Just when we wanted something – anything – to divert our attention from the Casey Anthony coverage, word leaked this week that Dallas Cowboys wide receiver Roy Williams has just sued his ex-girlfriend for the return of a $76,000 engagement ring that he sent with a recorded marriage proposal – – by mail.  By mail?   Really?   His signed affidavit does not elucidate how the proposal was “recorded”.   Was it an audio tape?  A YouTube video?   I suppose it could’ve been a quick tweet, since “Will you marry me, and by the way please sign the return receipt so I know you got my $76,000 ring” still falls well within Twitter’s 140-character limit.

Where am I going with this?   Social media has taught employers many things.  About the need to establish particular policies, the care that should be taken when searching for background information on current and potential employees (more on this on Monday), and generally the concerns over making rash decisions based on an employee’s social media post.   But a much larger point should not be lost – the art of communication.

The success of your business still depends on the ability to communicate, both with the workforce you employ and with those clients and customers you hope will want your services or products.    Social media remains a simple and informal way of reaching out to someone to make a proposal or attempt to close a deal.   Yet, the benefits of social media should not completely replace your employees knowing how to engage in an in-person communication or simply picking up a phone.

Employer Take Away:   What should you as an employer take away from this development?   

Good client and customer service comes from good, old fashioned communication.  Have a nice ring to it?  I have commented many times about how important it is for you (with the aid of counsel) to establish social media policies and best practices that comport with the myriad of laws that are now being applied to the social media context.  But do I also think it is vitally important as well that you conduct appropriate trainings to teach your employees, particularly your supervisors and those who regularly communicate with the outside world, how to properly communicate and develop relationships with people to help lead your company?    I do.

The workplace continues to get smarter and more versed on its rights.   The million dollar question is whether that leads to a greater number of lawsuits.   It seems that employees have potential counsel everywhere these days – an attorney on every block and around the Thanksgiving table.   Social media and the Internet generally (often through recent government initiatives) have also made it easier for employees to learn about and understand their rights in the workplace.

The next step in the evolution has arrived.    The United States Department of Labor (“DOL”) has just made available a free app for smartphones that allows employees to record the hours they work for an employer, to calculate the amount of money they may be owed, and to even determine the amount of overtime pay to which they may be entitled.   The free app is currently compatible only with the iPhone and iPod Touch, though the DOL is expected to develop versions for other platforms soon.   (You can view the new app by going to the DOL’s website.)

The DOL touts the significance of this new technology, noting that employees can now keep their own records instead of having to rely on employer’s records.   I may be missing something, but when were employees forced to rely solely on an employer’s records?   When were employees prohibited from keeping track themselves – on the draconian writing tablets known as paper – of their own work hours?  

Presumably, the DOL’s new app will make it easier for the DOL to investigate wage and hour issues by allowing it to look at and rely on the information contained in the form that it has now created.   Yet, the new app will arguably lead to more wage and hour lawsuits by employees, and, in fact, this new wage and hour calculator has the potential (1) to only tell half the story, since the app does not appear to allow for the possibility of “calculating” whether one is properly classified as “exempt” from certain wage and hour obligations, and (2) to be relied upon too much, since an employee’s own calculations and assumptions may be wrong, or, for the most cynical, false.

Employer Take Away:   What should you as an employer take away from this development?   

The latest example of technology infiltrating the workplace serves to highlight two important points for you to remember:   First, the mere fact that employees may be keeping track of their hours remotely illustrates the difficulty that employers now have in controlling or keeping track of employee work time when the employees no longer work within the boundaries of a traditional work day or office space.   Second, the law generally places the burden on employers to document and retain evidence showing the hours worked by their employees.   In light of that, it is critical that you develop policies and usable forms to keep track of employee working time.    Particularly now that your employees can do it so much easier themselves.

The logic is simple:  There continues to be a significant number of employees who have Blackberries, I-Phones, and other similar devices (including many that are issued by an employer).  And, there continues to be a significant number of employees who participate in social media and social networking sites through these devices.   And, despite ridiculous gas prices, we all drive. It should go without saying, then, that a good number of your employees may be engaging in some form of texting or other social media activities while driving. 

It is a truism that texting while driving is a problem.  We see references to it on the overhead electronic signs on the highway, and we read news stories about it on our Blackberries.  Two separate governmental bodies have recently taken up the cause and announced stepped-up efforts to reduce the problem in a way that ultimately will have a big effect on employers.

