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ST0-172 exam Dumps Source : Symantec NetBackup 7.5 for Windows(R) Technical Assessment
Test Code : ST0-172
Test title : Symantec NetBackup 7.5 for Windows(R) Technical Assessment
Vendor title : Symantec
: 108 existent Questions
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Symantec Corp. has announced that Symantec NetBackup 7.5 and Backup Exec 2012 are now available international designed to back agencies of utter sizes seamlessly seriously change and modernize their out of date, complex, and aid-intensive backup approach. additionally, Symantec has moreover announced a partnership with NetApp to resell the brand new NetBackup Replication Director option, enabling valued clientele to unify snapshot and replication management within NetBackup as well as to eradicate the cost and possibility linked to varied backup and healing equipment. Replication Director offers organizations the skill to slit back management fees and complexity with the aid of getting better and managing backup and replicated snapshots from a unique NetBackup management console.
With Backup Exec 2012 and NetBackup 7.5, Symantec gives consumers and companions with a set of top-quality-in-breed options that dispose of the complications of accustomed backup strategies during the past equivalent to complexity, time, and resources required to maneuver the backup system as well because the requisite for multiple point products to ensure a a success backup and recuperation technique.
A fresh Symantec international survey of 1,four hundred IT specialists revealed a requisite for a more recent and quicker approach to backup, with 28 p.c mentioning that they gain an over abundance of backup rig and 72 p.c citing that they might change backup items if their precipitate doubled.
focus on this article
Symantec's 2015 Separation from Veritas could boost safety enterprise
(persisted from Prior half)
NetBackup appliance continues to submit excessive boom in fiscal 4Q15
As we’ve already considered, Symantec’s (SYMC) NetBackup home rig grew through 88% and 46% in fiscal 4Q15 and fiscal 2015, respectively. The recent launch of the NetBackup 5330 rig aided Symantec’s expansion into larger commerce environments and drove expand within the section.
growth within the NetBackup rig market has ensured an expand in Symantec’s PBBA (goal-built backup appliance) revenues. They stood at $417.5 million in 2014 compared to $359.four million in 2013. In April 2015, IDC (overseas facts employer) released its contemporary record, divulging the 2014 annual revenue figures for the PBBA market.
PBBA market crossed the $1 billion note in 4Q14
IDC stated in 4Q14 that the PBBA market broke the $1 billion milestone. This determine is huge given that this market is poised to grow to $four.4 billion by passage of 2018, transforming into at a 5-year compound annual growth cost (or CAGR) of seven.5%.
Symantec led 2014 expand in integrated rig market
In 2014, IDC pointed out that Symantec led the expand in the integrated appliance market with yr-over-year expand of 16.2%. this is more than two times the market expand of seven.9%. even so, EMC (EMC), the chief in the PBBA space, had a terrible boom of two.9%. IBM (IBM), Hewlett-Packard (HPQ), and Quantum are other birthright leading gamers within the PBBA area. as the above chart suggests, among the many accurate five avid gamers, Symantec is the handiest player to expand market share.
however the PBBA market is starting to live four.0% on a yr-over-12 months foundation, it’s open systems that’s starting to live 6.8% annually. built-in home rig are intently built-in with the backup software. it might gain master or media servers constructed into the rig to adapt the stream and backup of facts to other techniques. target appliances are utilized in sync with third-party backup utility. They’re designed to mingle in assorted environments.
within open techniques, it’s the integrated appliances which are growing 25.6% sooner when in comparison to target appliances. Symantec management brought up, “With its built-in home equipment, Symantec NetBackup integrated appliances are addressing the most significant challenges corporation[s] face; confined headcount and supplies.”
in case you’re bullish about Symantec, which you can invest within the know-how opt for Sector SPDR Fund (XLK). XLK invests about 0.forty one% of its holdings in Symantec.
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May 2012THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT:Engineering Practical Employment and Labor Law Compliance SolutionsGarry G. MathiasonMichael J. McGuireGavin S. ApplebyPhilip M. BerkowitzTanja L. DarrowHelena EldemirPhilip L. GordonJacqueline A. GruberBen HuggettEarl M. (Chip) Jones, IIIStacey E. JamesSara B. KalisHenry D. LedermanChris M. LehJohan LubbeCecil A. LynnSuellen OswaldTodd M. Ratshin George M. ReardonMark W. SchneiderPaul D. WeinerDylan W. WisemanJennifer A. YoupaAUTHORSIMPORTANT NOTICEThis publication is not a do-it-yourself sheperd to resolving employment disputes or handling employment litigation. Nonetheless, employers involved in ongoing disputes and litigation will find the information extremely useful in understanding the issues raised and their legal context. The Littler Report is not a substitute for experienced legal counsel and does not provide legal counsel or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute.Copyright ©2012 Littler Mendelson, P.C.All material contained within this publication is protected by copyright law and may notbe reproduced without the express written consent of Littler Mendelson.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. i SECTION /TOPIC PAGETable of ContentsI. INTRODUCTION 1II. BACKGROUND 3A. The Consumerization of Information Technology 3B. Adoption of BYOD Policies 4C. A Cost/Benefit conclusion for Employers 6D. The “Appification” of Corporate Information Technology 7E. Challenges for Employers 8III. DATA-RELATED CHALLENGES OF BYOD PROGRAMS 10A. Information Security Risks for the Employer’s Information 10B. Record Management Laws and Contractual Obligations 13C. The Privacy of Employee Data on Dual-Use Devices 13D. Preserving and Collecting Data from Employees’ Dual-Use Devices for Litigation Holds and Investigations 16E. Protection of Trade secret Information on Dual-Use Devices 24F. utilize of Dual-Use Devices By Contingent Workers 28IV. BEHAVIOR-RELATED CHALLENGES OF BYOD 30A. Performance Management 30B. Equal Employment opening & Dual-Use Devices 30C. Wage & Hour Issues 35D. Workplace Safety and Health (OSHA) 39E. Deploying BYOD in a Unionized Workforce 41F. International Legal Challenges 43V. RECOMMENDATIONS 45A. Implement New Policies 45B. Develop Employee Agreements 49C. Implement Technical Controls 50D. Implement New or Revised Operating Procedures 52E. Training 54F. Risk Management Approach 54VI. CONCLUSION 56 ENDNOTES 57 APPENDIX A: CHECKLISTS FOR DEVELOPING A BYOD PROGRAM 58COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 1 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance SolutionsI. INTRODUCTIONTwo different, but interrelated, phenomena gain been occurring over the ultimate decade that are radically reshaping the travail environment at many companies. The first is commonly referred to as the “Consumerization of Information Technology.” The second is the blurring of the line between travail life and personal life experienced by many employees.One result is the rapid adoption of mobile devices by employees—including iPhones, iPads, Android smartphones, and other devices. Due to their ease of utilize and the functionality enhanced by hundreds of thousands of free or low-cost applications available for these devices, millions of employees gain begun using them to perform work. Recognizing this, a growing number of companies gain struggled to create new policies that allow employees to utilize their personal mobile devices to create, store, and transmit work-related data. These new policies revolve an employee’s personal device into a “dual-use” device, one used for both personal and company data and activities. This trend is generally referred to as “Bring Your Own Device” or BYOD. Some companies even allow their employees to replace their travail laptop computer with their own personal PC, which is sometimes referred to as BYOC.This Littler Report examines the evolution of this irreversible trend and explores the very existent and immediate challenges—both practical and legal—it creates for employers. Thereafter they set forth a sequence of recommendations to assist employers in mitigating these risks as the BYOD movement continues to reshape the workplace and even the concept of “a” workplace. The risks tumble into two broad categories. The first set of risks relates to the fact that a company’s data is now being stored and transmitted using devices and networks the employer may not own or control. This loss of control clashes with the growth over the ultimate decade of government regulations requiring companies to carefully protect the privacy and security of sensitive personal, financial, and health-related data. It moreover poses risks to the protection of a company’s trade secret, proprietary, or confidential information.The second set of risks arises from the repercussion BYOD policies may gain on the deportment of employees. For example, employees may feel the utilize of their own personal devices should not live regulated by company policies on acceptable use, or they may live more likely to engage in “off-the-clock” travail that could either expand overtime expenses or the risk of wage and hour claims. Employees may live more inclined to access in the workplace immediately available images and other material that could live in affray with harassment prevention policies. This is different from the past decade where employers could set limits on usage because they owned and had more control over workplace computers and mobile devices. THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 2 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Many of these risks can live addressed through the utilize of new types of software, typically referred to as Mobile Device Management software, that give employers a measure of control over their employees’ dual-use devices. But this software can only mitigate, not eliminate, these risks. Employers must moreover respect revising or creating new policies and operating procedures, entering into new or supplemented employee agreements, and developing a broad awareness of these issues among their employees. This is more than rewriting the company’s Acceptable utilize Policy. The BYOD movement requires consistency across multiple workplace policies and practices. Several of the risk areas discussed in this Report moreover apply to company-owned mobile devices, but the focus of this Report is on identifying challenges for companies that are pursuing BYOD policies or are reacting to the inevitable utilize of personal devices in the workplace. They focus this Report on the BYOD movement because the light-speed growth of consumer technology, and the lifestyle plus skills of new generations, increasingly are clashing with traditional ways of mitigating employment and labor law risk. A new set of solutions is desperately needed. Many employers gain already built pathways for the BYOD Movement. Littler predicts that within no more than one to three years virtually every employer will gain confronted this issue and a majority will gain harnessed the positive energy and advantages of the Movement while mitigating risk through new technology, revised policies and practices, and employee education.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 3 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions II. BACKGROUND A. The Consumerization of Information Technology The phrase the “Consumerization of IT” was coined in 2001 by researchers at Computer Sciences Corporation (CSC). They used the phrase to picture “the radical reorientation of the IT industry” they saw taking shape in many companies because of the emergence of consumer technologies.1 In 2004, the selfsame CSC researchers published a Position Paper, The “Consumerization” of Information Technology.2 The Paper described their observations and findings about how consumer-based technologies, public (as opposed to private) infrastructure, and applications had the potential to dramatically lower the cost and help the functionality of corporate IT departments. Several of their key findings are highly material to the BYOD discussion; some are even prescient. For that reason, their findings are restated in their entirety below. • Consumerized technologies, infrastructure and applications can deliver dramatically lower costs and equally significant improvements in commerce functionality and ease of use. While most of these technologies gain been on the radar screen for several years, they believe that they are now reaching captious mass, and that organizations requisite a process for adjusting to these developments. • Enterprises gain usually supported IT with private infrastructures. There is growing tension between this traditional sourcing model and the consumerized alternatives that are now available. Over time, comprehensive private IT infrastructures will become a extravagance that even the biggest organizations cannot afford. They believe that consumerization will live the process by which many of these traditional infrastructures are transformed and revitalized. • In many organizations, existing infrastructures and their supporting policies and assumptions gain become a barrier to innovation and a source of increasing employee frustration with corporate IT. The potential conflicts between exciting new consumerized services and ageing commerce infrastructures must live minimized. CIOs must live on the side of change. • Consumerization seems likely to live a classic case of “disruptive” technology, which means many organizations will find it difficult to manage. To exploit consumerized technology and public infrastructure successfully, companies must elect to back this transition and then learn to scan, evaluate and umpire service maturity. • CIOs will eventually live asked to integrate these new services with existing commerce systems. This will prove a daunting challenge, and will display that some consumer services are not as cheap as they first appear. • Although the security issues are often very existent and can in the short term live only partially addressed, they should not live allowed to quit emerging consumer infrastructure usage. Over time, market pressures will push many consumer systems to match or exceed the security of privately managed systems. In some areas, this has already happened. 1 David Moschella, What the Consumerization of IT means to your business, ten messages for CXOs, at http://lef.csc.com/blog/post/2011/06/what-theconsumerization-of-it-means-to-your-business-ten-messages-for-cxos. 2 David Moschella, Dou Neal, and John Taylor, The ‘Consumerization’ of Information Technology, Computer Sciences Corp, 2004.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 4 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ • Companies must handle users as consumers, encouraging employee responsibility, ownership and dependence by providing choice, simplicity and service. The parent/child attitude that many IT departments gain traditionally taken toward discontinuance users is now obsolete. • To hoist advantage of consumerization, companies must concede and leverage the blurring of their personal and professional lives. This means adopting differentiated employee usage and back models. The traditional top-down, one-size-fits-all approach will increasingly alienate employees and result in lost commerce opportunities. • As the current pace of technology improvement is expected to continue for many years, these issues are positive to become more important. Companies that gain an early understanding of consumerized technologies and their related issues will gain significant cost and usage advantages. (Emphasis added.) Over the ultimate few years—primarily due to the broad current appeal of the iPhone, the iPad, and Android devices— the consumerization trend has accelerated. In fact, in April of 2012, Apple created a new feature on its website called iPhone at Work. The page lists apps designed to assuage you organize your day, view your business, manage projects, meet anywhere, and travel light. The broad appeal of these devices, coupled with their rapid adoption by consumers, has caused many CIOs to originate allowing these devices to interact with corporate IT systems and even replace companyowned devices. According to one recent study that aggregated data from multiple sources, there is a shift away from laptops and PCs towards smartphones and tablets. In 2010, 350.8 million personal computers were sold worldwide. During the selfsame timeframe, 296.6 million smartphones and 17.6 million tablets were sold. For 2011, the estimates were that 364 million PCs would live sold, but 468 million smartphones and 63.6 million tablets would live sold. The trend will continue with tablet sales predicted to roughly equal overall PC sales by 2015.3 B. Adoption of BYOD Policies According to a global study by the Aberdeen group in July 2011, of 415 companies surveyed, 75 percent allowed employees to utilize their personal mobile devices for commerce purposes.4 Another survey by Forester Research showed similar adoption rates of BYOD. In their study from the tumble of 2011 of roughly 1,600 US information technology workers, Forester create that 48 percent of those responding were able to purchase the smartphone of their preference and utilize it for work.5 A 2011 study by IDC and Unisys of 3,000 information workers and commerce executives in nine countries showed that more than 40% of the devices used by respondents to access commerce applications were personal devices. This is a 10% expand from a 2010 study. The study moreover shows that travail is intruding on personal life. Approximately 50% of respondents reported using personal devices to conduct travail on vacation, 29% while in bed, and almost 20% while 3 David Meyer, Sales of Smartphones and Tablets to Exceed PCs, Oct. 6, 2011, Practical eCommerce, Insights for Online Merchants, available at http://www. practicalecommerce.com/articles/3069-Sales-of-Smartphones-and-Tablets-to-Exceed-PCs-. 4 Dave Zielinski, Bring Your Own Devices, Society for Human Resource Management, Vol. 51, No. 2, available at http://www.shrm.org/Publications/hrmagazine/EditorialContent/2012/0212/Pages/0212tech.aspx. 5 Id.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 5 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions driving. A surprising 5% reported using the devices in a residence of worship. They moreover utilize their devices to perform travail during “down time” (vacations and watching TV) and while at family gatherings.6 Perhaps the largest company to adopt a BYOD policy is IBM, which recently started a BYOD program. At present, only 80,000 IBM employees utilize their own personal devices, but the company hopes to extend the program to comprehend utter 440,000 employees.7 Although IBM had traditionally offered corporate-owned and managed Blackberries, iPhones and other devices started making an appearance. IBM’s CIO decided that “If they didn’t back them, they figured [employees] would figure out how to back [the devices] themselves.”8 This self-directed approach would gain been a problem for IBM given the volumes of sensitive information that could gain been build at risk. According to IBM’s CIO, employees “will find the most usurp tool to derive their job done. I want to Make positive I can enable them to outcome that, but in a passage that safeguards the integrity of their business.”9 As one passage of mitigating the risks to company data, IBM is structure what they convoke “fit for business” tools that tender the functionality of current consumer-level tools, but which comprehend the security features IBM requires. One example is an IBM version of the current cloud-based remote storage service Dropbox.10 As another example, Kraft Foods started a BYOD program in 2010. Kraft gives approximately 800 employees a stipend to buy either a Windows or Mac computer. If an employee wants a computer that costs more than the stipend amount, the employee must pay the difference. The Kraft program is not available to company executives who wield confidential information, Legal or HR staff, or employees who utilize their PC to race production equipment. Factory workers are moreover not eligible.11 Sybase, a 4,000-employee company, has developed a policy that embraces BYOD. Sybase makes and sells software (called Afaria) that allows employers to control dual-use devices. Sybase has leveraged this software for its own internal operations.12 Under the Sybase approach: • Employees can elect from 20 different phones. • Employees buy and own the phones, but Sybase pays for the monthly service contract.13 • Sybase apps such as Mobile Office for travail email and contacts can live installed and race on those phones. Employees must let Sybase utilize its Afaria software to wipe their devices and delete company data if they are lost or stolen, or if the employees leave the company.14 6 outspoken Gens, Danielle Levitas, and Rebecca Segal, 2011 Consumerization of IT Study: Closing the “Consumerization Gap”, July 2011. 7 Chris Kanaracus, IBM CIO discusses mammoth Blue’s BYOD strategy, Computerworld, Mar. 26, 2012, http://www.computerworld.com/s/article/9225563/IBM_ CIO_discusses_Big_Blue_39_s_BYOD_strategy. 8 Id. 9 Id. 10 Id. 11 Verne G. Kopytoff, More Offices Let Workers elect Their Own Devices, Sept. 22, 2011, http://www.nytimes.com/2011/09/23/technology/workers-owncellphones-and-ipads-find-a-role-at-the-office.html?pagewanted=all. 12 JP Finnell, transient Apps: The Consumer Influence on Enterprise Mobility, portion 2, GigaOm, Aug. 2010. 13 Dave Zielinski, Bring Your Own Devices, Society for Human Resource Management, Vol. 51, No. 2, available at http://www.shrm.org/Publications/hrmagazine/EditorialContent/2012/0212/Pages/0212tech.aspx. 14 Id.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 6 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Citrix, a company that sells software to virtualize the corporate desktop and Make it available remotely to workers, adopted a BYOD program in 2008. Citrix gives each employee a $2,100 stipend to purchase a laptop of their preference and a 3-year warranty. Citrix’s internal cost for similar rig and service was $2,600. Citrix reports an adoption rate of about 20%. By using their own desktop virtualization software, Citrix ensures that sensitive corporate data stays on secure corporate servers and is not stored on employee devices, thus mitigating many of the data-related risks described in this Littler Report.15 C. A Cost/Benefit conclusion for Employers Many companies that are adopting dual-use device policies are doing so because they believe this approach has significant benefits for both the company and their employees, including: • Reducing expenses for employers (estimated to live approx. $80 per employee per month for device, cellular access, etc.) by allowing companies to leverage their employees’ investments in devices • Improving employee appointment because employees can utilize devices they want and already know how to utilize • Aiding in the recruitment of new employees • Solving the “two pocket problem” by allowing employees to carry only one device, rather than two—one for commerce and one for personal utilize • Allowing companies to more quickly hoist advantage of newer technologies that reduce cost and promote collaboration This “common sense” approach that is gaining acceptance is not without challenges and concerns. Some recent research suggests that BYOD programs gain hidden costs that may understanding companies to disburse more money than they realize and could Make the programs more expensive to operate than the traditional model. A recent article in CIO magazine16 describes these hidden costs. First, employers lose the power of bulk purchasing and the ability to exact discounts from device manufacturers and cellular providers when their employees purchase individually. These higher costs hit the company through employee expense reimbursements, with a cost differential as much as $10 a month per device per employee. Second, some companies flavor higher assuage desk and back costs because employees utilize multiple platforms on many different devices, making it harder and more expensive to back them. And, employers who elect to create their own internal mobile device applications (or “Apps”) are faced with the prospect of developing them for multiple platforms as opposed to a unique corporate standard. Security is moreover another expensive item for employers. In a recent survey by Aberdeen of more than 600 IT conclusion makers, they discovered that more than half of the companies reported experiencing a security breach as a result of consumer gadgets. 