Emerging Issues for Employers
January 29, 2014
Orange County, California
Sponsored by
Moderator:
Monica A. Johnson
Assistant General
Counsel
Ventura Foods, LLC
#IHCC14
Panelists:
Jonathan A. Siegel, Esq.
Michael A. Hood, Esq.
Jackson Lewis P.C.
Siegelj@jacksonlewis.com
Michael.Hood@jacksonlewis.com
2014 ACC-SoCal In-House Counsel Conference
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Bring Your Own Device
(BYOD) – Any Issues?
Your CEO declares, “2014 is about embracing technology .” The Company
immediately sends out a policy requiring all employees, including non-exempt
employees, to use their own smart phone on the job. No word on who pays
for the device. Kevin West, the VP of Sales, works with IT so it is easier for
the sales people in 50 states and Canada to access the Company's CRM
system with critical information about each client. With the technology
changes, Kitty Kardashian, a sales person, declares, “I can access everything
from anywhere. I also save money by using free Wi-Fi when I can and I use
my neighbor’s Wi-Fi since their signal is so strong. I don’t think my neighbor
can see the customer information but it is OK anyway – she is my sister, Kloe”
Kitty Kardashian gets an offer from a competitor and leaves. The competitor
also raids the Company for other employees. Mr. West instructs IT to “wipe
clean” Kardashian’s personal phone. He also wants to search some other
employee’s personal devices. A corporate raiding lawsuit is threatened. You
just got your cup of Green Tea and now ponder the potential issues .
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The “BYOD” Movement
Bring Your Own Device
Rapid increase in the use of mobile devices by employees
– iPhones, iPads, Android devices, etc.
Employees utilize these devices to perform work for the
Company
– Whether company provided or employee’s personal
device
Result: “Dual-Use” Device
– Both personal and company data and activity
– Handling personal matters while at work – more difficult
to monitor
Why are employers doing this?
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Advantages
Expected in today’s fast paced and instant gratification
environment
– Tablets and Smartphones are replacing traditional PCs &
laptops
Cost savings
Improves Employee Productivity and Availability
– Always reachable, employees are familiar with device
functions and capabilities
Mobility
– Work remotely: Home and on the road
Work/Life Balance
Personalization/Familiarity
– Employees know their devices
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BYOD - Risks
Risks
Numerous risks exist which client often do not consider
Compliance and Security two main risks
Who is affected within the Company?
Legal
E-Discovery
Accessing the Device (or information contained therein)
Wage and Hour
International Law Concerns
Employee Conduct
HR
Handbooks
E-Communications/Social Media
Finance
IT
Obligations to protect, safeguard, encrypt
Employees
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Trade Secret Protection, Smart
Phones and BYOD
Risks
Employee uses phone or tablet to receive and store
information
Employee uses phone or tablet to transmit or forward
information
Employee or visitor uses phone to capture information
(including photographs or video)
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Trade Secret Protection, Smart
Phones, and BYOD
Steps to Protect Trade Secrets and Confidential Information
Polices. Employers must consider trade secret protection in their BYOD policies and
BYOD implications in their confidentiality/non-disclosure agreements.
Limitations. Certain types of employees may not be appropriate to participate in BYOD
- Research Scientists
- Executives
- Sales
Software
- Ingram Micro
- AirWatch
- BoxTone
- Fiberlink
- MobileIron
- SAP/Sybase
- Zenrprise
Termination Procedures
- Remote Wipe
- Inspect the phone
- Return of other property
- Signed acknowledgment
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International Issues/HIPPA
 International data privacy requirements –
– BYOD needs to be considered even more carefully when implemented on a
global scale. Cross border transmissions of personal data and different
employment standards from country to country
HIPAA and state data security requirements
– MUST DECREASE EXPECTATION OF PRIVACY. Various federal
and state laws (e.g., HIPAA, GLBA, and state mandates in CA,
MA, CT, TX, NY, OR, MD, and others) regulate and laws to
quickly react to data breaches enhance this concern
 Rogue employee who refuses to return the device
 Diligent employee who happens to inadvertently use an unsecure wireless
network
– Ability to "wipe" a device in the event of a security risk. BYOD
device management vendor/solution, IT capabilities, as well as
communicating the “wipe” possibility to employees and
CONSENT BY EMPLOYEE prior to wipe
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E-Discovery/Wage and Hour
 E-Discovery
– Complicated when some of information may be stored on an employee’s
personal device
– Preservation
– Access
Wage and hour
– BYOD and personal communication devices can further blur the lines
between personal and work time, raising the issue of whether time is
compensable
– Non-exempt employees emailing after hours or on weekends
– Requiring response and interplay with on-call policies
– Business expense reimbursement issues
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9
Record Retention and Destruction
Record retention and destruction requirements
Employee changes his or her device. Tossing the
device in the trash, even if in an environmentally
friendly way, may not be consistent with the
federal or state data disposal laws requiring
personal information be appropriately destroyed.