For one, OSHA’s Assistant Secretary of Labor for Safety and Health recently announced at a symposium that OSHA intended to prevent accidents that are caused by drivers who are distracted while operating vehicles during the course of their employment.   According to sources at the symposium, the Assistant Secretary stated:  “If we find an employer has set up a situation where an employee has a strong incentive or is required to use their phone, and that had resulted in an accident that has any sort of personal damage, those are the first cases we want to take on because we think that message is a strong one.”   While the Occupational Safety and Health Act does not yet contain standards or rules pertaining specifically to texting or social media use while driving, action could be taken under the Act’s general duty clause, which requires employers to provide a safe workplace that is free from recognized hazards.

Similarly, in an industry-specific initiative, the United States Department of Transportation recently proposed a rule banning mobile phone use by drivers of trucks carrying hazardous materials in commerce.    The proposed rule would also prohibit employers subject to the rule from requiring or permitting drivers to do so.   Many jurisdictions already have this type of ban on texting-while-driving in place.

Employer Take Away:   What should you as an employer take away from this development?     

It is not only those of you in the transportation industry, or who employ outside or “traveling” sales people, who must take notice.   As technology has made it easier for your employees to tap into your company’s systems from outside the office and perform work 24/7, particularly on company-issued devices or in company vehicles, it is critical that you consider the following:

             (1)        Consider whether there is a need in the first instance to provide company-issued devices to all employees, and, if so, consider providing hands-free devices to your employees who do have them.

            (2)        Make sure you have a well-defined (and consistently enforced) policy and safety program addressing these issues.

By affirmatively considering these issues now, you may avoid penalties for violations of the law, as well as potential liability to third parties for an act of a distracted employee.

On March 14^th, I blogged about legislation proposed in the State of Maryland (S.B. 971) that would have, for the first time, expressly prohibited employers from requiring current employees and applicants to disclose their “user name or password for any Internet site or web-based account”, unless such disclosure is required for access to the employer’s own internal computer or systems.   In addition, the bill would have made it unlawful to discharge, discipline, or otherwise penalize an employee or applicant (or threaten to do so) for refusing to disclose such information to the employer.

While novel, the issue was apparently not sufficient front burner material prior to the Maryland legislature’s summer vacation.   Although the bill was referred for consideration in March to the Senate Finance Committee, that Committee did not take any action on the bill prior to the legislature closing its 2011 legislative session for the year this month.

Employer Take Away:   What should you as an employer take away from this development?    Although bills are not automatically carried over to the following year’s legislative session in Maryland, this development is worth watching when the legislature does resume.     It is also worth watching whether other jurisdictions follow Maryland’s lead and begin to address legislatively the increase in demand by employers for profile names, passwords and other types of social media information from their employees.   

We will continue to monitor this development and provide updates to you.

One of the continuing themes of this blog has been to address how the new social media world may impact traditional claims in the employment law context.   One of the areas that I suspect will be discussed in increasing fashion is the nature of recommendations and references being made through social media.   Once again, it is the ease and informality of social media that may spark the flame, and it may well be those of you with good intentions who may be the first to be on the wrong end of the discussion.

LinkedIn is just one of the social media sites that allows one to “recommend” someone else, based on a prior relationship or experience with that person.   Since LinkedIn tends to be viewed as more professional and business-related than those sites that are considered to be more “social” in nature, recommendations and references given on that site may hold slightly more clout than posts on other sites.  

What if one of your company’s supervisors gives a positive recommendation through LinkedIn to a former employee?   Perhaps you will face a difficult challenge defending a later lawsuit by that same employee who argues that the asserted basis for the termination in the lawsuit (e.g., poor performance) is belied by the positive recommendation given by the supervisor through the social media site.  And, perhaps a third-party (e.g., subsequent employer) may assert a claim when a positive recommendation by someone in your company fails to disclose that the employee had in fact been terminated by your company due to violent outbursts against a co-worker.

It is simple to click a “recommend” or “like” button, particularly when your intentions in doing so are nothing but good.   It will be up to the courts and, perhaps, governmental agencies to determine the extent to which a duty or relationship arises from those simple mouse clicks, as well as the import of these types of recommendations when considered in the context of today’s social media usage.   But just as it is important to understand that your supervisors and managers act as the mouthpiece for your company when it comes to things like unlawful harassment and discrimination, this area of potential exposure cannot be ignored either. 

Employer Take Away:   What should you as an employer take away from this development?   

Your company should have an established (and consistently enforced) reference policy that expressly applies to social media.    The policy should address the substance of what can and cannot be provided as a recommendation or reference, and clearly identify the only people in the organization who are authorized to give a recommendation or reference.   You also might consider having an employee (or former employee) sign a reference release prior to your company giving any type of information to a third person.