15 Id. http://www.shrm.org/Publications/hrmagazine/EditorialContent/2012/0212/Pages/0212tech.aspxhttp://www.shrm.org/Publications/hrmagazine/EditorialContent/2012/0212/Pages/0212tech.aspx. 16 descry Tom Kaneshige, “BYOD” If You umpire You’re Saving Money, umpire Again, CIO Magazine, Apr. 4, 2012, available at http://www.cio.com/article/703511/BYOD_If_You_Think_You_re_Saving_Money_Think_Again. COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 7 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions The article concluded with this sobering fact: utter tallied, BYOD doesn’t determine pretty from a cost perspective. A typical mobile BYOD environment costs 33 percent more than a well-managed wireless deployment where the company owns the devices ***.” (Emphasis added.) If the perceived cost savings are the primary driver for a company—as opposed to the cultural, flexibility, or employee appointment benefits—companies should evaluate the cost savings closely before making this fundamental change. The total cost debate is far from settled and will change over time. D. The “Appification” of Corporate Information Technology The consumerization trend goes beyond merely the devices employees utilize to access, store, and transmit data. It moreover extends to the applications and services they utilize with the devices to conduct business. Given the low-cost, or even free, applications that are available to mobile device users via the Apple Store or the Android Marketplace, it is not surprising that employees are beginning to adopt these consumer-level applications and leverage them for business. After all, “[w]hat are employees supposed to umpire when the e-mail systems they derive for free at home seem so much simpler, more dependable and more functional than the expensive ones they are forced to utilize at work? How is it viable to the medium consumer can set up a wireless LAN at home in a few hours, while corporate IT takes months, or deems the entire feeling too difficult?”17 In addition, some call the growth of transient apps, which are described as a new category of enterprise App that meets the needs of multi-tasking workers who can utilize an App to meet a specific purpose and then dispose of it. Such apps are generally simple apps that are “lightweight, custom, effortless to integrate, not mission-critical (relative to mobile enabled ERP or CRM commerce apps), self-service, low-cost, hoist less than two weeks to develop and often ‘mash up’ data from internal and external sources.” Examples of such transient apps comprehend things such as corporate conference apps, resource scheduling apps, project management apps, brainstorming apps, and time and expense reporting apps.18 These “quick and dirty” apps will supplement more traditional applications as well as new mobile apps that allow easier access to traditional corporate IT systems, including Customer Relationship Management software or other enterprise applications.19 Some companies are embracing this “Enterprise App” trend and gain started developing applications specifically for their employees to assuage them accomplish their jobs. For example, Genentech has built an enterprise App store stocked with third-party applications that employees can utilize to derive their job done. This has created a new mentality of “I gain an app for that.”20 Other vendors tender software to allow mobile employees to access corporate SharePoint sites securely. 17 David Moschella, Dou Neal, and John Taylor, The ‘Consumerization’ of Information Technology, supra n. 2 at 4. 18 JP Finnell, transient Apps: The Consumer Influence on Enterprise Mobility, portion 2, GigaOm, Aug. 2010. 19 Id. 20 Id.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 8 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Companies are moreover developing marketplaces for apps targeting specific industries, such as Happtique, a mobile App store for hospitals and healthcare professionals. It offers a catalog of mobile health apps that are designed to connect patients to their healthcare providers and physicians through mobile phones. The platform is being used by hospitals such as Mount Sinai Hospital and Beth Israel Medical Center.21 E. Challenges for Employers The slip to greater adoption of mobile devices is clearly accelerating and appears irreversible. They provide workers with too much flexibility and convenience to live ignored. The question for employers is how to respond to this trend. There are several options, including providing employees with a wider variety of corporate-owned mobile devices to allow employees to utilize the device of their preference and loosening restrictions on utilize of these devices for personal activity. Another option, which is currently enjoying a surge in popularity, is to allow employees to utilize their personally owned devices to perform travail and adopt BYOD programs. The balance of this Report describes the challenges a BYOD approach creates for employers and provides practical recommendations employers can respect to mitigate the risks. These developments pose two types of challenges for organizations. First, companies that adopt a BYOD policy now gain their corporate data stored on personal devices owned by their employees. This creates several data-related challenges for companies, especially those in highly regulated environments, such as healthcare, fiscal services, and those that wield sensitive personal information. Second, because employees are using devices they own, it may change their expectations regarding what constitutes usurp utilize of the device. This change could create significant affray with other company policies. In fact, recent research shows the personal “ethics” or “morals” of some workers who are lively “social networkers” sharply diverge from other workers on key issues. In the 2011 National commerce Ethics Survey (NBES), the Ethics Resource focus reported that lively sociable networkers (defined as an employee who spends 30% or more of his or her travail day participating on various sociable network sites) are more likely to believe that inevitable questionable behaviors are acceptable. The table below shows the responses to several questions by those who are lively sociable networkers compared with other US workers. 21 Rip Empson, Happtique Brings Secure, Branded App Stores To Hospitals And Healthcare, Dec. 7, 2001, at http://techcrunch.com/2011/12/07/happtiquebrings-secure-branded-app-stores-to-hospitals-and-healthcare/.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 9 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions outcome you feel it is acceptable to...? lively sociable Networkers Other U.S. Workers “Friend” a client/customer on a sociable network 59% 28% Blog or tweet negatively about your company or colleagues 42% 6% Buy personal items with your company credit card as long as you pay it back 42% 8% outcome a dinky less travail to compensate for cuts in pay or benefits 51% 10% retain a copy of confidential travail documents in case you requisite them in your next job 50% 15% hoist a copy of travail software home and utilize it on your personal computer 46% 7% Upload vacation pictures to the company network or server so you can partake them with co-workers 50% 17% utilize sociable networking to find out what my company’s competitors are doing. 54% 30% While these findings may not live generally applicable to utter mobile workers, these potential changes in expectations and attitudes, combined with the dispersion of corporate data to devices beyond the corporation’s immediate control, deserve considerable attention. Companies should respect these issues when crafting policies and procedures to escort the rollout of a BYOD program.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 10 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ III. DATA-RELATED CHALLENGES OF BYOD PROGRAMS The slip to dual-use devices raises several challenges because company data is no longer stored on devices the company owns and can control. These challenges arise in the region of security and privacy, litigation holds, record retention obligations, trade secret protection, and more. A. Information Security Risks for the Employer’s Information Dual-use devices can expose businesses’ sensitive information to unauthorized acquisition in many ways. In a recent survey of 614 senior-level IT security professionals, 76% of the respondents reported that employees’ utilize of mobile data-bearing computing devices, such as smartphones and tablets, created a “significant” or “very significant” risk for their organizations’ security posture.22 1. Lost or stolen devices The most obvious risk is the loss or theft of a dual-use device. According to a study of security breaches published by the Ponemon Institute in 2011, a leading information security umpire tank, lost and stolen rig was the number one understanding of surveyed security breaches, accounting for 31% of surveyed breaches.23 In a more recent study by Ponemon, 39% of respondents reported that their organizations had sustained a data security breach in 2011 as a result of lost or stolen equipment.24 In 2011, Lookout, a company that provides software to assuage locate lost or stolen devices, helped 9 million people locate their devices. That corresponds to one locate request every 3.5 seconds. 2. Malware Even if a dual-use device is not lost or stolen, the device can create security risks in other ways. For example, in February 2012, Juniper Networks reported a 155% expand from 2010 to 2011 in the volume of malicious software created for mobile devices.25 Some of this malicious software takes the form of apparently innocuous applications (“Apps”) downloaded to the dual-use device, particularly devices running the Android operating systems. While Apple screens Apps offered through its App Store, the Android Market does not, and anyone can submit an App for downloading. As a result, applications available for that platform are more likely to live malicious. In fact, in the ultimate seven months of 2011 alone, Juniper create “malware targeting the Android platform rose 3,325 percent.”26 The sophistication of the attacks is moreover increasing. One reflection of this potential exploit is the Ponemon Institute’s finding that insecure mobile devices were the fourth most common understanding of the loss or theft of corporate data, accounting for 13% of the surveyed breaches.27 22 Ponemon Institute, Future state of IT Security: A Survey of IT Security Executives, Feb. 2012, available at http://365.rsaconference.com/servlet/JiveServlet/download/17366-3683/RSAC+Manuscript+FINAL+7.pdf, at 6. 23 Ponemon Institute, Understanding Security Complexity in 21st Century IT Environments, Feb. 2011, available at http://www.checkpoint.com/downloads/whitepapers/ponemon-check-point-march2011.pdf, at 10. 24 Ponemon Institute, 2011 Cost of Data breach Study: United States, Mar. 2012, available at http://bit.ly/xBF6vr, at 10 (shortened URL link directs to report on Symantec website). 25 Juniper Networks, 2011 Mobile Threats Report, Feb. 2012, at 6, available at http://www.juniper.net/us/en/local/pdf/additional-resources/jnpr-2011-mobile-threats-report.pdf?utm_source=promo&utm_medium=right_promo&utm_campaign=mobile_threat_report_0212, 26 Id. at 8. 27 Ponemon Institute, Understanding Security Complexity in 21st Century IT Environments, supra note 22, at 10.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 11 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 3. Friends and family While hackers are commonly believed to live the greatest threat to sensitive information, the reality is that friends, family members and housemates can pose an even more significant risk to sensitive information stored on a dualuse device. When an employee shares a dual-use device with others perceived as trustworthy, or leaves the device unattended in an apparently friendly environment, a trusted person likely would gain no requisite to bypass security measures, such as encryption or password protection because the device would already live unlocked. To live sure, the feeling that an employee’s “circle of trust” could pose a greater security risk than a hacker may seem cynical, but a report by the U.S. Treasury Department’s fiscal Crimes Enforcement Network provides empirical support. That study create that, in 27.5% of suspicious activity reports filed by depository institutions between 2003 and 2009, the identity theft victim knew the suspected thief, who was usually a family member, friend, acquaintance, or an employee working in the victim’s home.28 4. Gateway to the cloud Mobile devices can moreover live viewed as a “gateway to the Cloud.” That is, mobile device users are offered a variety of free or low-cost applications, such as Dropbox and Evernote, that allow them to create content and store it, or back it up, using cloud-based storage. While these tools tender distinguished convenience and functionality for consumers, companies must evaluate whether they provide adequate security before they are used to store company data, especially sensitive personal data, health data, or company trade secrets. Many of the federal and state regulations discussed below impose obligations on companies to: (1) carefully select and oversee their vendors to ensure they are capable of protecting their information; and (2) bind those vendors by contract to safeguard sensitive information. Although these statutes outcome not specifically address dual-use devices or cloud storage, they extend to sensitive information, regardless of where it is stored. Moreover, as celebrated below in the discussion of the Stored Communications Act (see Section III.C.2), a company may not gain ready access to their data if it is stored with a cloud provider under contract with the employee rather than the employer. 5. Implications of a security breach These risks can expose organizations to government enforcement actions, civil penalties, and litigation as statutory, regulatory and contractual obligations to safeguard sensitive information become increasingly prevalent. Under the information security regulations (the “Security Rule”) promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), hospitals, health dependence providers, health insurers and self-insured health plans are required to implement technical, physical and administrative safeguards for protected health information (PHI) in electronic form.29 Notably, the U.S. Department of Health and Human Services, which enforces HIPAA, has recently 28 U.S. Department of Treasury, fiscal Crimes Enforcement Network, Identity Theft: Trends, Patterns and Typologies Reported in Suspicious Activity Reports Filed By Depository Institutions, January 1, 2003 – December 31, 2009, Oct. 2010, available at http://www.fincen.gov/news_room/rp/reports/pdf/ID Theft.pdf, at 4. 29 descry 45 C.F.R. pts. 160, 162 and 164.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 12 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ obtained seven-figure settlements in two different matters arising from security breaches.30 enjoy HIPAA, the Gramm-Leach-Bliley Act (GLBA) extends protections to information created or received by a “financial institution”—a broadly defined term that includes not only banks but moreover car dealerships that extend credit and even some travel agencies— in connection with the customer relationship.31 Many states gain enacted laws that impose information security obligations on businesses that collect or store sociable Security numbers, drivers’ license numbers, credit and debit card numbers, and fiscal account numbers. Massachusetts and Oregon, for example, require that such businesses implement a comprehensive, written information security program and provide detailed requirements for implementing the program.32 Massachusetts’ information security regulations specifically address portable devices, requiring encryption of personal information stored on them. Moreover, the Massachusetts Attorney general has recently obtained monetary penalties against businesses that gain failed to fulfill information security obligations.33 Other states, such as California and Texas, impose a general statutory duty on businesses to safeguard personal information.34 In addition to these more general requirements, a majority of states gain enacted narrower information security laws. At least twenty-nine states, for example, require the secure destruction or protection of personal information in electronic form.35 While these statutes and regulations attend to apply only to specific industry sectors or states, their repercussion has resonated far beyond the businesses directly topic to them. Many of those statutes and regulations, either expressly or implicitly, require companies to carefully screen vendors that wield a company’s sensitive personal information— such as, third-party administrators, billing services, insurance brokers, information technology consultants, auditors, accountants and attorneys—and ensure they are capable of providing adequate safeguards for sensitive information. Many of these statutes and regulations moreover require businesses to bind those vendors, by contract, to implement safeguards to protect this information. Although these regulations may not specifically address dual-use devices or cloud storage vendors, they necessarily apply to sensitive information, regardless of where it is stored. The ultimate objective of these statutes, regulations and contractual provisions is to reduce the risk of a security breach. Notably, 46 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam gain utter enacted security breach notification laws. Under these laws, when a commerce knows, or has understanding to believe, that unencrypted, computerized, personal information has been acquired by an unauthorized person, the commerce may gain a security breach notification duty depending on whether the state’s notice law moreover requires that the compromise pose a 30 descry Phillip L. Gordon, Finding the Messages to Employers in $1.5M HIPAA Settlement, Workplace Privacy Counsel (Mar. 14, 2012), at http://privacyblog. littler.com/2012/03/articles/hipaa-1/finding-the-messages-to-employers-in-15m-hipaa-settlement/; Phillip L. Gordon, HHS' One-Two HIPAA Penalty Punch Sends a Message to Employers and Providers, Workplace Privacy Counsel (Mar. 8, 2011), at http://privacyblog.littler.com/2011/03/articles/hipaa-1/hhs-onetwo-hipaa-penalty-punch-sends-a-message-to-employers-and-providers/. 31 15 U.S.C. §§ 6801 – 6809. 32 Mass. Regs. Code tit. 201, §§ 17.03 – 17.04; Or. Rev. Stat. §§ 646A.622. 33 descry Ellen Giblin, Massachusetts Extends attain of Data Protection Regulations, Workplace Privacy Counsel (May 18, 2011), at http://privacyblog.littler. com/2011/05/articles/data-security/massachusetts-extends-reach-of-data-protection-regulations/. 34 descry Cal. Civ. Code §§ 1798.80 et seq. 35 descry National Conference of state Legislatures, Data Disposal Laws, at http://www.ncsl.org/issues-research/telecom/data-disposal-laws.aspx.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 13 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions significant risk of harm to affected individuals. Consequently, if an employee’s dual-use device is lost, stolen, hacked, or otherwise topic to unauthorized access, the employer will, at a minimum, live required to evaluate whether notification is necessary unless utter personal information stored on the compromised dual-use device is encrypted. Encryption not only provides a safe harbor from security breach notification requirements, it moreover is, or may be, required by statute or regulation. As celebrated above, Massachusetts’ information security regulations, for example, require encryption of portable storage media containing personal information.36 Nevada imposes a similar requirement by statute.37 The HIPAA Security Rule requires that covered entities at least respect whether encryption of personal health information in electronic form is feasible and, if not, to document the basis for that conclusion.38 In addition to these legal requirements, encryption often is one of the information security measures that businesses are increasingly imposing by contract on their vendors. Mitigating the risk of a security breach involving a dual-use device, such as by encrypting the device, is captious given the lofty cost of a security breach to the affected business. According to one recent study, the medium loss resulting from a security breach is $5.5 million, or $194 per lost record containing personal information. The medium loss includes $3.01 million in lost commerce costs, such as an abnormal turnover of customers, increased customer acquisition activities, reputation losses and diminished goodwill caused by the breach.39 B. Record Management Laws and Contractual Obligations Storing company data on employee-owned devices can moreover create challenges for compliance with an organization’s records management obligations. For example, many states require the secure destruction of inevitable types of sensitive information. Regulations promulgated under the unprejudiced Credit Reporting Act require the secure destruction of consumer report information. In addition, the criterion terms of most confidentiality or non-disclosure agreements and court protective orders obligate parties to securely discontinuance confidential information obtained from the adverse party. If the records are stored on employee devices or with cloud providers under contract with the employee, compliance with these obligations could live frustrated. C. The Privacy of Employee Data on Dual-Use Devices Many employers gain become accustomed to the mantra that employees “have no reasonable expectation of privacy” in any information stored on, or transmitted through, the employer’s information systems. However, the transpose of that mantra controls when an employer permits its employees to utilize a dual-use device. Employees outcome gain a reasonable expectation of privacy in information stored on a portable device that the employee owns. Indeed, that expectation of privacy is codified by statute. The federal Computer Fraud and mistreat Act (CFAA) makes it a criminal crime to gain unauthorized access to a computer and permits the recovery of civil damages when the unauthorized access results in damage exceeding 36 Mass. Regs. Code tit. 201, § 17.04(5). 37 Nev. Rev. Stat. 603A.215. 38 descry 45 C.F.R. pt. 164.312(a)(2), (e)(2). 39 Ponemon Institute, 2011 Cost of Data breach Study: United States, supra note 23, at 2-3.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 14 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ $5,000.40 utter 50 states gain enacted “computer trespass” laws, which largely parallel the CFAA. These laws moreover typically are criminal statutes with civil remedies; some of those remedies are generous. At least seven states, for example, allow for statutory damages absent proof of actual harm. 41 It is captious for employers who permit dual-use devices to live aware of these laws. 1. Remotely deleting data from employee devices One security feature commonly used by employers who permit dual-use devices is a “remote wipe” capability. When activated—typically in response to an employee’s report that a device has been lost or stolen—this feature deletes any of the employer’s information stored on the dual-use device as well as utter other information stored on the device.42 In other words, sending a remote wipe command to an employee’s dual-use device typically will result in the deletion of the employee’s personal contacts, personal e-mail, photos, videos, books, music, and utter other personal information stored on the dual-use device. If the employee has not recently backed up their personal data stored on the dualuse device, the deletion could result in the significant loss of potentially irreplaceable data to the employee. Even if the employer activated the remote wipe command with the end of destroying only the employer’s commerce information, the employer soundless could live topic to criminal and civil liability if the employee did not provide prior authorization for deletion of his or her personal items. In fact, Littler is aware of two recent cases where employers gain received exact letters from terminated employees whose dual-use devices had been remotely wiped by the employer’s IT personnel without the terminated employee’s prior authorization. 2. Accessing data stored with online services The federal Stored Communications Act (SCA) raises a similar, but a bit different, risk for employers.43 The SCA prohibits unauthorized access to e-mail stored at an e-mail service provider. enjoy the CFAA, the SCA is a criminal statute with civil remedies. The conclusion in sheer Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, L.L.C.,44 illustrates how the SCA could live used against an employer who permits dual-use devices. In that case, the employer accessed a former employee’s Hotmail account, using the log-in credentials that had been stored on the employer’s computer system when the employee accessed the account using his travail computer. While accessing the employee’s Hotmail account, the employer create an e-mail with a password for the employee’s Gmail account and accessed e-mail in that account as well. In a counterclaim against the employer, the former employee obtained summary judgment in his favor on his SCA claim.45 Similarly, and as one example, if an employer uses the employee’s dual-use device to access 40 18 U.S.C. § 1030. 41 The event states are as follows: California—Cal. Penal Code § 502(e); Nevada—Nev. Rev. Stat. 205.511; New Jersey -N.J. Stat. Ann. § 2A:38A-3 (2011); Rhode Island -R.I. Gen. Laws § 11-52-6; Vermont—Vt. Stat. Ann. tit. 13, § 4106 (2012); Virginia -Va. Code. Ann. § 18.2-152.12; West Virginia -W. Va. Code Ann. § 61-3C-16 (2011). 42 As celebrated below, some vendors tender security software that allows a company to create a separate, secured area—commonly called the “sandbox”—on the dual-use device for the storage of company data by the employee. This software typically allows a company to issue a wipe command to only the data stored in the sandbox, leaving untouched the rest of the data stored on the dual-use device. So long as the employee has not stored company data outside of the sandbox, this more limited approach could live employed. 43 18 U.S.C. §2701. 44 sheer Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, L.L.C., 587 F. Supp. 2d 548 (S.D.N.Y. 2008). 45 sheer Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, L.L.C., 759 F. Supp. 2d 417 (S.D.N.Y. 2010).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 15 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions an employee’s personal e-mail account, without the employee’s prior authorization, the employer may live exposed to similar claims. The selfsame reasoning likely applies to the many forms of remote, cloud-based storage available to users of mobile devices, such as Dropbox, Google Drive, Evernote, etc. Data stored by an employee with these services may live readily available on the device simply by launching an application because the employee may gain saved the username and password in the applications. Companies requisite to ensure they gain the employee’s consent before accessing data stored with such services. Companies moreover requisite to live heedful about relying on verbal consent from employees, because employees may later claim they did not give consent or that the consent was coerced. For example, in Pietrylo v. Hillstone Restaurant Group, a district court upheld a jury verdict and punitive damages against an employer for violating the SCA even despite the employer’s controversy that it had obtained adequate verbal consent. The employer’s managers asked an employee to provide her login credentials for a password-protected online chat forum created and used by a group of employees, including the plaintiffs. The employee complied with the manager’s request, and the managers subsequently accessed the forum and terminated the employees who had created it. The plaintiff-employees argued that the disclosure of login credentials had been coerced. After a jury trial, the district court concluded, in response to a post-trial motion to overturn the jury’s verdict, that a reasonable jury could find that the employee had been coerced into consenting because the employee had testified that she thought “something execrable might befall to her if she didn’t consent.” Consequently, the evidence supported the jury’s finding that the manager’s access to the chat latitude had been unauthorized. 