Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘privacy’ Category

Walmart patents technology to eavesdrop on workers

Monday, July 16th, 2018

Walmart has just patented surveillance technology which would allow it to eavesdrop on worker’s conversations and help monitor them to ensure they meet the company’s “performance metrics.”

The “Listening to the Frontend” system would collect audio data from the stores’ cashier areas, allowing it to pick up everything from beeps to conversations with customers to, potentially, conversations between workers.  It would then analyse the sounds to ensure the employee is working efficiently — and help Walmart achieve “cost savings” and “guest satisfaction.”

“We’re always thinking about new concepts and ways that will help us further enhance how we serve customers,” a Walmart spokesperson told Buzzfeed News, who first reported the story. “We don’t have any further details to share on these patents at this time.”

It’s unclear when, or even if, Walmart will ever actually introduce this technology. But it is another example of how corporate giants are using technology in an attempt to track and control their workers — despite evidence showing that excess surveillance makes workers feel nervous and actually ends up slowing them down.

Amazon — whose profits topped $3 billion in 2017 — recently patented wristbandswhich can precisely track where its warehouse workers are, and point them in the right direction via vibration. In 2013, the Financial Times also documented how Amazon workers’ personal sat-navs set target times for them to shelve packages, and reports them to management if they’re behind schedule.

The surveillance isn’t just relegated to Amazon’s warehouses either. A 2015 New York Times story documented a similar Big Brother-esque atmosphere at Amazon’s corporate headquarters in Seattle. In a rare internal email, CEO Jeff Bezos pushed back on the article, saying it “doesn’t describe the Amazon I know or the caring Amazonians I work with every day.”

Uber’s instant rating system is similarly stressful on workers, punishing drivers who fall bellow a 4.6.

Unsurprisingly, being constantly tracked and asked to meet robot-like targets is having a devastating effect on workers. The British GMB trade union previously warned that the kinds of “regimes” Amazon employers worked under were causing them to have musculoskeletal problems as well as stress and anxiety.

“It’s hard, physical work, but the constant stress of being monitored and never being able to drop below a certain level of performance is harsh,” Elly Baker, GMB’s lead officer for Amazon, said. “You can’t be a normal person. You have to be an above-average Amazon robot all the time.”

This article was originally published at ThinkProgress on July 12, 2018. Reprinted with permission.

About the Author: Luke Barnes is a reporter at ThinkProgress. He previously worked at MailOnline in the U.K., where he was sent to cover Belfast, Northern Ireland and Glasgow, Scotland. He graduated in 2015 from Columbia University with a degree in Political Science. He has also interned at Talking Points Memo, the Santa Cruz Sentinel, and Narratively.

“Ban the Box” Continues to Take Off

Thursday, June 11th, 2015

erik idoni

Yesterday, June 10, 2015, the National Employment Law Project and The Leadership Conference on Civil and Human Rights called on President Obama to “Ban the Box” and give everyone a fair chance to get a job by pushing background checks to later in the hiring process and banning the check-box on job applications asking if a person has a criminal record. That was the latest step in the “Ban the Box” campaign that on June 1 saw Ohio become the 17th state to “Ban the Box”, and expects to see Oregon join them soon.

An estimated 68 million Americans have a criminal record, about one in four and more than the total population of France. On top of that, only around half of the FBI’s records are up-to-date, meaning an arrest without a conviction can still negatively impact employment chances due to an incorrect record. Not only do 92% of employers run background checks, but more than 800 occupations ban felons via the law or licensing rules. Furthermore, only 40% of employers interviewed said they would “definitely” or “probably” hire someone with a criminal record. Furthermore, the inability of ex-felons and formerly imprisoned Americans to get a job is costing the economy an estimated $57 to $65 billion per year in lost output.

The “Ban the Box” campaign’s purpose is to give people with criminal records a fair chance at getting a job. By eliminating background checks until later in the process, every person would have the chance to demonstrate their qualification without the shadow of a criminal record hanging over them. This can be a serious help to people with criminal records as 76% of hiring discrimination takes place when reviewing a job application.

The campaign took its first major step back in 1998 when Hawaii became the first state to pass a “Ban the Box” law. However, the term “Ban the Box” wasn’t coined until All of Us or None started using it in the early 2000s. Since then, “Ban the Box” has taken off, with four states passing “Ban the Box” laws already in 2015. While most states’ “Ban the Box” laws only apply to public employers, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, along with cities like Baltimore, San Francisco, and Washington, D.C., have extended the laws to private employers.