Labor
– Issues during union organizing and control
– Union employer – duty to bargain with the union on
whether it can implement such a program
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10
New California Disability &
Pregnancy Regs
 Allow support animals in workplace – not just dogs!
 Definitions now include examples – broad examples – of
disabilities and reasonable accommodations
 Expands definition of “health care providers” to include M&F
therapists, acupuncturists, podiatrists, dentists, clinical
psychologists, chiropractors, midwives and PAs
 ERs have “affirmative duty” to provide reasonable
accommodations for the known disability of any EE or applicant
unless it would cause undue hardship
 The Duration of Pregnancy Leave and calculation of PDL has
changed!!!!
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New Agency Activism
 Independent Contractor audits are increasing by federal and state
agencies
– California Labor Code 226.8 penalties are severe
 EEOC’s and DOL’s focus on systemic investigations and
prosecutions continues
– Now account for over 20% of EEOC litigation
– What does this mean for you?
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12
New California Laws
 Increase to State Minimum Wage
– $9.00 starting July 1, 2014 and up to $10.00 per hour by January 1,
2016 (AB 10)
– In July 2014, the minimum salary test for the Executive,
Administrative, and Professional overtime exemptions will increase
from $33,280 to $37,440 annually
– In January 2016, the minimum salary test will increase to $41,600
annually for those exemptions
– Employers with collective bargaining agreements with different
overtime premiums than the Wage Orders should verify union
employees are earning at least 30 percent more than the state
minimum wage
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13
New California Laws
 Expanded Leave for Emergency Rescue and Police Officers
– Employers with at least 50 EEs must provide temporary LOAs
of up to 14 days per calendar year to EEs who serve as
volunteer firefighters, reserve police officers or emergency
rescue personnel
– AB 11
 Time Off for Crime Victims
– Covers time testifying for certain serious crimes
– SB 288
 Time Off for Stalking Victims
– ERs with 25 or more EEs (AB 400)
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New California Laws
 Paid Family Leave
– Extended to grandparents/grandchildren, in-laws,
siblings
New law limits on ER right to recover fees and costs
in wage cases
– Used to be either prevailing party could recover
– ERs now can recover only in the event of “bad faith” (SB
462)
– AB 442 adds additional liquidated damages for violations
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New California Laws
 Military and Veteran Status added to list of individuals protected
from employment discrimination under FEHA
– AB 556, signed October 10, 2013
 Employers cannot ask about expunged, sealed or dismissed
convictions
– SB 530 – allows certain exemptions where information is
required by law (banks and securities) or firearm use required
 “Cool down” and “recovery” periods added to breaks for which
denial results in penalty of one hour’s pay
– SB 435
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New California Laws
New protection for employees who assert rights
under Labor Code.
– Current law only explicitly prohibits discharge and
discrimination
– New law prevents any form of retaliation or adverse
action
– Specifically includes a written or oral complaint by an
employee that he/she is owed unpaid wages
Adds new civil penalty of up to $10,000 per
violation
– AB 263
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New California Laws
 Retaliation and Unfair Immigration Practices
– AB 263 also prohibits employers from engaging in “unfair immigration-related practices”
when an employee asserts protected rights under the Labor Code
– Employer may not threaten to contact, or contact, immigration when an EE complains
about wages or working conditions
– Creates private cause of action
 Similarly SB 666 permits the state to suspend or revoke an employer’s
business license where that employer reports, or threatens to report, the
immigration status of any employee because the employee makes a
complaint about employment issues
– Allows disbarment of attorneys for similar conduct against witnesses or parties
– Covers reports, or threats to report, employees, former employees, prospective employees
or family members, as defined, to immigration authorities
– Can result in criminal prosecution
– I-9 reporting exempted
– New SF flexible workweek law
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Significant Take-Away Points
BYOB – are you prepared?
Independent Contractor status will be hot issue for
2014
Have you reviewed key new California laws for
your operation and the effect of the state minimum
wage changes in 2016?
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11th Annual In-House Counsel Conference
January 29, 2014 (Orange County, CA)
www.acc.com/chapters/socal/
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