3. Employee’s privileged communications At least one court has held that an employer’s ability to secure consent from its employees can only travel so far. In Stengart v. Loving dependence Agency, Inc.,46 the New Jersey Supreme Court held that a former executive employee had a reasonable expectation of privacy in email exchanged between her and her attorney through her personal, web-based email account, even though the email exchange with her attorney was stored in temporary storage on a companyissued computer. The court rejected the defendant-employer’s controversy that it had a birthright to review information contained on company-owned devices (e.g., plaintiff’s company-issued laptop), stating, “a policy that banned utter personal computer utilize and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications … would not live enforceable.”47 Notably, to date, Stengart has not yet been followed in any other jurisdiction. 46 Stengart v. Loving dependence Agency, Inc., 201 N.J. 300 (N.J. 2010). 47 Id. at ¶ 8. It should live celebrated that many states disagree with the policy implications of Stengart, and instead understanding that a properly crafted policy provides informed consent. See, e.g., Holmes v. Petrovich evolution Co., L.L.C., 191 Cal. App.4th 1047, 1071 (Cal. Ct. App. 2011) (holding plaintiff had no expectation of privacy in personal email sent on a travail computer when plaintiff was notified in writing that her employer could inspect her computer at any time at its discretion and where company computers were monitored to Make positive employees were not using them to transmit personal emails, reasoning: “[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would anticipate that their discussion of her complaints about her employer would live overheard by him.”)THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 16 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ 4. Information employers may not want to descry Employers who access information stored on a dual-use device, even with the employee’s authorization, could soundless live exposed to liability. For example, an employer could view “genetic information” which, under the Genetic Information Non-discrimination Act of 2008 (GINA), employers are generally prohibited from collecting. Under GINA, genetic information includes not only the genetic test results of an employee and the employee’s family members, but moreover the manifestation of a disease or disorder—whether hereditary or not—in an employee’s family member to the fourth degree.48 The employer moreover could determine information upon which an employer cannot lawfully depend to Make an employment decision, such as the fact that the employee who owns the dual-use device has a earnest eating disorder or other impairment, which constitutes a disability under the Americans with Disabilities Act (ADA).49 Even seeing that the employee has an App related to a particular disorder or condition installed on his or her device could expose this information. D. Preserving and Collecting Data from Employees’ Dual-Use Devices for Litigation Holds and Investigations The territory of e-Discovery continues to grow at a rapid rate, touching upon every aspect of evidence in litigation and information management in the workplace. This trend50 is not surprising given that reported e-Discovery sanctions cases continue to dominate legal headlines,51 costs for e-Discovery activities in lawsuits—even diminutive ones—continue to skyrocket, new technologies continue to create unique challenges around preserving, collecting and producing electronic data in litigation, and the Discovery Subcommittee of the Federal Courts Advisory Committee on Civil Rules is once again considering another set of amendments to the Federal Rules of Civil Procedure to specifically address utter of these issues (with a specific focus on e-Discovery preservation and sanctions issues).52 In addition, as e-Discovery continues to mature, the courts are coming back to one of the most fundamental tenets of litigation: defensibility. Even if evidence is electronic, voluminous or grounded in a novel technology, litigants must live prepared to safeguard how they identified material sources of data, preserved, harvested, culled, reviewed and produced that data, as well as the basis for having it admitted into evidence at trial. 48 42 U.S.C. § 2000ff(3), (4). 49 Garry G. Mathiason, Margaret Hart Edwards, et al., THE LITTLER TEN: Employment, Labor and capitalize Law Trends for Navigating the New Decade, Littler Report (Sept. 30, 2010) at 9-13 (Littler Three: The fearless New World of Employment Litigation—e-Discovery, Next Generation Class Actions, Privations of Litigation Through ADR and Virtual Trials), available at http://www.littler.com/publication-press/publication/littler-ten-employment-labor-and-benefitlaw-trends-navigating-new-dec. 50 For a more detailed discussion of e-Discovery trends and predictions, descry The Littler Ten: Employment, Labor and capitalize Law Trends for Navigating the New Decade, Littler Three: The fearless New World of Employment Litigation—e-Discovery, Next Generation Class Actions, Privations of Litigation Through ADR and Virtual Trials,at 9 – 13, Sept. 2010. 51 descry E-Discovery 2011 Year in Review, Law Tech. News, Cecil Lynn, III, Feb. 2012. 52 descry Federal Judicial Advisory Committee Ponders New e-Discovery Rules, Law Technology News, note Michels, Apr. 6, 2012, available at http://www.law. com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202548101854&slreturn=1 (last accessed Apr. 12, 2012).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 17 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions Moreover, despite the fact that certain, baseline e-Discovery standards and litigation back technologies53 are—seven years after Zubulake54—“well established,”55 the territory of e-Discovery continues to develop at a rapid pace, especially as data volumes expand exponentially, businesses and individuals alike slip to a digital platform, and new sources of technology emerge. Given this backdrop, it should not live surprising that a BYOD environment implicates a host of e-Discovery challenges. As discussed below, employers must equilibrium the significant practical and legal challenges they will physiognomy around identifying, collecting and producing data on/from dual-use devices (of both current and former employees) to meet threshold e-Discovery obligations, with any potential costs savings or other perceived benefits of implementing such a program. 1. Identification of BYOD devices/information A threshold e-Discovery duty is to identify and preserve material sources of data once the duty to preserve is triggered.56 In today’s digital world, this requires having a thorough understanding of an employer’s data infrastructure,57 which may comprehend things enjoy servers and databases that are generally maintained by the IT department, as well as media and other devices that are issued to individual custodians, enjoy computers, PDAs, phones, etc. Under a “traditional” model, the IT department issues company-purchased and owned computers, PDAs and other devices to their employees. Not only are the devices homogeneous,58 they are usually indexed and tracked (including 53 From a vendor/technology standpoint, while inevitable activities are becoming commoditized (e.g., data processing and hosting services), other areas are rapidly emerging (e.g., predictive coding and advanced search technologies). See, e.g., Search, Forward: Time for Computer Assisted Coding, Law Technology news Honorable Andrew J. Peck, Oct. 1, 2011 (“If the fiery topic in 2010 [in e-Discovery] was proportionality, this year it is computerassisted coding, often generically called ‘predictive coding. By computer assisted coding, I weigh in tools (different vendors utilize different names) that utilize sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer.”). 54 The Zubulake line of cases are landmark e-Discovery opinions authored by umpire Shira Scheindlin, considered the “matriarch” of the e-Discovery movement in the United States, that are universally recognized as launching the territory of e-Discovery. They include: Zubulake v. UBS Warburg L.L.C. 217 F.R.D. 309 (S.D.N.Y. May 13, 2003) (Zubulake I) (addressing the novel question of to what extent inaccessible electronic data is discoverable and who should pay for its production and setting forth seven factor cost-shifting test); Zubulake v. UBS Warburg L.L.C., 216 F.R.D. 280 (S.D.N.Y. July 24, 2009) (Zubulake III) (applying seven factor cost-shifting test for inaccessible data and holding that the cost to restore back-up tapes should live allocated 75% to defendant and 25% to plaintiff); Zubulake v. UBS Warburg L.L.C., 220 F.R.D. 212 (S.D.N.Y. Oct. 22, 2003) (Zubulake IV) (setting forth both the scope of a litigant’s duty to preserve electronic evidence and the consequences for failing to preserve evidence that falls within the scope of that duty); and Zubulake v. UBS Warburg L.L.C., 229 F.R.D. 422 (S.D.N.Y. July 20, 2004) (Zubulake V) (setting forth additional steps that must live taken to ensure compliance with preservation obligations and issuing an adverse inference instruction against defendant as a sanction for failing to meet those obligations, and forewarning in a Postscript: “Now that the key issues gain been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information”). 55 The Pension Committee of the University of Montreal Pension diagram v. Banc of America Sec. L.L.C., 2010 WL 184312, *10 (S.D.N.Y. Jan 15, 2010) (landmark feeling authored by umpire Shira Scheindlin, setting forth new, post-Zubulake baseline e-Discovery standards, and issuing an adverse inference instruction against 15 plaintiffs in the case based upon the failure to follow those standards). 56 Zubulake V, 229 F.R.D. at 439. 57 Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911, *31 (S.D. Cal. Jan 7, 2008), vacated in portion on other grounds, 2008 U.S. Dist. LEXIS 16897 (S.D. Cal. Mar. 5, 2008) (“[F]or the current ‘good faith’ discovery system to office in the electronic age, attorneys and clients must travail together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents.”); Phoenix Four v. Strategic Resources Corp., 2006 U.S. Dist. LEXIS 32211 (S.D.N.Y. 2006) (Counsel “failed in its duty to locate and timely produce [electronic evidence]... [Counsel] affirms that it engaged in a dialogue with the defendants on the requisite to locate and assemble paper and electronic documents... But counsel’s duty is not confined to a request for documents; the duty is to search for sources of information. It appears that counsel never undertook the more methodical survey of the... Defendants’ sources of information....”); Zubulake v. UBS Warburg L.L.C., 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“[A] party and her counsel must Make inevitable that utter sources of potentially material information are identified and placed ‘on hold’... to outcome this, counsel must become fully intimate with her client’s document retention policies, as well as the client’s data retention architecture... it will moreover involve communicating with the ‘key players’ in the litigation, in order to understand how they store information.”). 58 Corporate IT departments often strive for commonality and redundancy related to electronic information systems. By limiting the variety of a particular THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 18 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ via “asset tags” identifying the devices as being owned by the employer) by the company’s IT department. Then, when litigation hits or a duty to preserve is otherwise triggered, the employer has on hand a current inventory of IT assets that gain been issued to individual employees, can quickly determine which of those assets are material to the matter at hand, and can hoist usurp steps to capture and preserve data on those devices. Under a BYOD model, or in situations where employees are using unapproved cloud-based services, the employer may gain very little, if any, information about where its data is stored. The employer is likewise faced with significant challenges around preserving information from these sources, and may live completely at the leniency of its employees, who gain no IT training and oftentimes are not directly involved in litigation activities. 2. Practical challenges of collecting data from dual-use devices Likewise, when dual-use devices are allowed, an employer’s IT department may not gain the expertise to defensibly collect data from the variety of devices used by their employees for purposes of litigation. For example, a corporation may gain the internal qualifications and resources to forensically copy hard drives formatted with a Microsoft Windows operating system, but may gain rigor making copies of an iPhone or iPad used by an employee under the company’s BYOD program.59 Likewise, the ability and system for collecting data on dual-use devices may vary greatly depending upon its operating system (“OS”) (e.g., Apple iOS, Windows Mobile, Android, Palm, etc.). Indeed, there may even live technical challenges to copying devices that gain the selfsame OS, but may not live identical. In fact, the Android operating system is “open source software” which allows software developers and computer manufacturers to alter its code to suit their particular needs and devices. This means that standardized tools may not travail on inevitable devices, and internal IT departments and/or forensic investigators may require additional tools and time to copy and search such devices and they may achieve varying results. A closed OS enjoy the Apple iOS may moreover gain its own set of challenges. Since only portion of the software source code is publicly available and licensed to developers, it may live difficult for commercially available forensic software to retain up with OS updates. These delays can substantially repercussion an employer’s and/or a forensic examiner’s ability to copy and search different versions of the selfsame software. In fact, when Apple recently updated its OS, the result, intended or incidental, limited the ability Make a physical copy of the device that would live necessary to capture deleted information stored on the device’s storage, which may live required in inevitable lawsuits. 3. A threshold inquiry: does the employer “control” company data on dual-use devices a. “Possession, custody or control” Under Rule 34 of the Federal Rules of Civil Procedure (FRCP), a party must produce responsive documents and electronically stored information (ESI) that are in its possession, custody or control. The Rule applies equally to computer or PDA, IT is able to gain an extensive understanding of a relative few systems and provide more in-depth back to the employees that utilize them. This less-is-more approach moreover permits a corporation to more effectively service computers and PDAs using common parts and components. 59 descry e.g., Triple-I Corp. v. Hudson Assoc. Consulting, Inc., 2009 U.S. Dist. LEXIS 37447, at *10, n. 8 (D. Kan. May 1, 2009) (noting that both parties should handle to resolve production problems that could live as simple as a execrable disk or the incompatibility in the parties’ respective computer formats (Mac v. PC).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 19 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions preservation.60 The Federal Rules, however, outcome not define control. Thus, it is necessary to determine to court decisions for an interpretation. Just enjoy many other areas in e-Discovery, the federal courts’ definition of “control” for purposes of Rule 34 preservation and production obligations differs from circuit to circuit (as discussed below), and often the term “control” does not require that a party gain legal ownership or actual physical possession of the information at issue.61 As an example, in Hagerman v. Accenture, L.L.P., plaintiffs sought e-mail authored and received by inevitable of defendant Accenture’s employees whose e-mails were stored on a Best Buy server. The court rejected Accenture’s controversy that Best Buy had exclusive control over the employees’ emails. Rather, the court held that “[i]f an Accenture employee with a bestbuy.com e-mail address can access information sent from or received by his or her bestbuy.com e-mail address within his or her run-of-the-mill day-to-day work, then that information is within Accenture’s control.”62 Conversely, Rule 34 did not apply to information from the Best Buy server that could not live accessed by an Accenture employee within his or her run-of-the-mill day-to-day activity. As a result, Accenture was required to preserve accessible information on the bestbuy.com server.63 In a litigation context, for purposes of complying with preservation and production obligations, the courts within different circuits define “control” over data (which triggers the concomitant duty to preserve and produce it) differently. Thus, a parties’ duty to produce inevitable information, may depend upon where the matter is litigated. The different definitions of “control” under Rule 34 generally tumble into three categories as set forth in the chart below: Category Rule 34 Definition of “Control” Circuit Courts that follow this test Category 1 A party must produce information that it has the legal birthright to obtain on demand. District of Columbia, 1st, 3rd, 6th, 7th, 8th, 9th, and 10th Circuits.a Category 2 A party must produce information that it has the legal birthright to exact as well as the “right, authority or practical ability” to obtain from a non-party. 2nd, 4th, 5th, and 11th Circuits.b Category 3 In addition to the above, these Circuits require a party to notify its adversary about evidence in the hands of third parties. 1st, 2nd, 6th, and 10th Circuits.c [See endnotes at page 58 for references.] b. Employer’s “control” over employees and their travail product The varying definitions of “control” may matter dinky when evaluating a company’s duty to obtain workrelated information from their employees in discovery. In general, a corporate party is deemed to gain control over 60 descry Columbia Pictures Indus. v. Fung, 2007 U.S. Dist. LEXIS 97676, at * 3 (C.D. Cal. 2007) (holding defendants must preserve data within their possession, custody or control); descry moreover Caston v. Hoaglin, 2009 U.S. Dist. LEXIS 49591, at * 8-9 (S.D. Ohio 2009) (denying plaintiff’s motion to serve subpoenas on defendant’s current employees holding that subpoenas were unnecessary given defendant’s control over the documents in the possession of its officers and employees). 61 2011 U.S. Dist. LEXIS 121511 (D. Minn. Oct. 19, 2011). 62 Id. at **9-11. 63 Id., descry moreover Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 567 (N.D. Cal. 2008) (holding defendants liable for third-party author's spoliation of audio taped interview with defendant's CEO who failed to hoist efforts to preserve the tapes despite having the ability to outcome so).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 20 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ its employees and officers.64 The rational is that these employees are creating travail product in furtherance of their employment and owe a duty to the company to maintain these documents for the corporation’s benefit.65 Accordingly, the employee has no birthright to utilize the information for his personal purposes, absent the employer’s consent66 and must surrender the information upon exact absent a transfer of ownership or possession.67 As a result, courts may quash as improper a subpoena issued directly to an employee pursuant to Rule 45 of the Federal Rules of Civil Procedure.68 Instead, courts gain advised that a Rule 34 Request for Production for corporate (vs. personal) information is a more usurp vehicle for production of corporate documents or data, regardless of whether the corporate documents are located in the corporate party’s office or the employees’ homes.69 Likewise, courts gain extended the selfsame theory of control over corporate documents and data to outside directors who are not company employees, even though they may only conduct sporadic commerce with the corporation.70 Most of the material case law concentrates on control over the employee or the company’s access to travail product. However, there is a void in the case law relating to an employee’s exclusive ownership of materials requested by a party in litigation. For example, what happens when a party requests information that resides only on the employee’s personal dual-use device and the employee claims the information is purely personal and not topic to their employer’s control? Here, a stalwart controversy can live made that the employer does not gain “control” over such personal information. The case of Hatfill v. New York Times Co.71 is instructive and provides guidance on how a court may rule on an employee’s objection to a exact for production. In Hatfill, the plaintiff brought a defamation action against the New York Times. In discovery, plaintiff requested documents from defendant’s employees related to published and unpublished reporting on anthrax attacks. The plaintiff filed a motion to compel interview notes stored on a non-party New York Times reporter’s personal flash drive. The flash drive was always in the reporter’s personal possession although he regularly attached the drive to computers owned by the newspaper as portion of his travail duties. The plaintiff argued that the notes were within the defendant’s control regardless of whether the reporter kept the notes on a home or travail device and thus the notes must necessarily live produced pursuant to Rule 34.72 The 64 Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (“A party responding to a Rule 34 production request “cannot furnish only that information within his immediate erudition or possession; he is under an affirmative duty to seek that information reasonably available to him from his employees, agents, or others topic to his control.”); Herbst v. Able, 63 F.R.D. 135, 138 (S.D.N.Y. 1972) (holding that corporate employees were within the corporate defendant’s control and that defendant must obtain copies of SEC transcripts from the employees). 65 Riddell Sports, Inc. v. Brooks, 158 F.R.D. 555, 558-59 (S.D.N.Y. 1994) (holding that corporate officer was topic to the control of the corporate party and had to produce tapes made in furtherance of his role as an officer). descry e.g. Flagg v. City of Detroit, 252 F.R.D. 346, 353 (E.D. Mich. Aug. 22, 2008) (holding that city defendant had adequate control over city employees text messages to satisfy production requirement under Rule 34). 66 In re magnificient Jury Subpoenas, 722 F.2d 981, 986 (2d Cir. 1983) (“The officer creates or handles the records in a representative capacity, not on his own behalf. The records, moreover, outcome not belong to him but to the organization.”). 67 Id. (“The contents of the documents, except possibly for any personal notes written on them after the witness ceased to live employed by the company, which might live his own personal non-corporate thoughts, are not protected from disclosure by the Fifth Amendment. “). 68 Shcaaf v. Smithkline Beecham Corp., 233 F.R.D. 451, 455 (S.D.N.Y. 2005) (quashing subpoena issued to employee directly because documents sought was owned by company). 69 descry Flagg v. City of Detroit, 252 F.R.D. 346, 353-54 (E.D. Mich. 2008) (In lieu of ruling on third-party service provider’s motion to quash subpoena for defendant’s text messages, court instructed plaintiff to serve Rule 34 request on defendants). 70 Miniace v. Pacific Martime Ass’n, 2006 U.S. Dist. LEXIS 17127, at *2 (N.D. Cal. Feb. 13, 2006). 71 Hatfill v. The New York Times Co., 242 F.R.D. 353, 354-55 (E.D.Va. 2006). 72 Id. at 355.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 21 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions newspaper, in turn, argued that the flash drive, and by extension, the reporter’s notes, were under the reporter’s exclusive control. The court agreed and held that the defendant newspaper formally ceded to its reporter employees any birthright to possess or control dissemination of notes and unpublished materials. This policy was embedded in the defendant’s collective bargaining agreement with the reporters’ unions and the court create that the newspaper’s policy had a limpid substantive purpose and was not an synthetic wall created for the purpose of avoiding discovery requests.73 Accordingly, the newspaper did not gain the legal birthright to obtain the flash drive over the reporter’s objection.74 The court’s conclusion in Hatfield suggests that an employee who stakes an ownership claim must live in sole possession of the device at issue. In addition, the employer would most likely requisite to disclaim its birthright to control the data on the device, a proposition that runs ornery to the needs of the employer in many other areas discussed in this Report. Thus, as a general matter, unless an employer has a limpid policy that relinquishes to its employees the employer’s ownership birthright over inevitable data (like the collective bargaining agreement at issue in Hatfield), courts will likely require an employer to preserve, collect, review, and produce material corporate information stored on dual-use devices and hold them accountable for failing to outcome so. c. Former employees Courts vary on whether a corporation has an duty or birthright to obtain its work-product from a former employee.75 However, a severance package or other economic capitalize from the corporation may evidence adequate post-termination control over the employee to topic the former employee to the production demands of Rule 34.76 And, as discussed in the Recommendations section below, the utilize of contracts with employees to address access to company data may live necessary to mitigate other risks. Even where an employer does not gain control over a former employee, some courts require, at a minimum, that the employer at least anticipate a former employee to search for and produce work-related information from their personal devices before the company can assert that it does not control the information under Rule 34.77 4. Additional practical and legal limitations on collecting data on dual-use devices As an additional practical matter, employees may live reluctant to revolve over their dual-use devices to the corporation and even more reluctant to gain their employers review the contents of their otherwise personal devices. Imagine a scenario where an employer is sued in federal court because a married-supervisor is accused of having an inappropriate 73 Id. 74 Id. 75 Cf. Cache La Poudre Feeds v. Land O’Lakes Feed, Inc., 244 F.R.D. 614, 627 (D. Colo. 2007) (“The court is not inclined to penalize a party for failing to approach former employees in an pains to respond to “catch-all” or nearly indecipherable requests for production.”) and Miniace, 2006 U.S. Dist. LEXIS 17127 at **8 -9 (no duty to produce documents from former board member). 