These policies have been effective as well. After Minneapolis “Banned the Box” over half of applicants with convictions were hired, 10% of the people hired by the City of Atlanta between March and October of 2013 had records, and the number of people in Durham County, North Carolina with criminal records that were recommended for hire nearly tripled in the two years since they “Banned the Box”. Employers don’t regret these decisions either as a study by Evolv found that employees with criminal records end up being 1% to 1.5% more productive than those without criminal records.

There are many ways for people who want to help “Ban the Box” to get involved. The National Employment Law Project has plenty of information on the campaign as well as campaign strategies, model policies, and much more. People can also visit the “Ban the Box” campaign website to take the pledge, get information on the campaign, and find tools for a successful campaign. Similarly, All of Us or None has their own toolkit for people to use on their campaign as they try to make Ohio the 17th state out of 50 to “Ban the Box”.

In the interest of both strengthening the economy and giving more qualified individuals a fair chance at getting jobs, we here at Workplace Fairness hope to see “Ban the Box” continue to thrive.

About the Author: The author’s name is Erik Idoni. Erik Idoni is a student at the George Mason University School of Law and an intern at Workplace Fairness.

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Protected freedom of speech for workers on Facebook?

Friday, November 12th, 2010

Image: Richard NegriIn an era where it’s not unheard of for an employee’s use of social media to lead to their dismissal, one question that comes up more frequently these days regarding a worker’s rights is “Can I say that on Facebook?

This week, the National Labor Relations Board alleged that a Connecticut company acted illegally when they fired an employee after she bad-mouthed her supervisor on Facebook. The labor board charged that the company wrongfully denied the employee union representation during an investigatory interview, as well as “maintained and enforced an overly broad blogging and Internet posting policy.”

CAUTION: This Is Not A Green Light To Trash Talk Your Boss on Facebook

This complaint issued by the NLRB should not be interpreted to suggest that anything employees say on Facebook about their employer will be protected. It doesn’t do that.

Although the National Labor Relations Act bars employers from penalizing their employees for talking about workplace conditions (like wages) or forming a union with their coworkers, as noted on the NLRB’s own Facebook page and on Mashable, Facebook comments can lose protected status depending on a number of factors.

  1. Where the discussion takes place
  2. The subject matter
  3. The nature of the outburst
  4. Whether the comments were provoked by an employer’s unfair labor practice

Although workers’ speech online is still a relatively new medium for the labor board, their position on this case presents the real possibility that workers won’t have to fear speaking up, being heard, and communicating about work issues on Facebook in the future.

As The New York Times‘ Steven Greenhouse notes:

This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.

Implications for Online Organizing

Educating, mobilizing and organizing workers online is what our union does to assist traditional boots-on–the-ground union work. There are many tools that enable us to do our work as online organizers, and we certainly rely heavily on social media.

Why? Because with social media platforms like Facebook, we can help establish an environment where workers can freely talk to one another about their issues at work–whatever they may be. This is not so different than member-to-member organizing, except it takes place online and doesn’t require workers to be face-to-face in order to connect with one another.

The Bottom Line: As this investigation moves forward and the January 2011 hearing draw closer, we anticipate push back from the opposition. However, whatever happens, the outcome of this case will go a long way toward defining what employees can and cannot do when it comes to online communications and airing their work issues with their co-workers on Facebook.

This article was originally posted on SEIU.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

It's Unanimous: Supreme Court Permits Search of Employees' Electronic Communications

Thursday, June 24th, 2010

Molly DiBiancaIn Quon v. City of Ontario, the 9th Circuit held that a California police department’s review of an officer’s text messages was an invasion of the officer’s right to privacy. In a unanimous ruling issued yesterday, the U.S. Supreme Court overturned the Quon decision and ruled that the police department’s review of the provocative text messages sent by the officer to his wife and to his mistress from his employer-issued pager, did not constitute an invasion of the officer’s privacy. (Link to the full opinion in City of Ontario v. Quon).

For employers, the key component of the decision is the Court’s focus on the fact that the police department-employer’s review of the messages comported with its policy and was conducted for a legitimate business reason. The department’s policy provided that messages would not be reviewed unless the employee went over the allotted monthly usage. In Quon, the officer had exceeded the monthly limit and the department reviewed the messages to determine whether the overages were work-related. Officers were responsible for costs incurred for non-work-related messages if they went over the monthly limit.

The 9th Circuit ruled that this review constituted an unreasonable search and seizure in violation of the Fourth Amendment. That decision was based largely on the fact that the officer’s supervisor had told the officer that messages were never reviewed by the department. The federal appellate court found that, because he’d been permitted to use the pager for both personal and work-related use, the officer had a reasonable expectation of privacy in those communications.

This important decision is the Supreme Court’s first in the area of an employer’s right to monitor the electronic communications of its employees sent and received during working time or with work-issued devices.

