effects on the practice of employment law. Ms Panich has been an employment law practitioner for more than 35 years and serves as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group. I appreciate her sharing with Law Tips readers background on the “smoking guns” she encounters and the prudent advise she offers employers:

Clearly, the advent of computers and the intemet was technology change of proportions not experienced by anyone who graduated from law school after 1995. But I want to focus here on more recent, incremental changes in technology that have substantively altered employment law, as well as materially affected its practice:

  1. The virtual office
  2. Mobile communications devices
  3. Electronic communication and messaging systems
  4. Social media
  5. Big data (aka centralized databases).

Individually or in combination these advances in technology have affected employment law in at least the six ways discussed here.

I. “Off The Clock” And “Refusal To Accommodate” Claims Are Proliferating.

The virtual office has greatly expanded the ability to work from home and outside regular hours. There are positive effects flowing from the flexibility this creates: flex-time makes employees happier and makes it easier to balance work and family needs. But blurring the lines between workplace and home and on-duty/off-duty time also creates employment issues. The ability to work remotely opens the door to more accommodation claims under the Americans with Disabilities Act. The requirement to work specific hours from the confines of an office is harder to justify in today’s virtual environment. Similarly, that environment makes it far more difficult to argue against flexibility when requested by a pregnant employee, thus increasing the likelihood of Title VII liability. Prudent employers should carefully consider whether such accommodations are workable, rather than assuming they are not.

Because working from home/outside regular hours is difficult to supervise/control, the virtual office, particularly when coupled with mobile communications devices, can result in some challenging off the clock claims under state and federal wage and hour laws. If an employee checks email, or looks at a work order from a car or home, is that time compensable? And if it is compensable, does it prematurely start or extend the continuous workday?

Employers should be very deliberate in establishing and enforcing policies in order to avoid liability for unintended work time. This is particularly true since date and time stamping of all computer-related activities has provided a ready means of measuring time outside the confines of a time-clock. This ability makes proof of lost time far easier and more accurate. It concurrently increases the burden on the employer who must locate, reserve, and produce the data. In combination, these factors enhance the plaintiff employee’s chance to turn his claim into a class or collective action while also improving his or her settlement posture.

II. The Number Of “Smoking Guns” Have Increased Because We Have Changed The Formality And Frequency With Which We Communicate In Written Form.

People treat email, text messages, tweets and other electronic communications as the equivalent of oral communications. They blurt out whatever comes to mind, pay little attention to whom they direct their communications, and fail to proofread.

Electronic communication has also become a substitute for oral communication. People used to “tell” off-colored jokes to a small well-defined group. Now they broadcast them in written form, for endless redistribution. The result? The number of EEO and retaliation cases continues to grow. Nor is there any diminution in the percentage of cases found meritorious. Given the fact that 50 years of operation under equal opportunity laws must have resulted in less, not more, overt discrimination, one can only conclude that the proliferation of smoking guns has contributed to the seemingly inverse results. Employers should redouble efforts to sensitize employees to these dangers, and might wish to consider new rules on appropriate use of electronic communications.

Poor communication hygiene has also dramatically changed litigation practice. The plaintiff focuses on all forms of electronic communication as the richest potential source of helpful evidence – even if there is no true smoking gun, it is a rare case that does not include problematic or at least embarrassing electronic communications. Defense counsel’s witness preparation takes on a whole new dimension of scouring the record for any potentially harmful remark, and ensuring that the witness is cognizant of, and prepared to explain, all his/her linguistic faux pas. (Plaintiffs preparation should be similarly rigorous.)

III. Metadata and Big Data Create Unprecedented Transparency

Metadata – information about information – sometimes makes guilt or innocence irrefutable. For example, in a retaliation claim, the create date of a document in which the plaintiff’s termination from employment is discussed and agreed upon may prove beyond doubt that the decision was made before a protective activity occurred.

Conversely, metadata reflecting deletion of files, access to files, sending files, or the date of certain communications may prove the violation of a non-compete agreement or the theft of trade secrets.

Big data allows an employer to track every moment of an employee’s workday and every activity of the employee. Performance and productivity can be measured with astonishing precision both in and out of the office. The positive effects in the employment environment are that neither employees nor employers can avoid accountability and subjectivity and selective memory are removed from the decisional process. The negative impacts are greater job stress, less interdependence, trust, and loyalty. From the practitioner’s perspective, the results are more claims, more hard evidence, but less institutional knowledge and client loyalty.

Let’s take a break at this point in Donna Panich’s discussion of issues presented to employment law practitioners by technological change. But stay tuned! In next week’s Law Tips she talks about the alterations in such areas as asymmetrical discovery and the tracking of cross-country incidents.

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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.

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