76 See, e.g., In re Folding Carton Antitrust Litigation, 76 F.R.D. 420, 423 (N.D. Ill. 1977) (suggesting that an employer may gain control over documents in the possession of a former employee if that individual is soundless receiving economic benefits from the employer). 77 Chevron Corp. v. Salazar, 275 F.R.D. 437, 448-49 (S.D.N.Y. 2011) (“There is thus no evidence that [former employee] was “‘unwilling or unable’” to provide [her employer] with the material contents of her Gmail account or that [the employer] lacked the practical ability to acquire it from [employee] despite its being located in her private e-mail account rather than on [employee’s] server.”); Export-Import Bank of the United States v. Asia Pulp Co., 233 F.R.D. 338 (S.D.N.Y. 2005) (court create no indication that corporation did not gain practical means to obtain material work-related portions of former employees journal given appeared for his deposition); McCoy v. Whirlpool Corp., 214 F.R.D. 637, 641 (D. Kan. 2003) (holding that defendant must contact former employees to determine whether they were in possession of responsive documents). THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 22 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ sexual relationship with his subordinate, and the subordinate claims that the supervisor’s dual-use device contains extensive text and e-mail messages that prove her claims. How willing will that supervisor live to revolve over his device? Would his/her consent live truly voluntary? Indeed, can he/she live trusted to adequately preserve that information?78 Moreover, as discussed above, employers may physiognomy civil79 and criminal80 penalties for accessing an employee’s personal data without their informed consent. Thus, on the one hand, pursuant to Federal Rule of Civil Procedure 34, courts may find that employers gain adequate “control” over corporate data on dual-use devices and are obligated to preserve, collect, search and produce such material information. On the other hand, however, at least in some circumstances, employers may risk liability for reviewing inevitable information stored on an employee’s dual-use device regardless of the employer’s policy or the employee’s purported consent. As discussed above in the section on The Privacy of Employee Data on Dual-use devices, this may leave the employer in an unwinnable Catch-22 stemming from its BYOD policy. Likewise, in the litigation context, if dual-use devices are in play, counsel may requisite to handle with their adversary to attain an agreement to restrict discovery in a passage that meaningfully protects an employee’s birthright of privacy or applicable privileges. If unsuccessful, the employer could seek a protective order from the court to restrict the scope of production.81 An employer moreover may requisite to respect having a court-appointed neutral review dual-use devices if there is a reasonable likelihood that it will hold privileged or protected material.82 Finally, a BYOD program may open the door to broader discovery of employees’ personal data—at the employers’ expense. As a general matter, an employer does not gain “control” over or the birthright to access personal information and data stored on home or personal computers, personal e-mail accounts, personal PDAs and the like.83 Thus, if an adversary demands such information in discovery, an employer can and should object,84 especially if an employer has policies in residence that mandate employees should not utilize personal rig (like personal e-mail accounts and computers) for travail and/or to communicate about work-related matters. Yet, if an employer has a BYOD program, and is required to access employees’ personal devices for travail data, the plaintiff may claim that an employees’ personal data that is moreover stored on those selfsame devices is unprejudiced game. Given the lofty costs of e-Discovery and the inherent risks 78 See, e.g., When Custodians Could live Culprits, N.Y.L.J., Adam Cohen and Maureen O’Neil, Oct. 27, 2008. 79 descry e.g., Computer Fraud and mistreat Act (“CFAA”)(18 U.S.C. § 1030(g)); Stored Communications Act (SCA 18 U.S.C. § 2707(c); Wiretap Act (18 U.S. C. §2520); Doe v. City and County of S.F., 2011 U.S. Dist. LEXIS 143152, at * * 4-6 (N.D. Cal. 2011) (denying defendant’s motion for summary judgment related to allegations that defendant violated her birthright of privacy and the SCA by reviewing and printing copies of her personal Yahoo! emails while she was away from a company-owned computer); sheer Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, L.L.C., 759 F. Supp. 417, 428-29 (granting partial summary judgment concluding that defendants established four violations of the SCA when plaintiffs used a defendant’s password to access his personal email account). 80 descry e.g., CFAA (18 U.S.C. § 1030); SCA (18 U.S.C. § 2701(a); Wiretap Act (18 U.S. C. § 2510 et. seq.). 81 descry Nalco Chem. Co. v. Hydro Techs., Inc., 148 F.R.D. 608, 619 (E.D.Wis. 1993) (granting defendant employer’s application for a protective order holding fingerprints of employees are not in employer’s possession, custody or control). 82 descry Flagg, 252 F.R.D. at 353-54 (ordering initial review of text message in camera to identify material information and then affording defendant an opening to raise objections, “as a means of protecting against disclosure to Plaintiff of irrelevant, privileged, or otherwise non-discoverable materials.”). 83 descry In re magnificient Jury Subpoenas, 722 F.2d at 986 (2d Cir. 1983). 84 It is unprejudiced game to exact the preservation and production of data from plaintiffs’ personal computers, e-mail accounts, PDA’s and the like—because plaintiffs themselves own and control them. descry e.g., Electronic Discovery Special Report: Plaintiffs gain Their Own Duty to Preserve, Paul Weiner, Nat’l L.J., Dec. 19, 2011, available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202536136818&slreturn=1) (last accessed Apr. 15, 2012). In response to such legitimate demands, however, Plaintiffs often reflexively—and improperly—claim that employers are in a passage required to preserve their employees’ personal data—which is objectionable as employers outcome not possess and control such data. COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 23 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions of accessing an employees’ private communications, any expansion of an employer’s obligations should live avoided. As a practical matter, it may live difficult to narrowly tailor a search to segregate an employee’s personal information from his/her BYOD device. 5. Sanctions for failing to preserve The duty to preserve arises “when the party has notice that the evidence is material to litigation or when a party should gain known that the evidence may live material to future litigation.”85 Accordingly, employers must notify their employees of their duty to preserve, and not to destroy, utter potentially material information, including unique data on their dual-use devices. Employees should moreover live informed of the consequences of their deletion or alteration of material information or the destruction of their dual-use device to avoid the disclosure of otherwise personal information. When the employer is build on notice of its preservation obligation, notice may live imputed to its employees.86 Moreover, under general agency law, an employer may live deemed amenable for the spoliation of material evidence by its employees.87 For example, in E.I. Du Pont de Nemours & Co. v. Kolon Industries,88 the court held that the defendant-employer breached its duty to preserve when key employees deleted files and email items from their travail computers after they were issued litigation holds to preserve evidence for litigation. The court specifically rejected the defendants’ efforts to disassociate itself from the acts of its executives and employees’ spoliation to the company.89 Kolon Industries confirms that agency principles may govern a party’s responsibility for spoliation committed by its employees.90 In order for liability to attach, however, the employee must act within the scope of their employment.91 In Nucor Corp. v. Bell,92 the court refused to hold the defendant-company liable for its employee’s destruction of his own personal USB thumb drive that allegedly contained plaintiff’s confidential information. The court ruled that the defendant’s testimony implied that he destroyed the drive to protect himself (as opposed to his employer). The court moreover celebrated that the defendant did not consult with his employer prior to his deletion, indicating that he was acting for his own benefit, and not within the scope of his employment.93 Thus, an employer who has advised employees of the requisite to preserve information on their dual-use devices may live insulated from, or at least mitigate, spoliation sanctions if, ornery to the interests of the organization, the employee destroys information to shield themselves, and not their employer, from wrongdoing. 85 Zubulake v. UBS Warburg L.L.C., 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (“Zubulake IV”). 86 Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987) (imputed erudition prevents “an agency, corporate officer, or legal department [from shielding] itself from discovery obligations by keeping its employees ignorant.”); cf. New Times v. Arpaio, 217 Ariz. 533, 541, 177 P.3d 275, 283 (Ariz. App. 2008). 87 E.I. Du Pont de Nemours & Co. v. Kolon Indus., 803 F.Supp. 2d 469, 499 (E.D. Va. 2011); Victor Stanley Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 516 n.23 (D. Md. 2010) (“[A]gency law is directly applicable to a spoliation motion, and the flat of culpability of the agent can live imputed to the master.”); Goodman v. Praxiar, 632 F. Supp. 2d 494, 523 n.16 (D. Md. 2009) (“A party may live held amenable for the spoliation of material evidence done by its agents.”). 88 Kolon Indus., 803 F. Supp. at 499. 89 Id. 90 descry moreover Valentine v. Mercedes-Benz Credit Corp., 1999 U.S. Dist. LEXIS 15378, at *4 (S.D.N.Y. 1999). 91 Armstrong v. Food Lion, Inc., 371 S.C. 271, 276, 639 S.E.2d 50, 52 (2006) (“An act is within the scope of a servant’s employment were reasonably necessary to accomplish the purpose of his employment and in furtherance of the master’s business.”). 92 Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008). 93 Id. at 196.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 24 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ The bottom line is that a BYOD program can inject a host of e-Discovery complications into a matter that would not live at issue if a company owned the device, and companies adopting such policies must diagram to meet these challenges. E. Protection of Trade secret Information on Dual-Use Devices Prior to the advent of BYOD programs, most employers would gain disciplined or terminated an employee who brought their own storage devices into the workplace, or who copied company data onto their personal devices. Now, however, these actions are the intended result of a company BYOD program. The risks to the protection of company trade secrets must live carefully analyzed to ensure these risks are well-managed and balanced against the benefits. Indeed, even before the current BYOD trend, The Economist magazine reported that during this most recent economic downturn “60 percent of American workers who left their employers [in 2008] took some data with them.”94 Against that backdrop, with employees already demonstrating a willingness to hoist a company’s information when they depart, companies requisite to carefully manage the BYOD trend or potentially jeopardize their confidential information and trade secrets. These concerns are more heightened when dealing with today’s tech-savvy twenty and thirty-something employees. 1. The Uniform Trade Secrets Act To promote uniformity in commerce, and to assuage standardize the definition of a “trade secret,” 47 states gain adopted a version of the Uniform Trade Secrets Act (UTSA).95 Under the UTSA, the definition of a “trade secret” can apply to “[I]nformation, including a formula, pattern, compilation, program, device, method, technique” in which employers gain taken “reasonable measures” under the circumstances to protect the secrecy of the information.96 Amongst the three states that gain not adopted the UTSA—Massachusetts, New York, and Texas—courts from those states gain recognized a similar duty for employers to hoist reasonable measures under the circumstances to protect the secrecy of their information.97 94 Theft and the Downturn: Employers Beware—What Departing Employees hoist With Them, The Economist, Feb. 24, 2009, available at http://www. economist.com/node/13171494. 95 Ala. Code § 8-27-1 et seq.; Alaska Stat. § 45.50.940 et seq. Ariz. Rev. Stat. § 44-401 et seq.; Ark. Code Ann. § 4-75-601 et seq.; Cal. Civ. Code § 3426 et seq.; Colo. Rev. Stat. § 7-74-101et seq.; Conn. Gen. Stats. § 35-50 et seq.; Del. Code Ann. tit. 6, § 2001 et seq.; D.C. Code Ann. § 36-401 et seq.; Fla. Stat. § 688.001 et seq.; Ga. Code Ann. § 10-1-761 et seq.; Haw. Rev. Stat. § 482B-1 et seq.; Idaho Code § 48-801 et seq.; [765 Ill. Comp. Stat. § 1065/1 et seq.; Ind. Code § 24-2-3-1 et seq.; Iowa Code § 550.1 et seq.; Kan. Stat. Ann. § 60-3320 et seq.; Ky. Rev. Stat. Ann. § 365.880 et seq.; La. Rev. Stat. Ann. § 1431 et seq.; Me. Rev. Stat. Ann. tit. 10, § 1541 et seq.]; Md. Code Ann., Com. Law § 11-1201 et seq.; Mich. Comp. Laws § 445.1901 et seq.; Minn. Stat. § 325C.01 et seq.; Miss. Code Ann. § 75-26-1 et seq. ; Mo. Rev. Stat. § 417.450 et seq.; Mont. Code Ann. § 30-14-401 et seq.; Neb. Rev. Stat. § 87-501 et seq.; Nev. Rev. Stat. § 600A.010 et seq.; N.H. Rev. Stat. Ann. § 350-B:1 et seq.; N.J. Stats. § 56:15-1 et seq.; N.M. Stat. Ann. § 57-3A-1 et seq.; N.C. Gen. Stat. § 66-152 et seq.; N.D. Cent. Code § 47-25.1 et seq.; Ohio Rev. Code Ann. § 1333.61 et seq.; Okla. Stat. tit. 78, § 85 et seq.; Or. Rev. Stat. §646.461 et seq.; 12 Pa. Cons. Stat. § 5301 et seq.; R.I. Gen. Laws § 6-41-1 et seq.; S.C. Code Ann. § 39-8-10 et seq.; S.D. Codified Laws § 37-29-1 et seq.; Tenn. Code Ann. § 47-25-1701 et seq.; Utah Code Ann. § 13-24-1 et seq.; Vt. Stat. Ann. tit. 9, § 4601 et seq.; Va. Code Ann. § 59.1-336 et seq. Wash. Rev. Code § 19.108.010 et seq.; W. Va. Code § 47-22-1 et seq.; Wis. Stat. § 134.90 et seq.; Wyo. Stat. Ann. § 40-24-101 et seq. 96 The Model Uniform Trade Secrets Act as proposed by the National Conference of Commissioners on Uniform state Laws defines “trade secret” in Section 1(4) as: Information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the topic of efforts that are reasonable under the circumstances to maintain its secrecy. Uniform Trade Secrets Act § 1(4) (1979). It is moreover primary to note that several states gain modified the definition of a “trade secret.” 97 New York has not enacted any civil or criminal statutes defining trade secrets, and New York courts follow the common law and the definition of “trade secret” create in the Restatement of Torts § 757, remark b. Ashland Mgmt. v. Janien, 82 N.Y.2d 395, 407, 624 N.E.2d 1007, 1013 (1997). COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 25 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions The obvious risk to employers who outcome not hoist reasonable measures to manage BYOD policies is that they could undermine their ability to protect trade secret information. And this failure to hoist adequate measures to protect confidential information and trade secrets could jeopardize a company’s intellectual property. Nonetheless, according to a February 2012 study by the Ponemon Institute, “organizations often outcome not know if and what kindly of data is leaving their networks through non-secure mobile devices.”98 2. Reasonable measures to protect trade secrets in a BYOD environment The best drill for companies that deal in highly confidential intellectual property may live to eradicate BYOD devices from the workplace entirely, or at least disallow the drill for employees who travail with information the company considers its trade secrets or highly confidential. Instead, if new smartphones and tablets are necessary, or desired, then the company should respect purchasing them for the employees to ensure the company retains ownership and a practical flat of control over the devices and the data stored on them. However, for the many organizations that gain already adopted BYOD policies and permitted dual-use devices within the workplace, the problem becomes how best to manage the BYOD situation. To address concerns regarding BYOD practices, companies should respect a multi-tiered approach, which includes updating confidentiality agreements, taking practical steps within the workplace to safeguard confidential information and trade secrets, and relying upon post-termination efforts to preserve (if necessary) and then delete company information from departing employees’ dual-use devices. 3. Confidentiality agreements Under the UTSA, one of the well-recognized best practices to protect the secrecy of information is the utilize of confidentiality agreements.99 While having a policy or non-contractual document regarding confidentiality is helpful, the more recognized drill is to enter into confidentiality agreements with employees.100 An agreement with an employee has the added capitalize of clearly being enforceable after the employee departs the company, while it is not limpid that a company policy would continue to apply. States gain a varying patchwork of rulings regarding whether continued employment is adequate consideration for such restrictive covenants, and modifications and upgrades to existing agreements should live made with the counsel Texas has not enacted any civil statute defining trade secrets and, in civil matters, Texas courts generally follow the definition of “trade secret” create in the Restatement of Torts §757, remark b. Chapa v. Garcia, 848 S.W.2d 667, 671 (Tex. 1992). However, Texas has enacted criminal statutes defining trade secrets and imposing felony liability for the theft, copying, communicating or transmitting of a trade secret without the owner’s consent. Tex. Penal Code Ann. § 31.05. Massachusetts has not enacted any version of the Uniform Trade Secrets Act, but it has enacted a civil statute imposing tort liability for the misappropriation of trade secrets. Mass. Gen. Laws ch. 93, § 42. Massachusetts moreover has enacted a criminal statute that defines the term “trade secret” and imposes criminal sanctions for the misappropriation or theft of trade secrets. Mass. Gen. Laws ch. 266, § 30. The civil statute borrows the criminal statute’s definition of trade secret. Mass. Gen. Laws ch. 93, § 42. 98 Global Study on Mobility Risks, Survey of IT & IT Security Practictioners, Ponemon Institute, Feb. 2012 at 9. 99 However, companies with unionized employees must utilize dependence when using arbitration clauses, because a Company cannot contract directly with employees over terms and conditions of employment that are a mandatory topic of bargaining. Int’l Union, United Auto., Aircraft, & Agricultural Implement Workers of America, Local 180 v. J.I. Case Co., 26 N.W.2d 305, 310 (Wis. 1947); descry moreover general Elec. Co., 150 N.L.R.B. 192 (“The employer’s statutory duty is to deal with the employees through the union, and not with the union through the employees.”). 100 descry Metropolitan Foods d/b/a Driscoll Foods v. Kelsch, No.: 11-3306 (D.N.J. Feb. 12, 2012).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 26 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ of counsel.101 Consideration is, however, a resilient concept, and granting the employee the ability to utilize their personal device for travail purposes would likely live considered adequate consideration for the commitments the employer seeks regarding its confidential data that may live stored on the devices. 4. Practical measures When reviewing an employer’s efforts to hoist reasonable measures to protect its confidential information and trade secrets, courts moreover review what practical measures were deployed in the workplace to maintain the secrecy of the information.102 Examples of some of these steps are included in the Recommendations section (Section V.) at the discontinuance of this Littler Report. 101 McDonald and Lichty, Drafting and Enforcing Covenants Not to Compete, at 131-39 (BNA 2009). 102 Alabama: Allied Supply Co. v. Brown, 585 So.2d 33, 35-36 (Ala. 1991) (customer and vendor lists were not topic of reasonable efforts to preserve and maintain secrecy, and thus did not constitute trade secrets, where at least 10 employees had free access to the information, the employees did not gain written employment agreements or any noncompetition agreements, the information was not identified as “confidential,” numerous copies of the information existed, and employees frequently took the information home with them). Alagold Corp. v. Freeman, 20 F. Supp. 2d 1305, 1315-16 (M.D. Ala. 1998) (information was not topic of reasonable efforts to maintain secrecy, and thus not a protectable trade secret, where employees had free access to the information, information was stored in unlocked cabinets, the information was not identified as confidential, and employer did not maintain nondisclosure or noncompetition agreements with employees). California: Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 1523 (1997) (customer list was topic of reasonable efforts to preserve secrecy where it was stored on a computer with restricted access, employer required employee to execute employment agreement expressly referring to such information as confidential, and employer’s employee handbook included provisions prohibiting the disclosure or utilize of such confidential information). Connecticut: Charter Oak Lending Group, L.L.C. v. August, 127 Conn. App. 428, 437-39 (2011) (customer list was topic to reasonable efforts to maintain secrecy where, among other things, employer maintained computer security in that information was encrypted and password protected, physical security was maintained by passage of alarm system, employee handbooks identified such information as confidential, employees were not permitted to hoist information with them after departing employer). Florida: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dunn, 191 F. Supp. 2d 1346, 1351 (M.D. Fla. 2002) (employer established customer list information was topic of reasonable efforts to maintain secrecy and entitled to trade secret protection where employees signed nonsolicitation and nondisclosure agreements). Minnesota: Nordale, Inc. v. Samsco, Inc., 830 F. Supp. 1263, 1274 (D. Minn. 1993) (despite employer’s conclusory claims that it treated its information as confidential and restricted access to those on a need-to-know basis, the court create no evidence to back such claims and held the employer failed to Make reasonable efforts to maintain secrecy of information, and the information thus did not constitute a trade secret, where the employer failed to build individuals on notice regarding the confidentiality of such information and did not require individuals to mark confidentiality agreements). Aries Information Systems, Inc. v. Pacific Mgmt. Sys. Corp., 366 N.W.2d 366, 369 (Minn. Ct. App. 1985) (employer took reasonable steps to maintain secrecy of information where it required employees to mark confidentiality agreements). Missouri: Conseco Finance Servicing Corp. v. North American Mtg. Co., 381 F.3d 811, 819 (8th Cir. 2004) (applying Missouri law; employer took reasonable steps to maintain secrecy of information where utter employees recognized the information was confidential and not to live disclosed and employer’s employee handbook identified such information as “strictly confidential”). Pennsylvania: A.M. Skier Agency, Inc. v. Gold, 747 A.2d 936, 941 (Pa. Super. Ct. 2000) (employer made reasonable efforts to preserve secrecy of client information where the information was password protected and employer’s employee handbook included provision stating that employer owned such information). Virginia: Dionne v. Southeast Foam Converting & Packaging, Inc., 240 Va. 297, 301-303, 397 S.E.2d 110, 112-113 (1990) (information was topic of reasonable efforts to maintain secrecy where employer required employees, suppliers, customers, contractors, and visitors to employer’s manufacturing plant to execute confidentiality agreements). Washington: Precision Moulding & Frame, Inc. v. Simpson Door Co., 77 Wash. App. 20, 27-28, 888 P.2d 1239 (1995) (information create not to live topic of reasonable efforts to maintain secrecy, and thus not a trade secret, where no agreement existed to preserve the confidentiality of the information and the person from whom such information was acquired took no steps to preserve its secrecy).