The decision was not a free-for-all pass for employers who want to review employees’ electronic messages. The Supreme Court warned employers of the possibility that an expectation of privacy may exist in certain circumstances. Interestingly, the Court noted that the expectation of privacy may exist due to to the pervasiveness of electronic communications. Justice Kennedy, writing for the Court, explained that “cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”

But the Court also recognized that the pervasiveness of cellphones and other electronic-communication devices, has also driven down the cost of such devices, making them “generally affordable.” The low cost of electronic-communication devices, the Court found, supports the argument that there is a very low or no expectation of privacy because an employee who needs a cellphone for personal use can buy one and avoid having to use the work-issued device for anything other than work-related communications.

The decision is a critical one for employers who want to ensure employee compliance with company rules and policies without violating the employee’s privacy rights and, in turn, exposing the organization to legal liability. The Quon opinion has two key components for employers:

1. Any workplace monitoring must comply with the employer’s policy—if you don’t have a clear policy, now is the time to get one; and

2. A search of electronic communications should not go beyond what is necessary to accomplish the legitimate business purpose behind the policy—use the least intrusive means possible to make the determination at issue.

About The Author:

Margaret (Molly) M. DiBianca maintains a legal practice consisting of equal parts litigation and client counseling. She represents employers in a variety of industries in employment rights claims, discrimination matters and equal employment disputes at the state and federal court level.

What Are the Biggest Taboos at Work?

Monday, October 5th, 2009

Last week, I was watching George Carlin on HBO. I started thinking about his famous list of the seven things you can’t say on television. So this week I’m going to present the Workplace911 variation on Carlin’s list — a list of five taboo words for today’s workplace. 

The first taboo in today’s workplace is the word “felony.” Corporations don’t like prison records. However, ex-offenders don’t need to worry too much, because this will change for two reasons. First, the dramatic increase of executives who visit the big house. If these guys keep getting arrested, every head honcho is going to have a rap sheet, and they have to work somewhere.

OK, Martha Stewart hasn’t gone out and hired a bunch of her former prison bunk mates to work at her company. But she has been speaking out about ex-offenders as potential contributors to society. And over time this will have an impact. That leads to the second reason why some of the sting may come out of the word felony at work. Though there are 44 million Gen-Xers in the workforce, they are greatly outnumbered by the 76 million baby boomers who will start planning for retirement in the next couple of decades. We’ll have to run our economy while millions of workers worry more about weekends and Winnebagos than their work. Something’s got to give, and the modern workforce is going to have to get creative to find new workers. I predict that with more than two million incarcerated in the U.S. and a dwindling supply of workers, ex-offenders will become more common around the office.

The second taboo at work is not a word but an acronym: “TMI” — too much information. This can apply to all manner of information, but of particular note is the often uncomfortable revealing of personal medical situations. People don’t want to hear about your medical challenges, your itchy rash, your surgery or your prostate, etc. Yes, the practice of avoiding running your mouth and disclosing TMI rules at work today.  Find a therapist, a mate or a relative who really cares about the medical details of your life. But don’t share it with your coworkers, because hearing about those things makes them uneasy and can make work an uncomfortable place to be.

The third taboo at work revolves around the word “relationships.” Don’t go there. People don’t want to hear about your marital or relationship problems. Through the years I can’t believe how many people have shared intimate information about their relationships with me. Call me a prude, but I think pillow talk should be reserved for conversations that actually take place over pillows.

The fourth taboo is the word “why.” As in “Why did you…” “Why do we…” Most corporations don’t take kindly to being asked this simple question. Sure, there are bosses who can handle it. I just think that they are rarer than most people think. Sometimes it’s better to just bite your tongue and forge ahead with an assignment, even if you’re not totally sure about the outcome. People who constantly question the worth of a project or a boss’s decision often get tagged as malcontents. So be careful when you drag out the “W” word.

And finally, the fifth taboo — “bravado.” 

Most of us learn at a very early age that we are never to show weakness or vulnerability at work. Bravado is the way; do what you can and fake what you can’t. I personally believe that the lack of vulnerability weakens organizations because it prevents real connection and real interactions between people.

If I had a magic wand I’d hope that we could all do a much better job of being more vulnerable at work. Sure it’s tough, but isn’t it time that we all brought a bit more humanity to our jobs? And what better way is there to do this than being genuine and vulnerable with the people we work with? So stash that bravado and learn to show a softer side — it will humanize you in the eyes of your coworkers and probably encourage them to do the same.

My five taboo words at work — felony, TMI, relationships, why and bravado. I’d love to hear yours.

Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.

Your Rights Job Survival The Issues Features Resources About This Blog