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 27 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 5. Proving misappropriation of trade secret information The UTSA imposes liability where a “misappropriation” of trade secrets occurs.103 A “misappropriation” requires the “use” or “disclosure” of the trade secret information or the “acquisition” by “improper means” of the trade secret. “Improper means” includes “theft,” “bribery,” violations of confidentiality obligations, and “espionage.”104 BYOD policies may Make it more challenging for an employer to prove “misappropriation” under this standard, because the employee was permitted to store the company’s trade secrets on the employee’s dual-use device.105 As a result, the focus will more likely live upon the improper “use” or “disclosure” of the alleged trade secret. But finding evidence of such utilize can live more challenging when BYOD policies are in effect. Under circumstances where the employer owns the computing devices, a former employee’s devices can easily live gathered and analyzed for evidence of a “misappropriation.” Quite often it is primary to proceed quickly with the litigation process where the employer suspects a “misappropriation” has occurred. Yet these steps can live much more challenging if the employer does not own the device, and the employee has already left the company’s employ. First, the employer will not likely obtain access to the employee’s smartphone or tablet without threatening or commencing a lawsuit. Once a lawsuit is commenced, the employer may seek to anatomize and review the employee’s smartphone and tablet. Before that process commences, the employer will likely requisite to serve formal discovery and enter into a protective order with the employee, which will restrict the employer’s access to the employee’s private files and records. Negotiating a protective order can live time-consuming and expensive. Likewise, serving written discovery to collect and anatomize an employee’s devices adds to the expenses incurred by the employer. And, because employees 103 The Model Uniform Trade Secrets Act defines “Misappropriation” in Section 1(2) to mean: (i) acquisition of a trade secret of another by a person who knows or has understanding to know that the trade secret was acquired by improper means; or (ii) disclosure or utilize of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire erudition of the trade secret; or (B) at the time of disclosure or use, knew or had understanding to know that his erudition of the trade secret was (I) derived from or through a person who had utilized improper means to acquire it; (II) acquired under circumstances giving surge to a duty to maintain its secrecy or restrict its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or restrict its use; or (C) before a material change of his [or her] position, knew or had understanding to know that it was a trade secret and that erudition of it had been acquired by accident or mistake. Uniform Trade Secrets Act § 1(2) (1979). 104 The Model Uniform Trade Secrets Act defines “improper means” in Section 1(1) as including “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” Uniform Trade Secrets Act § 1(1) (1979). 105 USI Ins. Servs. L.L.C. v. Miner, 801 F. Supp. 2d 175, 196, n. 21 (S.D.N.Y. 2011) (evidence of misappropriation where employee uses travail e-mail address to e-mail file to personal e-mail account); EMC Corp. v. Arturi, 2010 U.S. Dist. LEXIS 132621, at *18 (D. Mass. Dec. 15, 2010) (former employee took with him from former employer “a thumb drive containing thousands of [the former employer’s] confidential files”); ABT, Inc. v. Juszczyk, 2010 U.S. Dist. LEXIS 91613, at **10-11, 17 (W.D.N.C. Aug. 9, 2010) (misappropriation established where former employee “copied confidential, proprietary, and trade secret information maintained on his [work] laptop and belonging to [his former employer] to his personal Seagate external hard drive”); Haldeman-Homme, Inc. v. Donahoe, 2006 U.S. Dist. LEXIS 63450, at **12-13 (D. Minn. Sept. 5, 2006) (former employee sent confidential information to his personal, home e-mail address); Liebert Corp. v. Mazur, 357 Ill.App.3d 265, 281-282 (2005) (former employee downloaded 60 megabytes of data from former employer’s limited access server to his home computer); LeJeune v. Coin Acceptors, Inc., 381 Md. 288, 313-15, 849 A.2d 451 (2004) (misappropriation by “improper means” where employee copied his employer’s computer files to a CD); Rapid Temps, Inc. v. Lamon, 144 N.M. 804, 809-10 (N.M. Ct. App. 2008) (misappropriation established where employee copied former employer’s confidential information to her home computer and zip drives); but descry Applogix Dev. Group, Inc. v. Dallas Cent. Appraisal Dist., 2006 U.S. Dist. LEXIS 61564, at *16 (N.D. Tex. Aug. 29, 2006) (“That a former employee copies his personal hard drive before he departs does not transform those files into valuable, proprietary data guarded to the requisite degree to meet the trade secret test. A showing must soundless live made that a specified trade secret exists.”).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 28 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ may back-up their devices on their home computer or a cloud-based service, an employer can find itself expending considerable legal and computer forensic resources to assemble and review information from multiple sources. F. utilize of Dual-Use Devices By Contingent Workers In addition to the risks to company information when employees depart, companies should moreover focus on the risks of workers who relate their organization and may bring with them confidential or trade secret data from their prior employment. This problem is especially acute in the case of contingent workers, who, due to their itinerant nature, may pass through any number of companies in a short period of time or may travail for more than one company simultaneously. If a contingent worker’s former employer moreover had a BYOD policy, the new company should hoist steps to avert lawsuits by the former employer by ensuring that the contingent worker’s former employer’s confidential or trade secret information does not find its passage into the new company’s systems through the worker’s dual-use device or other storage media. 1. general considerations The kinds of contingent workers that present special issues in the BYOD context are principally independent contractors and temporary employees assigned by staffing firms. However, for purposes of BYOD issues, it moreover makes sense to respect as portion of the contingent workforce any retained outside consultants from established firms who, unlike temporary employees and individual contractors, are not supervised by internal staff but who nevertheless travail on a company’s premises with generous access to company information and computing resources. A common drill that is similar to the outside consultant arrangement is the on-site supervisor placed by a staffing solid to manage the relationship with the hiring company and a great number of temporary employees assigned to a site (usually 50 or more). Companies frequently provide such on-site coordinators the selfsame office space, integrated communications, and other tools they provide to employees, but in many situations, this access is provided without the accustomed protections offered by company policies or employee contracts. Although Professional Employer Organizations (PEOs) are usually grouped with staffing firms, the workers that they payroll and administer for their customers are not independent or transient and are therefore not really contingent in the passage they weigh in it in this Report. Workers provided through a PEO are regarded as the customers’ own main workforce, and PEOs typically manage each customer’s entire workforce, so the BYOD issues with PEO situations are the selfsame as with companies’ direct workforces. Even so, the company should coordinate with its PEO to ensure that, between the two employer firms, a complete and consistent BYOD policy is promulgated to the workforce. A company’s rights and protections with respect to BYOD issues in the contingent workforce depend principally on the language of their contracts with the independent contractors or with the staffing firms and consulting organizations that residence them. Regrettably, many of these contracts will live documented on the vendor’s form agreements, which attend to omit many of the protections a company may requisite and which disclaim or severely restrict the vendor’s liability. A further problem is that the employment agreements or other contracts, if any, that the vendors gain with the individuals they allot may not fully position the vendors to back a company’s rights vis-à-vis the contingent workers. COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 29 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions Consequently, attention should live paid to both levels of contracts. Companies are moreover well advised to manage this issue by creating agreements with the individual contingent workers to address these gaps. 2. Individual onboarding considerations Most companies gain complicated processes for requiring their new employees to mark employment agreements and other documents that set up rules, obligations, and protections for the company. But contingent workers typically outcome not travel through this process. They are often brought in directly by operating units concerned only with their immediate operational needs, without the involvement or even the erudition of Human Resources, the legal department, or other gatekeepers, thereby bypassing established HR processes that deal with: • Preservation of the company’s intellectual property. • return of company property. • Management of passwords and user IDs in company systems and compliance with the company’s broader information protection policies and procedures. • Protection of confidential information and trade secret information. • Adherence to ethical and behavioral codes. • Disclaimers of entitlement to company capitalize plans and fringe capitalize policies, including those affecting computers and communications devices. • Regulation of utilize of company IT systems. Ironically, this risk even extends to staffing agencies with respect to their own risks as operating companies. They may want protective documentation when they draft members of their own temporary employee population to perform jobs in their internal staffing operations. This is the so-called “in-house temporary” phenomenon. Contingent workers who utilize dual-use devices moreover create another, perhaps even greater, risk for companies. They may live simultaneously working for other companies and will most certainly travail for other businesses when their current engagements end. Thus, procedures to ensure that data are removed from the devices of these contingent workers before their engagements discontinuance are critical.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 30 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ IV. BEHAVIOR-RELATED CHALLENGES OF BYOD A. Performance Management The overall key to managing employee performance and productivity is to set limpid values and expectations and then hold employees accountable. For employers with BYOD programs, drawing lines around what is and is not usurp utilize of dual devices is challenging, but vital. Employers should revise their policies to establish the usurp values and expectations in reaction to new issues created by dual-use devices; it is imperative that employers effectively educate employees on the company’s rules regarding personal devices and their implications for and interactions with corporate values. Many employers are finding gaps in policies and procedures regarding usurp utilize of technology because the rules were based on the functionality of devices that existed when the policies and procedures were initially drafted. Today’s smartphones and tablets are not just cellphones. They are cameras, voice recorders, scanners, calendars, clocks, navigation systems, gambling devices, portable movie theatres, bookstores, magazine racks, games, and computers. Policies and procedures should no longer live specific to the hardware but instead should address the broad range of activities for which these devices can live used. Employers typically forbear from developing policies that attempt to regulate off-the-clock behavior, but when employees are using personal devices sanctioned by the employer for utilize in the course and scope of employment, the lines between travail and personal time blurs. When looking at regulating what employees can outcome with a smartphone, employers must live heedful not to infringe on personal “freedoms,” while moreover not inadvertently creating an environment that easily allows the entry of repellent material into the workplace. Several years ago, an employer in South Carolina terminated an employee who refused to hoist his confederate flag sticker off of his personal lunch box. Ultimately, the Fourth Circuit create that the employer had a legitimate, nondiscriminatory basis for terminating the employee.106 Dual-use devices may live the new “lunch box” for employers, and employers should craft new policies and procedures that anticipate the risks associated with allowing the devices in the workplace. Moreover, given that employees may utilize their personal devices for conduct outside of the workplace that would not live permitted on travail premises, there is a significant likelihood those activities may bleed over into the workplace. For example, the icons for some Apps or photographs stored on the device may not live suitable for work, yet the employee will live using that selfsame device to conduct work. Employers will requisite to find ways to deal with the consequences of this blurring of the lines. B. Equal Employment opening & Dual-Use Devices One region where the “lunchbox” analogy may live tested is the issue of harassment claims based upon the content of an employee’s dual-use device. Federal, state and local law requires employers to provide their employees and prospective employees with equal employment opportunities (EEO) in the terms and conditions of their employment. More specifically, federal EEO laws prohibit discrimination and harassment based on race, color, national origin, ancestry, 106 Dixon v. Coburg Dairy, Inc. 330 F.3d 250 (4th Cir. 2003). COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 31 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions sex, and religion;107 veteran status,108 genetic information,109 pregnancy,110 age;111 physical or mental disability;112 and require reasonable accommodation of qualified people with disabilities.113 Some states and local governments are even more expansive, e.g., prohibiting discrimination based on sexual orientation,114 and the EEOC recently recognized a claim of employment discrimination based on gender identity, change of sex and/or transgender status under Title VII.115 Federal, state and local EEO laws moreover prohibit retaliation against employees based on their opposition to unlawful discrimination or harassment or participation in any investigation, proceeding, or hearing concerning such a practice.116 Most employers embody these legal prohibitions in their own employment policies. The utilize of personal devices for travail purposes creates two primary EEO challenges for employers seeking to follow the law. One involves preventing and remediating harassment based on a hostile environment. The other involves reasonably accommodating qualified persons with disabilities. 1. Unlawful harassment based on the existence of a hostile travail environment Employers must provide their employees with a workplace free of unlawful harassment, including harassment based on the existence of a hostile travail environment. An employee may establish the existence of such an environment if she shows that specific conduct created an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Sexual harassment is one form of harassment, but harassment claims may live based upon any other protected characteristic. material factors for determining the existence of a hostile travail environment comprehend the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s travail performance. As celebrated above, some employees who utilize their own devices for travail may utilize their personal devices for activity and content that violate company EEO policies. They may not solemnize carefully enough the boundaries between conduct that is private and conduct that may create a hostile environment for coworkers. For instance, an employee who brings his personal smartphone to utilize on the job may believe his ownership of the device itself entitles him to watch pornographic videos with others in the workplace. Likewise, an employee may believe that using online resources places him or her beyond the employer’s purview and insulates the employer and employee from liability. Two cases underscore how mistaken this view can be. In Blakey v. Continental Airlines, Inc.,117 a female pilot complained of a sexually hostile travail environment based upon the content 107 Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. 108 Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq. 109 Genetic Nondiscrimination Act, 42 U.S.C. §§ 2000ff et seq. 110 Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k). 111 Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. 112 Rehabilitation Act of 1973 (Rehab Act), 29 U.S.C. §§ 701 et seq.; Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq. 113 ADA, 42 U.S.C. §§ 12101 et seq. 114 See, e.g., Colo. Rev. Stat. §§ 24-34-401(7.5), -402(1). 115 Macy v. Holder, [EEOC conclusion in Appeal No. 0120120821] and discussion in Littler’s DC Employment Law Blog available at http://www. dcemploymentlawupdate.com/2012/04/articles/eeoc-1/eeoc-finds-claim-of-discrimination-based-on-gender-identity-transgender-status-iscognizable-under-title-vii/. 116 See, e.g., 42 U.S.C. § 2000e-3(a) (Title VII). 117 751 A.2d 538 (N. J. 2000).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 32 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ on an Internet message board used by pilots and crew members to exchange personal and commerce information. Some of the postings on the board included sexual comments about the female pilot, and she sued for sexual harassment. The New Jersey Supreme Court had to respect whether, as plaintiff argued, the message board was an extension of the workplace, much enjoy a bar where employees gathered after work. The court rejected Continental’s controversy that it did not control the message board and consequently, had no control over its harassing content. Instead, the court create that the company failed to hoist remedial action when it became aware of potential harassment. Similarly, in Espinoza v. County of Orange,118 the California Court of Appeals recently upheld a jury verdict based on a state-law claim of disability harassment based on the employer’s failure to hoist adequate steps after learning of inappropriate online and workplace conduct toward the plaintiff. In that case, the plaintiff was a probation department employee. From birth, his birthright hand had two diminutive stubs but had no fingers or thumb. His coworkers created two blogs outside of travail in which they posted derogatory, disability-related comments about him, including references to his hand (and him) as “the claw.”119 Someone told the plaintiff about the blogs, and he read them daily for about six weeks before reporting the 220 pages of comments to his supervisors. The plaintiff alleged the employer emailed employees to request that they shut down the blog, but the blog continued for another eight weeks, and the workplace harassment did not stop. The employer shut down access to workplace computers through generic logins but not through personal logins of employees even though that would gain been effortless to do. Plaintiff gave the employer names of those coworkers whom he believed were posting the comments, but the employer did not interview him or them. The plaintiff filed suit, went to visitation and was awarded $820,000, including $500,000 in emotional distress damages. On appeal, the employer relied on Blakey, asserting that the blogs were not “’so closely related to the workplace environment and beneficial to [the employer] that a continuation of harassment on the forum should live regarded as portion of the workplace.’”120 The appeals court disagreed, noting that Blakey moreover taught that “the employer has a duty to quit co-employee harassment when the employer knows or has understanding to know that such harassment is portion of a pattern of harassment that is taking residence in the workplace and in settings that are related to the workplace....’”121 This was especially true because the employer’s investigation revealed that the co-employees accessed the blog on workplace computers, that the blog entries referred both directly and indirectly to plaintiff and referred to work-related issues, and that the supervisors believed employees were posting because they sent emails to them because of the blog entries. If Blakey recognized that conduct outside the traditional office could create employer liability for harassment, and Espinoza applied it even in the absence of limpid benefits of the harassment to the employer, Guardian Civic League v. Philadelphia Police Dept.122 demonstrated that the scope of potential liability for such conduct could live substantial. In that case, two police fraternal and a civil rights organization filed suit in 2009 against the Philadelphia Police Department and others on behalf of utter African American police officers for hostile environment based upon race, 118 Case No. G043067 (consol. with G043345) (Cal. App. 4th App. Dist. Feb. 9, 2012) (unpublished). 119 Id. at 5. 120 Id. at 12 (quoting Blakey, 751 A.2d at 543). 121 Id. (quoting Blakey, 751 A.2d at 552). 122 Civil Action No. 2:09-cv-03148-CMR (E.D. Pa. filed July 15, 2009).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 33 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions race discrimination and conspiracy to confide civil rights violations. The plaintiff alleged that the police department permitted, participated in, encouraged and let its computers live used in the operation by a police sergeant of a website called “Domelights,” on which he and other lively duty white police officers anonymously posted racist and repellent content about African American officers and then ignored complaints about that content.123 The parties settled the case in 2011. Although the police never admitted liability, the settlement provided more than $170,000 in economic relief for plaintiffs, as well as attorneys’ fees, consultant fees and training and a commitment to a variety of remedial and preventive non-economic measures.124 The Blakey and Espinoza courts concluded, and the plaintiffs Guardian Civic League plaintiffs alleged, that online activity by employees could create vicarious liability for employers for the racially hostile travail environments resulting from that activity. These cases assuage to demonstrate that employers that permit employees to utilize their own technology for travail purposes without exercising at least some control over those devices may permit those employees to extend the scope of their workplace and more easily create, access and utilize content that become an integral portion of their workplace. Exercising control over how employees utilize their personal devices in the workplace or on travail time is essential to reducing risk for creation or maintenance of a hostile travail environment. The most expeditious ways of doing this are prohibiting the utilize of those devices for any travail purposes, establishing written policies limiting the utilize of private devices and websites outside the workplace to avoid harassing other employees, and blocking access to and sharing of inevitable repellent content. However, employers that gain decided to allow dual-use devices, should respect the following: • Crafting and training supervisors and employees on a policy concerning the utilize and misuse of utter electronic resources during travail time and on travail premises. • Modifying existing policies to ensure that they cover harassment by coworkers and others for off-duty conduct that creates a hostile travail environment. • Training utter employees concerning the proper use/misuse of dual-use devices125. 2. Failure to reasonably accommodate qualified persons with disabilities There are circumstances when an employer may live obligated to accommodate an employee who brings their own device to travail with additional assistive technology that might assuage that employee perform the essential functions of a job. The ADA requires employers to provide current or prospective employees who are qualified individuals with physical or mental disabilities with reasonable accommodations to permit them to perform the essential functions of a job unless doing so would understanding undue hardship.126 A qualified person with a disability is able to perform a job’s 123 Id., Complaint (E.D. Pa. filed July 16, 2009) (alleging claims under 42 U.S.C. §§ 1981, 1983, 1985 et seq.). 124 descry generally Stipulation of Dismissal, Civil Action No. 2:09-cv-03148-CMR (E.D. Pa. filed June 29, 2011 [Docket No. 48]. 125 For further suggestions about how to regulate dual-use technology, descry Managing Employees’ utilize of Personal SmartPhones and Tablets for travail in Littler’s Workplace Privacy Blog. 126 42 U.S.C. § 12112(a), (b)(5)(A) (1994). descry US Airways, Inc., 535 U.S. at 400. (“An ineffective modification or adjustment will not accommodate a disabled THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 34 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ essential functions with or without a reasonable accommodation. Under the ADA, employers must engage in an interactive process in which it has ongoing, edifying faith communication with employees about their known disabilities. Through the interactive process, the current or prospective employee may clarify whether “any change in the travail environment or in the passage things are customarily done” would allow the individual to perform the essential functions of the job.127 A modification or adjustment is “reasonable” if it appears to live “feasible” or “plausible.”128 Where several reasonable accommodations are possible, the employer has discretion as to which option it chooses to implement.129 The employer requisite not elect the “best” accommodation or the accommodation the employee seeks. Rather, “the employer has the ultimate discretion to elect between efficient accommodations, and may elect the less expensive accommodation or the one which is easier for it to provide.”130 Employees who utilize their own devices pursuant to a BYOD policy may seek an accommodation to the extent their device supplies them with some form of assistive technology that helps them perform the essential office of their job.131 For example, an employer may live required to pay for assistive software for the employee’s device or otherwise pay for the employee’s device if it contains some kind of assistive office necessary for a qualified employee to perform the essential office of their job. In Rojek v. Catholic Charities of Jackson, Inc.,132 for example, a blind applicant for a sociable travail position requested, among other things, a special document reader to outcome the essential functions of her job. The court held that the applicant could travel to visitation over whether the request was reasonable. Similarly, in Herring v. Department of sociable and Health Services,133 a blind employee requested the utilize of an eyesight assistance viewer to review a training manual, but the employer claimed that the assistive technology was unreasonable because it was too expensive. A jury create for the employee and the court upheld the jury award because there was enough evidence to display that the requested accommodation was reasonable and the employer failed to accommodate her. In Rojek and Herring, the employers relied heavily on the undue hardship134 defense to the general duty to accommodate a qualified person with a disability. But generalized conclusions about undue hardship are insufficient. individual’s limitations.”) (emphasis original). Many states, such as California through its unprejudiced Employment and Housing Act, impose comparable obligations. Cal. Gov’t Code § 12900, et seq. 127 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). 128 descry US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996); Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995).129 descry Scott v. Montgomery County Gov’t, 164 F. Supp. 2d 502 (D. Md. 2001). 130 descry Salmon v. West Clark Community Schools, 64 F. Supp. 2d 850, (S.D. Ind. 1999); Allen v. Georgia Power Co., 980 F. Supp. 470 (N.D. Ga. 1997); Scott v. Montgomery County Gov’t, 164 F. Supp. 2d 502, (D. Md. 2001); Kuehl v. Wal-Mart Stores, Inc., 909 F. Supp. 794, (D. Colo. 1995); Salmon v. West Clark Community Schools, 64 F. Supp. 2d 850, (S.D. Ind. 1999); Zimmerman v. general Motors, Delphi Energy & Engine Mgmnt Sys. Div., 959 F. Supp. 1393 (D. Kan. 1997). 131 descry 29 C.F.R. § 1630.2(o)(2)(i-ii) (1997). 132 2010 U.S. Dist. LEXIS 52056 (E.D. Mich., May 27, 2010). 133 81 Wn. App. 1 (1996). 134 The Model Jury Instructions from the Employment and Labor Relations Law Committee of the American Bar Association define "undue hardship" as: significant rigor or expense incurred by the defendant when considered in light of (1) the nature and net cost of the accommodation needed; (2) the overall fiscal resources of the defendant and the number of persons employed by the defendant; and (3) the kind of the Defendant's business, including the composition, structure, and office of the Defendant's travail force. Instruction 1.06[c]. descry moreover 42 U.S.C.S. § 12111(10) (1998) (outlining factors to live considered in determining whether an accommodation would impose an undue hardship). COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 35 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions Instead, undue hardship must live based on an individualized assessment of current circumstances that display that a specific reasonable accommodation would understanding significant rigor or expense.135 The law may well require the employer to provide assistive technology to travail in conjunction with or back a disabled employee’s personal devices, or to reimburse them for the expense of assistive devices they already had acquired for utilize with their personal devices. These can live costly accommodations and consequently, an employer should live heedful to address these issues when deploying a BYOD program. In particular, employers should: • Train supervisors and employees on how to recognize an accommodation request with respect to a dual-use device. • Recognize that reliance on a cost-prohibitive controversy may not live enough to reject an employee’s request for an accommodation. • In the event an employee requests an accommodation (i.e., assistive technology or software), live prepared to engage in the interactive process with the employee (i.e., gain a meaningful discussion with the employee about her needs and whether or how the company can meet those needs). C. Wage & Hour Issues 1. Off the clock travail Allowing nonexempt employees to utilize their own mobile devices to conduct work-related commerce involves the risk that those employees will raise wage and hour claims for “off the clock” work. Even if a nonexempt employee uses his or her personal device voluntarily and without directive from the employer, the employee must live compensated for the time spent making work-related calls or reading and writing emails. Both the federal unprejudiced Labor Standards Act (FLSA) and state laws require that nonexempt employees live paid for utter time worked, including overtime. This includes utter time that employees are “suffered or permitted” to perform work.136 Notably, it is not a defense that an employer did not instruct the employee to perform the extra work. Simply put, if the employee performed the travail and there is any passage for the employer to know that the travail was performed, the employee must live paid, even if the travail performed was not authorized in further by the manager.137 This situation commonly arises where nonexempt employees are receiving, reading, and/or responding to emails (or phone calls) during non-working hours. Because employees are likely to always gain their personal device with them, this problem can live exacerbated if those personal devices now receive work-related emails and alerts during off-work hours. An employer’s initial response to avoiding overtime and off–the-clock liability may live to prohibit employees from accessing email or making/receiving work-related calls outside of working hours. In inevitable circumstances, this may live an employer’s best option. However, this blanket prohibition may not live practical and may not outweigh the benefits 135 descry 29 C.F.R. pt. 1630 app. §1630.15(d) (1996); descry moreover Stone v. City of Mount Vernon, 118 F.3d 92 (2d Cir. 1997) (an employer who has not hired any persons with disabilities cannot claim undue hardship based on speculation that if it were to hire several people with disabilities it may not gain adequate staff to perform inevitable tasks). descry 29 C.F.R § 1630.2(p)(2) (factors that an employer must respect in determining whether an accommodation poses an undue hardship). 136 29 U.S.C. §§ 203(g), 207(a); 29 C.F.R. § 785.11. (“Work not requested but suffered or permitted is travail time”). 137 29 C.F.R. § 785.12 (“If the employer knows or has understanding to believe that the travail is being performed, he must weigh the time as hours worked.”)THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 36 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ to an employer in having a resilient workforce that is accessible remotely. Furthermore, the blanket prohibition may not live adequate to avoid liability if it is not thoroughly communicated to employees and employees are not disciplined for accessing the employer’s emails or making or taking work-related phone calls outside of working hours. Similarly, an employer’s policy prohibiting unauthorized overtime, including overtime incurred through the utilize of mobile devices, is inadequate if it is not enforced by the employer. If the off-the-clock email/phone convoke situation only arises on an incredibly rare basis (e.g., twice a year) and the time taken to read and/or respond to an email or phone convoke is less than a pair of minutes, the employer may live able to hoist the position that the travail is de minimis and requisite not live paid. However, the likelihood that off-the-clock travail is de minimis is typically slight and this position is a risky one, especially where employees are using their personal devices to perform work. Rather, more commonly, employees frequently check their mobile devices throughout the day and evening, even on the weekend, and if they descry a travail email, they will read it and may very well respond to it. Even if it only took a minute or two at the most, the frequency with which the employee checks the device may eradicate the de minimis defense.138 Also, the mobile device records will not only display that calls and emails were sent and received, but moreover how often this situation occurred, which is likely more common than rare. Further, it is not uncommon to descry a manager responding back to an after-hours email from a nonexempt employee thanking him or her for responding so quickly, which not only reinforces that the nonexempt employee performed the work, but moreover that the manager clearly knew about it and should gain made positive the employer paid the employee.139 Once an employer knows an employee is performing travail outside of travail hours, the question becomes, how can this travail live tracked? As a general matter, employers should gain a policy in residence requiring employees to record utter time worked, including time worked out of the office and outside regular office hours.140 This policy can live expanded and clarified to expressly require employees to record time spent responding to emails and answering phone calls while out of the office. An employer may moreover institute a policy requiring prior written authorization to travail remotely via mobile device. The policy could moreover address the timing for responding to after-hours emails and instruct employees that, unless they are directed to provide an immediate response, utter emails should live responded to only during working hours. While employees’ personal devices will obviously bleep, ring, buzz or otherwise alert them to every email or convoke received, even during non-working hours, this approach directs employees to ignore, and not disburse time reading, or even opening emails from a manager or travail colleague during non-working hours. With the underlying policies in place, the employer must then communicate these policies to affected employees and consistently invoke the policies to ensure that utter time spent accessing work-related emails or making/receiving work-related phone calls is tracked and recorded and that employees who outcome not comply with the policies are appropriately disciplined. Managers should moreover live trained to comply with the policy and recognize when they are 138 descry Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984) (“[I]n determining whether otherwise compensable time is de minimis, they will respect (1) the practical administrative rigor of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.”). 139 In fact, because an employer’s own data and device records will display when a nonexempt employee has performed work, the employer may gain an duty to regularly review such records in order to ensure employees are paid for such time worked. 140 Indeed, employers are required to retain accurate records of utter time worked by nonexempt employees. descry 29 C.F.R. § 516.2.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 37 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions putting nonexempt employees in jeopardy of working outside of working hours (e.g., sending an email to a nonexempt employee after hours). Managers could live instructed to originate emails sent to nonexempt employees during non-working hours with an instruction regarding whether the email is something that the employee needs to address immediately or the employee should wait to review and respond to the email during normally scheduled working hours. One situation frequently overlooked is how to address employees who are on a leave of absence from travail (e.g., disability, maternity, etc.) and their ability to receive and respond to work-related calls and emails during a period when they are supposed to not live working. This situation arises not just with nonexempt employees, but moreover with exempt employees on an unpaid leave of absence.141 One approach is to revise leave of absence policies to remind employees that they are not to live performing travail during a leave of absence, and emphasize that this prohibition includes avoiding and not responding to utter calls and emails received during this period. However, this kind of approach rarely works when employees are already checking their device for personal calls and emails because completely disregarding, ignoring, and deleting utter work-related communications can live incredibly challenging, especially if the employer is using the email system to communicate with the employee regarding his/her leave of absence status and eventual return-to-work. Obviously the most complete solution is to deactivate the employee’s connection to the company’s data and systems and/or reconfigure the system so calls and emails are redirected to another employee to address. If possible, this is the preferred approach because it minimizes the risk that employees will live performing work, for which they should live paid, during an unpaid leave of absence.142 Employers moreover requisite to carefully respect how they will wield the time employees disburse procuring or repairing their dual-use devices. If, for example, the company decides not to directly back the employee devices and instead directs the employees to utilize third party service providers such as Apple’s Genius Bar or Best Buy’s Geek Squad, outcome they requisite to pay employees for the time they disburse supporting the device? This problem may not live that significant for employers that only allow employees to utilize smartphones or tablets, but for companies that extend the program to cover laptops as well, the time spent troubleshooting PC repairs or configuration issues can live significant. 2. Expense reimbursement An employee’s utilize of his or her own mobile device moreover raises the question of whether the employer is required to reimburse the employee for the cost of the device, data plan, or monthly phone bill. Under federal law, the FLSA prevents employers from requiring an employee to pay for commerce expenses of the employer if doing so reduces the employee’s earnings below the required minimum wage or overtime compensation.143 Further, eleven states gain express or implied statutory expense reimbursement requirements that may or could live interpreted to require reimbursement of an employee’s utilize of his/her personal device for work-related purposes.144 141 The Federal Family and Medical Leave Act allows a salaried employee who satisfies the executive, administrative, or professional exemption under the FLSA to live paid on an hourly basis for travail performed during a covered leave of absence. 29 C.F.R. § 825.206(a). However, for non-FMLA leaves of absence, such an employee’s exempt status may live jeopardized if the employee is not paid in accordance with the salary basis requirements of the FLSA (e.g., replete workweek salary typically must live paid for any workweek in which the employee performs work). descry 29 C.F.R. § 541.600 et seq. 142 Employees’ receipt of state disability benefits or short-or long-term disability insurance benefits may moreover live jeopardized if employees are performing travail and receiving wage payments during a leave of absence that is supposed to live unpaid. 143 29 C.F.R. §§ 531.35; 531.36; 531.37. 144 California Labor Code section 2802 places a broad requirement on employers to reimburse utter commerce expenses. Laws in Montana, North Dakota and THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 38 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ While a number of states require reimbursement, in particular, California law requires that employers reimburse employees for utter “necessary expenditures or losses incurred... as a consequence of the discharge of his/her duties.”145 Unfortunately, there is not a distinguished deal of guidance construing California’s section 2802. However, it appears that whether or not expenses must live reimbursed will depend on whether or not the employees were required to incur the expense as a result of their employment.146 If the utilize of the mobile device is entirely deliberate and solely for the employee’s convenience, an employer may squabble that the expenses requisite not live reimbursed. But, if employees are using their own devices to expand responsiveness and ensure positive performance evaluations, the deliberate utilize of the mobile device may become reasonable, and thus compensable as an expense. Employers who are obligated to reimburse or who voluntarily elect to reimburse employees for the work-related usage of personal devices physiognomy the challenge of determining what amount to reimburse. Obviously the easiest system is for the employer to pay the replete cost of the employee’s device and cellular bills/data plan, but this approach results in overpayment to the employee. There are moreover tax implications to live considered. For reimbursement payments to live exempt from payroll and income taxes, the payments must live made pursuant to an “accountable plan.”147 To live deemed “accountable,” an employer’s reimbursement diagram must satisfy three rules: (1) the expenses reimbursed under the diagram must gain a commerce connection, i.e., they must live necessarily incurred as a result of the employee’s travail duties; (2) the employee must adequately account to the employer for these expenses within a reasonable period of time; and (3) the employee must return any excess reimbursement within a reasonable period of time.148 The more accurate reimbursement option is the actual expense method. This system involves reimbursement of the actual expense of using an employee’s personal device for commerce purposes. Before smartphones, this was the preferred system because employees’ cellphone bills showed every convoke made and it was viable to outcome a pro-rata allocation between commerce versus personal calls. Today this system is less viable where employees gain flat fee or unlimited data plans, making it impossible to identify what portion of the device’s usage was spent on commerce versus personal activities. Plus, in order for a reimbursement diagram to live afforded tax-exempt status under an accountable plan, the information supplied by the employee must meet the Internal Revenue Service’s very detailed recording and tracking requirements, which is not always viable with unlimited data and utilize programs. South Dakota require reimbursement of utter “necessary” expenditures incurred by an employee as a result of the discharge of the employee’s duties, and would likely require reimbursement of an employee’s personal device use. descry Mont. Code Ann. § 39-2-701(1); N.D. Cent. Code § 34-02-01; S.D. Codified Laws § 60-2-1. There is no regulation or statute directly on point, but the Department of Labor in New Hampshire has taken the position that an employer requisite not reimburse an employee for personal mobile device utilize as long as there is a written agreement stating the employee will not live reimbursed for such expenses. descry N.H. Rev. Stat. § 275:57 and telephonic feeling received on April 30, 2012. Laws in Alaska and Minnesota outcome not require reimbursement for rig that employees may utilize for their own purposes outside of work. descry 8 Alaska Admin Code § 15.160(a); Minn. Stat. § 177.24(4). Arkansas, Iowa, Kentucky and Michigan utter gain laws requiring reimbursement of any expense incurred by employees that would bring their compensation below minimum wage, which could result in a part requirement to reimburse such expenses. descry Code of Arkansas Rules and Regs., 010-14-107(A)(2); 875 Iowa Admin. Code 217.35(91D); Ky. Admin. Reg. 1:080(4); and MCLS § 408.477(1). 145 Cal. Lab. Code §2802. 146 descry Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 562 (2007) (“In calculating the reimbursement amount due under section 2802, the employer may respect not only the actual expenses that the employee incurred, but moreover whether each of those expenses was ‘necessary,’ which in revolve depends on the reasonableness of the employee’s choices.”). 147 IRC §§ 62(a)(2); Treas. Reg. § 1.62-2(c)(4). 148 IRC §§ 62(a)(2)(a), (c); Treas. Reg. §§ 1.62-2(c)(1), (d)-(f).COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 39 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions California’s Supreme Court has confirmed that employers in that state can satisfy their reimbursement obligations to employees by utilizing a lump sum payment method.149 Under this method, the employer simply makes a fixed amount payment each pay period to cover an employee’s business-related expenses. The payment can hoist the form of a fitful expense allowance or can live enhanced compensation, such as an expand in the employee’s foundation salary, commission rate or hourly wage. Unfortunately, there is no set formula for an employer to determine what amount or percentage of an employee’s monthly data diagram would live considered business-related versus personal use. Plus, while the lump sum reimbursement system may live simple to administer, it raises a concern regarding whether the amount being paid is adequate to fully cover the employee’s expenses. If an employer uses an enhanced compensation payment (e.g., by increasing the employee’s commission rate), the employer runs the risk that the employee earns lower than anticipated commissions, thereby not earning enough to fully compensate the employee for expenses incurred. In California, an employee must moreover live afforded the ability to challenge the sufficiency of a reimbursement payment and, if valid, the employer must pay the difference.150 Finally, the aspect that makes the lump-sum payment system so attractive—the want of paperwork—may simultaneously Make it the most risky from a tax perspective. Without an accounting of expenses submitted by employees, the lump-sum reimbursement system may fail to qualify as an accountable plan. As a result, utter reimbursement payments are potentially topic to payroll and personal income taxes, thereby increasing both parties’ tax burdens. Moreover, if the lump-sum payment exceeded the actual expenses, the employee would live obligated to return the excess or risk destroying the accountable status of the plan. In sum, an employer should respect having a policy in residence to track the utilize of dual-use devices for travail purposes to ensure that employees are compensated to the extent the travail performed on the devices is reasonable and necessary and reimbursement is required by state or federal law. If an employer wishes to gain a travail compel that utilizes personal mobile devices for travail purposes, the employer should evaluate the costs to live incurred by employees and federal and individual state wage and hour requirements, and determine whether to institute a policy to reimburse employees for expenses incurred related to the performance of work, including reimbursement for business-related phone calls, data plans, commerce applications and mobile devices with email capabilities. Reimbursement methods can provide for payment of actual expenses or a lump sum payment estimated to fully compensate employees, but determining the amount to live reimbursed and the tax treatment of these payments gain inherent challenges. D. Workplace Safety and Health (OSHA) While an injury or illness caused by utilize of a device for purely personal utilize will seldom create employer liabilities, dual-use of a device can create work-related injuries and illnesses that are governed by the Occupational Safety and Administration (OSHA) and state workers’ compensation law. Further, distracted driving while using a mobile device can result in injuries to employees and third parties that can result in significant liability. 149 Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554 (2007). 150 Id. at 571.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 40 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ 1. Repetitive stress—“Blackberry Thumb” and “Text Neck” The American Society of Hand Therapists (ASHT) has issued a warning regarding repetitive stress injuries to the thumb and many physicians agree. Similarly, other groups and physicians gain warned that neck injuries can live caused by cradling a diminutive cellphone between the head and shoulder or by continuously bending the neck straight down to read a diminutive screen. When an employee begins using their own device for work-related purposes, the travail relationship of any injury will live largely established and will live very difficult to part from the effects of personal utilize of the device. These potential injuries will heighten the requisite for employers to provide training and guidance on ergonomic utilize of dual-use devices, including but not limited to usurp body mechanics, total time spent using the device, and reporting any discomfort for usurp review and responses. 2. Brain injury from cellular signals Mobile devices emit a form of electromagnetic radiation called radio frequency (RF). During use, the body tissues next to where the phone is held absorb RF energy. Heating is the only known biological outcome of RF energy. lofty doses of RF energy understanding localized tissue heating, but RF exposure does not understanding an expand in body temperature. A user’s exposure to RF energy depends on several factors including: the model of the device; the amount of time the user spends on the device; whether the user is using a hands-free device; the amount of mobile traffic in the region at the time of use; and the distance to the nearest tower (the farther away the user is from a tower, the more RF energy it takes to derive a signal). The amount of RF energy absorbed from the device is called the specific absorption rate (SAR). The Federal Communications Commission (FCC) regulates SAR levels, and device manufacturers must report the SAR flat of their products to the FCC. The current SAR flat restrict is 1.6 watts per kilogram of body weight. To date there gain been no successful legal claims regarding device phone radiation, but, as celebrated above, dual-use of a device may establish travail relationship exposing employers to OSHA regulation or workers’ compensation claims. 3. Distracted driving and other activities Drivers can live distracted for many reasons, including mobile device use. According to the National Highway Safety Council, nearly 5,500 people died (16% of utter fatalities) and 500,000 were injured in crashes in 2009 involving a distracted driver. Statistically, a texting driver is 23 times more likely to live involved in a crash. Further, a study by Car and Driver create it takes a texting driver twice as long to react than one who is legally intoxicated. Based on these statistics, the Occupational Safety and Health Administration (OSHA) started a Distracted Driving Initiative. While the initiative covers utter reasons for distracted driving, OSHA’s initial stress is on the dangers of texting while driving. In addition to encouraging employers to gain a policy prohibiting employees from texting and talking on cellphones while driving, OSHA states it will investigate and issue citations under the general Duty Clause if it receives a complaint that a company requires its employees to text while driving or “organizes travail so that texting is a practical necessity.” The general Duty Clause is a catch-all for OSHA, and simply obligates employers to create and maintain a safe and healthful workplace. Monetary penalties for general Duty and other OSHA violations are limited by statute and are based on the severity of the incident and the employer’s past safety record, among other factors. However, of greater fiscal concern is the possibility that an employer will live liable for damages to persons injured COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 41 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions in an accident caused by a worker using a cellphone while driving on company business. There gain been several jury verdicts and settlements in the $15-25 million range in cases involving drivers who were allegedly distracted by using their cellphones as portion of their work. Other than OSHA’s intended enforcement of the initiative through its general Duty Clause and a DOT guidance banning commercial truck drivers from texting, the federal government has not enacted any laws prohibiting talking or texting while driving, although Transportation Secretary Ray LaHood has identified distracted driving as a “national epidemic” and called upon Congress to enact a law for a federal ban applicable to any kind of vehicle on any road in the country. Several states, however, gain passed laws of this nature: 30 states plus the District of Columbia and Guam prohibit utter drivers from texting while driving, and eight states and the Virgin Islands prohibit utter drivers from using hand-held cellphones. Other states only prohibit school bus drivers from using a cellphone while driving (e.g., Arizona) or teens from talking and/or texting (e.g., Indiana). No states gain banned utter cellphone utilize while driving, despite research showing no incompatibility in accident rate when a driver is holding the cellphone versus using a hands-free device. According to the DOT, over 2,000 U.S. companies already gain adopted distracted driving policies covering over 12 million workers. Implementing and enforcing an efficient mobile device utilize policy not only protects employees and the public from the dangers of distracted driving, it moreover can reduce OSHA citations and protect companies from being amenable for paying lofty amounts in damages for accidents caused by device utilize while driving. E. Deploying BYOD in a Unionized Workforce utter employers, irrespective of whether they are unionized, should live aware of inevitable concerns related to device policies and monitoring employee use, as there is the potential for liability under the National Labor Relations Act (NLRA). 1. Consult applicable collective bargaining agreements If a company is considering implementing a BYOD program and has a unionized workforce, it should consult the terms of the collective bargaining agreement covering the employees to determine if there are any applicable restrictions. For a unionized workforce, merely implementing mobile devices of any kind into the workforce may live topic to bargaining, depending on the terms of the collective bargaining agreement. The two-part test used to determine whether the implementation is a mandatory topic of bargaining is whether it: (1) is “plainly germane to the ‘working environment’”; and (2) does not amount to those “managerial decisions, which lie at the core of entrepreneurial control.” 2. Implementing a policy is a mandatory topic of bargaining Once an employer decides to utilize mobile devices, the implementation of a policy or diagram to govern employees’ utilize of these devices is a mandatory topic of bargaining according to the National Labor Relations Board (NLRB). An employer needs to elect whether its policy will require employees to follow utter other employer policies, including the non-solicitation policy and any restrictions that the employer imposes on sociable media activity. Importantly, the NLRB has issued decisions recently affecting these and other policies, and the policies in question should live discussed with counsel for potential concerns. A policy for a unionized workforce requisite not live identical to a policy for the employer’s non-unionized workforce and may provide for different restrictions or rights. THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 42 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ 3. Monitoring the device is permissible if consistent in frequency and scope When crafting the policies that will apply to dual-use devices, employers must determine whether and to what extent they will monitor the utilize of the devices. Monitoring may hoist the form of reviewing applications employees install on their dual-use devices to avert the installation of insecure apps or monitoring the websites employees visit to ensure employees are adhering to other company policies. If an employer decides to monitor employees’ use, non-unionized and unionized employers alike requisite to live heedful since the NLRB considers surveillance of employees unlawful when a company’s monitoring impinges on an employee’s birthright to engage in organizing activities or otherwise exercise his or her Section 7 rights. In general, the utilize of overt surveillance or monitoring for legitimate commerce reasons such as theft or violence is permissible under the NLRA, irrespective of union presence. This is true even in the middle of an organizing campaign. However, employers requisite to live heedful of the limitations on their ability to monitor employees in circumstances that involve union campaigning or protected, concerted activity. Specifically, employers cannot utilize the monitoring to identify union activity nor can they utilize the monitoring in a manner that would attend to tamper with, restrain, or coerce employees in the exercise of union activity. If employers stumble across employees engaged in union activity, the employer will requisite to live able to prove it was engaged in a legitimate drill (for instance, monitoring for safety or theft reasons and the employer did not change the focus or frequency of the monitoring). In addition, employers cannot give the stamp of monitoring for union activities, such as suggesting the monitoring of employees’ email or text communications to a union commerce agent, even when no monitoring is actually occurring. The NLRB has create that the surveillance of workers, or the stamp that workers are being watched, can constitute unlawful interference with Section 7 rights because it may give workers the sense that management is peering over their shoulders and thus stifle protected activity. 4. Electronic devices affecting the terms and conditions of employment When an employer is given the discretion on how to implement state or federally mandated regulations, the NLRB takes the position that it is required to contract over the implementation and effects of any changes. For example, if a company wanted to install an App on mobile devices to change the system for reporting hours of service under the Department of Transportation regulations from a paper log to an automated log, the company would requisite to contract with the union over the implementation and the effects of such change. There are conflicting decisions in this area, however, and other decisions gain stated that when the technology merely changes the passage an employee reports his or her location, such as pitiful from a manual two-way radio to a Global Positioning System (GPS), such change is not a mandatory topic of bargaining. What is limpid is that when the company intends to utilize data from dual-use devices when issuing discipline, potentially affecting an employee’s continued employment, such repercussion is a mandatory topic of bargaining. 5. Union’s birthright to view or obtain a copy of the data gathered Companies operating in a unionized environment must moreover bethink the union has the birthright (usually in the context of an investigation or a grievance) to obtain information from the company concerning the data or images captured by any existing cellphone, cameras or electronic devices unilaterally installed by the employer. Before an employer elects COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 43 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions to utilize any features of mobile devices or their applications to track employees’ locations or the applications installed on their devices, for example, the company should respect the potential duty to provide this data to the union. Moreover, the company may exact to contract with the union over usurp confidentiality terms relating to the release of such information. F. International Legal Challenges Several cross-border challenges exist for companies with employees who travail outside the United States or who travel internationally. 1. border security searches Employees who travel internationally race the risk of a search by border control and security staff of the singular country they visit and upon their return to the United States. Unlike other searches by an agent of the U.S. government, a search at the border does not require a suspicion of criminal activity.151 The Department of Homeland Security (DHS) in 2009 issued specific directives that address the search and detention of international travelers’ electronic devices. To this end, the Directive152 issued by the U.S. Customs and border Protection (CBP), covers a wide array of electronic rig and provides “guidance and criterion operating procedure for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices.” Similarly, the U.S. Immigration and Customs Enforcement (ICE) issued a Directive153 to its officers regarding their “border search authority to search, detain, seize, retain and partake information contained in electronic devices possessed by individuals at the border.”154 The traveler’s consent is not required for the search.155 Further, asserting that the information is protected against disclosure under the attorney-client privilege will not necessarily exempt the data from the search.156 The Directives sheperd the officers to consult with the agency’s legal counsel or the local attorney’s office before proceeding with the search.157 Business’s confidential information and other sensitive information (such as medical records) will live treated with “special care,” but again is not exempted from review and analysis.158 Finally, the agent may detain the device for days to complete a “thorough border search,” which could understanding major inconvenience.159 151 descry Bret E. Rasner, International Travelers Beware: No Reasonable Suspicion Needed to Search your Electronic Storage Devices at the Border, 3 Phoenix L. Rev. 699 (2010). 152 CBP Directive No. 3340-049, Aug. 20, 2009. 153 ICE Directive No. 7-6.1, Aug. 19, 2009. 154 Id., Section 1.1 155 Id., Section 8.1(3). 156 CBP Directive Section 5.1.1 and ICE Directive Section 8.6(2)(b). 157 Id. 158 CBP Directive Section 5.2.2 and ICE Directive Section 8.6(2)(a) and (c). 159 Under the CBP Directive, the detention can live up to five days. Section 5.3.1. The ICE Directive, however, states that searches “generally [should] live completed within 30 calendar days.”THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 44 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ 2. Risk of commercial espionage activity According to recent press reports160 a number of singular governments and some companies in inevitable singular countries gain improved their technical ability to remotely access electronic devices used in their territories to harvest data. Due to the increased risk of such unauthorized access to and downloading of confidential commerce data, companies gain taken precautionary measures such as issuing their employees who travel international with loaner devices that gain been scrubbed of utter company confidential information. 3. Stricter control of working hours The wage-hour laws in singular countries vary in two major respects from the unprejudiced Labor Standards Act and similar U.S. state laws. First, the class of employees who are exempt is very small, and frequently limited only to a handful of top executives. Second, the laws set maximum weekly or monthly working hours (which includes overtime hours). As a result, employers must restrict working hours or physiognomy enforcement action and penalties. To effectively control actual working hours of employees, companies in Europe, such as Volkswagen in Germany, are shutting down their e-mail servers after hours so employees cannot work. Only very senior executives are exempt from this preventive measure. In the instance of Volkswagen, the e-mail servers quit routing e-mails 30 minutes after the discontinuance of employees’ shifts, and resume 30 minutes prior to the start of their shift the next day.161 4. Privacy challenges outside the United States The privacy laws protecting personal information of employees in other countries are quite different than those in the United States. A discussion of the differences is beyond the scope of this Report, but U.S. companies with employees outside the U.S. should carefully evaluate their BYOD policies and their planned utilize of software to manage the devices to ensure they comply with local laws. While an in-depth analysis of privacy issues related to BYOD in the international context is beyond the scope of this Report, the International sheperd to Employment and Labor Law should live consulted as it covers privacy and related employment law issues in 54 countries plus a chapter on the European Union. 160 See, e.g., Traveling Light in a Time of Digital Thievery, N.Y. Times, Feb. 1, 2012. 161 descry Volkswagen turns off Blackberry e-mail after travail hours, BBC News, Dec. 23, 2011, available at http://www.bbc.com/news/technology-16314901.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 45 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions V. RECOMMENDATIONS Over the next year to no more than three years, virtually every company will requisite to address the issues raised by this Report. The significant growth of mobile devices and their utilize by employees to conduct business—with or without the company’s support—combined with the continued blurring of the line between personal and travail lives will compel employers to respond. Companies will Make different decisions depending on the company’s employee mix, the sensitivity of the data they handle, the mobility of their workforce, the company’s risk tolerance, and other factors. For some, a BYOD program will live the best response. For other companies, a more usurp approach may live to tender employees a greater preference of mobile devices and retain ownership of the device that stores company data. However, for this approach to gain traction with employees frustrated by carrying two devices, companies may requisite to moreover relax traditional restrictions on the utilize of company technology for personal use. For those companies that elect to follow the BYOD approach, the following recommendations will assuage navigate the complicated employment law issues. A. Implement New Policies Due to the wide variety of issues a BYOD program creates, it is challenging to provide a unique sample policy for an employer to adopt. This rigor is made even more challenging with an attempt to adopt one global BYOD policy. Rather, the policy and technology decisions the company makes will likely require subtle modifications to many existing policies, including: • Harassment, Discrimination, and Equal Employment Opportunities • Workplace Safety • Time Recording and Overtime • Acceptable utilize of Technology • Compliance and Ethics • Data Privacy and Security • Records Management • Litigation Holds • Confidentiality and Trade secret Protection Below, they gain outlined basic recommendations for new or revised policies that finger on utter of these areas. 1. elect which employees should live permitted to participate in a BYOD program As celebrated in several sections above, dual-use devices may not live usurp for utter employees within a company. Employees in some positions pose greater challenges, and perhaps should not live allowed to utilize dual-use devices, such as: • Senior executives whose data is more likely to live material in litigation. • Employees in research and evolution roles who are likely to wield trade secret information.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 46 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ • Sales staff who may gain a hold on the goodwill of customers and who, because they are using a personal device, will continue to utilize their selfsame telephone number when they hoist their device with them when they leave. • Nonexempt staff who could claim the dual-use device caused them to travail “off the clock”. • Contractors and other contingent workers who may live simultaneously performing travail with their personal devices for other customers. 2. Address off-the-clock travail If nonexempt employees will live permitted to utilize dual-use devices, address the utilize of dual-use devices outside travail hours as well as the requisite to properly record time. If the devices used by employees allow for different rings or alerts for incoming travail and personal emails or messages, respect requiring employees to utilize them to distinguish travail and personal alerts. This may assuage restrict claims by employees for overtime pay for checking their devices every time a work-related message arrives during off hours. 3. Check collective bargaining agreements Companies with unionized travail forces should moreover review their collective bargaining agreements to determine whether their policies regarding handheld devices, whether BYOD or not, are covered. If so, a best drill is to bargain, at least to impasse, the implementation of the policies and issues regarding how violations of those policies—as well as the utilize of information collected from the devices—will live used for disciplinary purposes. Having policies and procedures in residence to ensure any monitoring is routinely reviewed and followed by usurp investigation and disciplinary action when necessary will assuage reduce the risk of liability from a labor management standpoint. 4. Reduce expectations of privacy live limpid with employees regarding the issue of their privacy when using dual-use devices and the company’s viable requisite to access their device for record retention or litigation holds or investigations. If preservation for litigation is necessary, companies will likely requisite to copy the entire device and will not live able to differentiate between personal data and company data at the time of collection. 5. Require employee consent Before allowing employees to utilize dual-use devices to perform work, companies should obtain their written consent to: • Monitor the device, including the data they store on it and transmit with it. • Remotely wipe the device, including any personal information they gain stored on the device. • Install security software to manage the device and secure the data stored on it. • Copy their data to meet litigation hold demands and record retention obligations. 6. Access is a privilege Company policies should Make limpid that the ability to utilize a dual-use device is a privilege, not a right, and that access can live terminated at any time.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 47 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 7. utter other policies apply Companies should remind employees that utter other company policies apply when they utilize their dual-use device during travail hours or on travail premises, including policies against discrimination, harassment, acceptable utilize of technology, etc. Companies should moreover respect modifying existing policies to ensure they cover new challenges, such as: • Harassment by coworkers for off-duty conduct that creates a hostile travail environment. • Responding to accommodation requests from employees related to dual-use devices. 8. Provide dual-use devices upon demand, preserve data, and delete backups Because dual-use devices will hold company data, it is likely that at some point the requisite will arise to retrieve data from the device to comply with litigation holds, internal or regulatory investigations, or record retention obligations. Employees will requisite to provide access to the device for this to occur. Employees should live instructed to preserve this data, and not discontinuance or alter it, until it can live copied from the device. In addition, employees must understand the requisite to remove company data from any backup copies or synchronized versions of their devices that may exist on the employees’ other personal computer devices, storage systems, or cloud-based storage services or applications. 9. follow edifying security practices Due to the inherently mobile nature of dual-use devices, they are frequently lost or stolen. Employers should respect at least the following security options: • Regularly remind employees to utilize stalwart passcodes to protect their device. • Require that employees not disable or alter the security settings on their devices. • Prohibit employees from upgrading the operating system on their devices until the company has had an opening to ensure that Mobile Device Management software will continue to protect the device. • utilize the Mobile Device Management software to compel stalwart passwords, or at least prohibit simple passwords. • Remind employees they must hoist dependence to physically secure their device against theft, loss, or unauthorized use. 10. Immediately report lost/stolen devices Most Mobile Device Management software gives employers the ability to remotely delete utter the data stored on a device, which is commonly referred to as “wiping” a device. However, this command cannot live sent successfully unless the device has battery power and is lively on the cellular network or Internet. If an employee does not report the loss or theft of a device immediately, the company may not live able to transmit the wipe command to the device. Therefore, employees should live required to immediately report any lost or stolen devices. 11. Compliance with configuration instructions The operating system for the device, as well as the Mobile Device Management software or other security software, will almost certainly requisite to live configured or updated from time to time. This will likely require employees to hoist THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 48 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ manual steps to assist in the process. Therefore companies should require employees to assist with this process and comply with utter instructions regarding the configuration of the device. 12. No friends and family Unless the company has used security software (described below) that creates a separate, password-protected “Sandbox” to segregate company data from personal data, companies should prohibit employees with dual-use devices from sharing those devices with friends and family. This may live very difficult to enforce, but can live captious to the protection of company data. 13. restrict utilize of cloud-based storage for company data Employees using dual-use devices should live instructed not to utilize any cloud-based storage or services to store company data without approval of the company. This will ensure sensitive personal or fiscal data, and company trade secrets are not stored with vendors that outcome not gain usurp security controls in residence and a contract that binds them to protect this data. If remote backup or sharing of files is primary for commerce purposes, companies should respect following IBM’s lead and develop their own “fit for business” plans. By structure their own Apps to provide necessary functionality, they can meet employees’ needs but mitigate the risks to company data. If this is not feasible, companies can explore developing master agreements with cloud vendors that will apply to employees’ utilize of the service. 14. assuage desk back Companies must elect whether they will provide assuage desk back for employees’ dual-use devices. If not, they should respect what steps employees should hoist before they seek back from third-party vendors to avert company data from being accessed during the back process. For example, companies may wish to remotely delete data from employees’ devices before they seek support. Companies should moreover carefully evaluate whether they are required to compensate nonexempt employees for the time they may disburse fixing and maintaining their dual-use devices. 15. Mobile device safety Regardless whether any given state has laws regarding the utilize of cellphones or texting while driving, companies should adopt a policy outlining the rules for employee utilize of cellphones, mobile devices, and other distracting technology while driving on company business, including: • A statement that the company does not tolerate texting or talking on a hand-held device while operating a company vehicle or while operating a personal vehicle on company business, including answering or making phone calls, engaging in phone conversations, viewing the Internet, and reading or responding to e-mails and text messages. • Instructions to employees on what they should do, such as pulling over to a safe residence when a convoke is made or received or an email or text message needs to live read or sent; changing voice mail greetings to testify they are not available to retort calls or return messages while driving; and informing customers about the policy to account for why they sometimes may not live able to retort or return calls, emails, or text messages immediately.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 49 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions An efficient policy not only supports an isolated employee misconduct defense when an employee engages in distracted driving under OSHA, it moreover may restrict or even eradicate a company’s liability for damages for accidents caused by employees talking on cellphones or texting while driving. An efficient policy moreover can live used to prove the employer took reasonable measures to avert distracted driving accidents, thereby adhering to the proper criterion of care. 16. Consequences for failure to comply Remind employees that a violation of policies applying to dual-use devices, just enjoy utter other company policies, will lead to disciplinary action, up to and including termination. B. Develop Employee Agreements To live effective, many of the policies listed above must apply to employees after they leave the company. To ensure they will soundless apply after the employee leaves, companies should respect addressing these issues in an agreement with the employee and require employees to execute these agreements as a condition of being allowed to utilize dual-use devices.162 If the company already has confidentiality, non-compete, or non-solicitation agreements that address postemployment activities, these provisions could live added to those agreements. 1. Arbitrability Inevitably, disputes will arise between employers and employees concerning the utilize (or misuse) of electronic devices. These could comprehend disputes over ownership, privacy, cost, repair, breaches in security, post-employment retention of data, misappropriation of trade secrets, harassment, disability accommodations, and more, including novel issues that cannot even live contemplated at this time. Arbitration may live one avenue for resolving these disputes and may gain several advantages over court litigation, including lower costs, greater efficiency, increased privacy and having a neutral expert fact finder (usually a veteran attorney or retired judge) resolve the matter. Almost certainly, disputes related to dual-use devices would live arbitrable. The United States Supreme Court recently held that unless Congress specifically excludes a particular dispute from arbitration, the Federal Arbitration Act (FAA)163 requires that courts invoke agreements to arbitrate the dispute.164 Therefore, in the absence of a federal statute banning arbitration of disputes relating to personal devices, companies covered by the FAA (for the most portion any company engaged in interstate commerce is covered, although inevitable classifications of workers engaged in interstate transportation are not165) should live able to require employees to submit disputes related to dual-use devices to binding arbitration. The arbitration agreement can live drafted to broadly cover any and utter disputes arising out of or relating to the employment or can live limited to disputes arising out of or relating to the utilize of the dual-use devices.166 In the latter case, 162 However, companies with unionized employees must utilize dependence when using arbitration clauses, because a Company cannot contract directly with employees over terms and conditions of employment that are a mandatory topic of bargaining. descry note 1015, supra. 163 9 U.S.C. §§ 1 – 16. 164 Compucredit Corp. v. Greenwood, 2012 U.S. Lexis 575 (Jan. 10, 2012). 165 9 U.S.C. §§ 1, 2. 166 “[P]arties may coincide to restrict the issues topic to arbitration.” AT&T Mobility L.L.C. v. Concepcion, 131 S.Ct. 1740, 1748 (2011).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 50 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ in exchange for being able to utilize their preferred personal device, employer contribution to or funding of the purchase of the device or the monthly data plans, the employee would live required to coincide to arbitrate device-related disputes. In the former situation, an agreement covering utter disputes arising out of relating to the employment relationship likely would live construed to comprehend disputes relating to the device.167 For employers who already gain implemented a broad form arbitration agreement, disputes relating to dual-use devices likely already are covered. Therefore, if employers outcome not want to gain disputes related to dual-use devices included within the scope of their agreements to arbitrate, it will live necessary to modify the agreements to expressly comprehend a carve-out for such disputes, making them non-arbitrable. dependence must live taken in drafting or creating exceptions to any ADR agreement. For example, if an employer carved out of its arbitration program utter disputes relating to the utilize of a dual-use devices, could an employee covered by that agreement who claims to gain been shown sexually specific photographs that a coworker maintains on his device claim that her sexual harassment claim is no longer arbitrable because it arises from her coemployee’s “use” of his dual-use device? Here, as in many areas of labor and employment law, perhaps the issue may not so much live a “be heedful what you wish for” problem, but rather one that arises from the concomitant “law of unintended consequences.” C. Implement Technical Controls Many of the risks discussed above can live mitigated by the utilize of software that allows a company to control dualuse devices. The specific controls vary from depending on the device and the mobile platform it uses. 168 1. Mobile Device Management software Most mobile devices can live managed using Mobile Device Management (MDM) options built into the operating system for the device. These MDM features allow companies to remotely manage and configure many aspects of dualuse devices. Some of the more common security controls these tools allow a company to implement include: • Require encryption of utter data stored on the device • Require stalwart passwords for access • compel the wipe of the device after 10 unsuccessful password attempts • Lock the device after a period of inactivity to avert unauthorized utilize if the device is inadvertently left available or is lost or stolen • Prohibit “jailbroken” devices169 • utilize the remote wipe features to delete utter data on the device • utilize remote location features (e.g. the iOS “Find My iPhone” feature) 167 “[A]ny doubts concerning the scope of arbitrable issues should live resolved in favor of arbitration....” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25 (1983). 168 For example, an Apple publication entitled Deploying iPhone and iPad Mobile Device Management describes the many options available for configuring Apples iOS devices, including iPhones and iPads is available at http://images.apple.com/iphone/business/docs/iOS_MDM.pdf. 169 The term “jailbreak” refers to the process of bypassing features or protections built into the Operating System of the device. For example, some users “jailbreak” Apple iPhones to allow them to live used with other cellular carriers or to install applications not approved by Apple. The process of jailbreaking a device can interlard security vulnerabilities.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 51 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions • avert the installation of an unapproved applications or blacklisting others • Forcing the encryption of device backups Companies should carefully review the features provided by the MDM software and elect which should live used and how they should live configured to best meet the company’s goals and culture. Afterward, steps should live taken to validate that the software was successfully deployed and that utter the desired settings were implemented. This kind of software is readily available on almost every kind of mobile device platform available today. Given the flat of risk mitigation MDM tools offer, employers should respect leveraging these controls almost as a matter of course. However, as celebrated below, the adoption of these controls must live accompanied by usurp policies and training. 2. respect creating a part corporate “Sandbox” In addition to the basic MDM options, some companies now tender software that creates a virtual container or “Sandbox” for the storage of company information and the applications employees can utilize to travail with that information. This Sandbox approach can assuage segregate travail from personal data. If a “wipe” command needs to live sent to the device, this kind of software can restrict the deletion to the data in the corporate “sandbox.” While this software can provide additional protections and capabilities, companies should live heedful not to assume that it entirely addresses utter risks. Companies will soundless requisite to depend upon policies, agreements, or training of their employees to ensure they outcome not create, store, or transmit company data using applications located outside the corporate Sandbox. The Sandbox approach moreover provides no protection for the company data that employees store with cloud–based services. 3. restrict the BYOD program to platforms the company can back Before allowing employees to elect particular devices as portion of a BYOD program, companies should carefully evaluate the platforms and operating systems and ensure they can effectively manage them using the selected MDM software. Vendors update Apps, operating systems, and devices on a regular basis. The combination of these changes can live challenging to manage given the constant evolution cycle. As a result, companies may find it advisable to restrict the types of devices and platforms employees can utilize to allow the company to ensure adequate management of the devices. 4. utilize enterprise Apps or virtualization technologies to restrict the data stored on dual-use devices Companies can moreover restrict the amount of corporate data that is stored on employees’ dual-use devices by choosing how to allow access to company data. Some companies allow employees to utilize their personal devices as a system to access data stored on the company network, while prohibiting them from downloading the data to their devices. As celebrated earlier in this Report, Citrix offers software that allows employees to securely access a version of their company computer and the network using their personal devices. By eliminating, or at least limiting, the company data stored on the device, many of the data-related concerns can live addressed or at least mitigated. THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 52 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Other companies are creating company-sponsored Apps that allow employees to interact with corporate systems and obtain information they requisite to outcome their job while controlling how much data is actually stored on their personal devices. D. Implement New or Revised Operating Procedures In addition to new or revised policies, companies must moreover respect whether they requisite new operating procedures to deal with the challenges posed by dual-use devices. The sections below picture some of the operating procedures a company should comprehend in its initial review, and this list should live supplemented by controls necessitated by a company’s particular policy choices and corporate culture. 1. diagram for lost or stolen devices Employers should develop and test internal processes for employees to follow when their devices are lost or stolen. If the company does not already gain an established reporting process, it should respect identifying a department or group within the company—typically the IT back or assuage desk function—to live the central residence to which employees can report that their devices gain been lost or stolen. 2. Develop a remote wipe process The group that receives reports of lost or stolen devices must understand how to utilize the MDM software to delete data from the device. These staff moreover requisite to live sensitive to the pitfalls of executing a remote wipe in situations where employees gain not consented to this action. In any event, a remote wipe command usually must live sent quickly due to the relatively short battery life of many mobile devices. Once the device has lost power, or is no longer on a network, the device can no longer receive the wipe command. 3. Remind PC users to implement antivirus protection at home Employers should remind employees to install up-to-date antivirus software on their home PCs or other devices to which they synchronize their dual-use device (if such sychronization is permitted). Many mobile operating platforms comprehend this functionality, and when the device is synchronized the data can live backed up to the employee’s home PC. If this data is not encrypted, it could live topic to unauthorized access if the employee has malware on their home computer. 4. Revise exit interview processes Because employees will now gain corporate data stored on their own personal devices, the company’s exit interview process will requisite to live reevaluated to ensure that corporate data is removed from the device, as well as from any backups or cloud-based storage used by the employee. In situations where an employee may gain stored on her device company trade secret information, data topic to a litigation hold, or data that must live protected due to various privacy regulations, the company should carefully review the following as a portion of the exit interview process. • What devices the employee used, had access to, and submitted on any expense reports. • What information may live stored on the employee’s dual-use devices.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 53 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions • What efforts should live used to preserve data stored on the employee’s dual-use devices before the device is wiped and whether the company needs to retain an outside forensic consulting solid to assuage preserve and collect this evidence. utter too often a company’s well-intentioned IT staff can irreparably damage electronic evidence. • Disable the employee’s ability to connect utter mobile devices to the company’s systems. 5. Revise litigation hold policies and procedures Companies should revise their litigation hold policies and procedures to ensure that dual-use devices are included in the scope of litigation holds. Moreover, the company should ensure that its staff or vendors that perform collections of data for litigation are trained and gain the tools necessary to collect data from the wide variety of devices used by employees. Companies should moreover educate managers, IT staff, and legal counsel about the risks of accessing employee data stored in personal e-mail accounts and other online services and develop a policy for addressing such access. Employers should moreover develop limpid policies and procedures for IT staff to follow when collecting and reviewing data from employees’ dual-use devices to protect against access to information that may create additional risk for the employer, including evidence of disabilities, genetic information, personal or attorney-client privileged information of the employee, as well as usernames or passwords that may provide access to personal e-mail accounts or cloud-based storage that may live protected by federal or state laws. 6. Continuously update procedures and policies Because the operating systems and applications available to mobile device users change rapidly, companies should regularly reevaluate their policies, procedures, and agreements to identify new risks that requisite to live addressed. 7. Evaluate insurance coverage Companies should moreover evaluate their insurance policies to determine whether additional “cyber-risk” policies may provide additional protection or mitigate the data-related risks described in this paper. Companies should moreover respect checking with their insurance companies or brokers to verify that incidents arising from employees’ utilize of their own personal devices are covered by the company’s insurance policies. 8. Revise contingent worker contracts Companies that utilize contingent workers should review their contracts and add provisions that prohibit or strictly regulate the utilize of personal devices by contractors and contingent workers and require that they adhere to the company’s other information security policies and procedures. 9. Evaluate reimbursement plans Companies should respect whether the reimbursement policies they gain adopted comply with applicable laws regarding employee compensation. Whether and how much reimbursement for device costs or monthly plans is required will depend on a variety of factors, including what employees are allowed to participate in a BYOD program, the extent of utilize of dual-use devices, whether employees can utilize the company’s IT assuage desk service, etc. THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 54 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ E. Training Depending upon the specific policies each company develops, the content of training and awareness activities related to these issues will differ. However, for these risks to live adequately mitigated, companies should review their current training and awareness programs and update them to cover these topics. F. Risk Management Approach Managing the risks of a BYOD policy can live challenging, as the scope of the above Recommendations Make clear. Employers that determine at risk and opening as two sides of the selfsame coin are more apt to seize competitive opportunities without taking on unknown or unmitigated risk. Some of the opportunities—reducing costs, employee convenience, more direct access to customers—are appealing, but beneath the surface are a number risks that employers should assess before deciding to allow dual-use devices to live used as a portion of criterion commerce processes. The “LITTLER” Risk Management Framework provides companies with a structured process for assessing risk and developing policies and procedures to effectively manage them. This Framework has several steps. 1. Lead The first step in the process is to allot a person or team to own and manage specific key risk areas. As described above, dual-use devices create a number of emerging risks, and employers should live preparing now to allot risk responsibility to an executive with a multi-faceted flavor or to a team that will possess, collectively, a broad understanding of the business, how these devices will live used, and how to effectively mitigate risk going forward. 2. Inspect Once the employer assigns ownership of the risk, the next step is to thoroughly inspect the risk area. Are there gaps in existing internal controls? How outcome the potential financial, reputational, criminal, and strategic risks described in this Littler Report apply to the company? The erudition and data collected in the inspection side will live instrumental in designing and implementing risk mitigation initiatives. 3. instruct Risk management must moreover comprehend a teaching component. Merely writing an efficient policy will not reduce risk unless the birthright employees are taught the policies and procedures they must comply with to manage the risks. 4. Train While the teaching step is the “what” of risk management, training is the “how.” Employers must train employees to know how to react in given situations. Therefore, an efficient risk management program must comprehend real-life, factbased scenarios that enable employees to react effectively if an event occurs. 5. Launch Employers must elect how much risk they are willing to take. The most efficient approach to seizing a lucrative opening is to reduce or mitigate a competing risk to the point that it fits within the employer’s risk appetitive. Employers must launch mitigation programs and initiatives that back the ultimate commerce strategy.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 55 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 6. Examine Risks are enjoy live organisms. They shrink and grow, multiply and divide. Risk management is not a stagnant actively. Employers must continually examine their risk inventory and the relative rankings of those on the inventory as well as new and emerging risk areas. As mobile technology continues its rapid evolution pace, companies must continually reassess the risks posed by new features and functionality (e.g. speech recognition, geolocation, sociable media, collaboration and project management tools, video conferencing capabilities, etc.) and update their approach accordingly. 7. Report Finally, the risk management office must report to stakeholders the key information that will allow the employer to continually help its risk management office and the overall business. In the final analysis, the risks described in this Littler Report cannot live addressed in isolation. Mitigation of these risks requires a cross-functional approach that includes: • heedful review and application of the available Mobile Device Management options available in the devices, platforms, and operating systems to control the devices and the data stored on them. • New or revised policies to address the risks in a passage that is in line with each company’s values, risk tolerance, and corporate culture. • New or revised operating procedures that breathe life into the polices selected by the company. • Education and training of utter affected employees. • Regular re-evaluation of the risks as vendors interlard new features and functionality that move or create new risks.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 56 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ VI. CONCLUSION When companies as traditional and respected as IBM and Kraft deploy BYOD programs, it is limpid the BYOD Movement is not a short-lived trend, and that more companies are likely to adopt dual-use device programs—despite the risks. Over the next one to three years virtually every company will live forced to address these issues as more employees purchase mobile devices with new functionality and always-on connections to the Internet. These employees will increasingly resist carrying a company device in one pocket and a personal device in the other. The ability to perform travail from almost anywhere will moreover continue to minimize the distinction between travail life and personal life for many employees. Technology has advanced to the state that their personal and commerce lives overlap, yet their laws and regulations are years behind. This demands that employers try to adapt and adjust traditional mandates and requirements to minimize risk and maximize compliance while the BYOD Movement accelerates. Whether an organization is prepared to adopt a comprehensive BYOD program or not, every employer will requisite to address the question of how to react to the inevitable and growing utilize of personal devices in performing work. Those employers who elect to adopt a BYOD program to allow and regulate dual-use devices should review the risks and recommendations described in this Report and then develop policies, procedures, and technical controls to address them. Cookie cutter approaches will likely not work. Rather, an employer’s approach will travail best if it is tailored to the company’s specific commerce model, regulatory environment, and corporate culture. Then those organizations electing to not allow dual-use devices will moreover requisite to examine their compliance, commerce and legal risks as it becomes increasingly effortless and commonplace to apply personal devices to commerce tasks. The acceleration of the BYOD Movement may live slowed, but stopping it is comparable to prohibiting dating between coworkers. It can live done, but it is increasingly in affray with the passage the smartphone and tablet generations approach life both in and outside the “workplace.” Unfortunately, setting up a BYOD program is not likely to live a one-time event for organizations. This is a dynamic area, and new features and applications invented for mobile devices are potential challenges for the employer. This constant state of change will require continued diligence and a re-examination of the benefits, risks and responsive choices by employers through their management, corporate counsel, HR professionals and IT departments. Littler commits to continue bringing employers worldwide employment and labor law solutions needed today to live prepared for the workplace of tomorrow. COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 57 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions Endnotes a. D.C. District Court -DL v. District of Columbia, 251 F.R.D. 38, 46 (D.D.C. 2008) (“With regards to the term ‘control,’ it has been well established that the test for control is not defined as mere possession, but as the legal birthright to obtain such documents on demand.”); First Circuit -Haseotes v. Abacab Int’l Computers, Inc., 120 F.R.D. 12, 15 (D. Mass. 1988) (“legal ownership is not the determining factor... Under [Rule 34], a party has ‘control’ over a document if that party has a legal birthright to obtain those documents.”); Third Circuit -Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004) (“In the context of Fed. R. Civ. P. 34(a), so long as the party has the legal birthright or ability to obtain the documents from another source upon demand, that party is deemed to gain control.”); Sixth Circuit -In re Bankers dependence Co., 61 F.3d 465, 469 (6th Cir. 1995) (“[F]ederal courts gain consistently held that documents are deemed to live within the “possession, custody or control” for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal birthright to obtain the documents on demand.”); Seventh Circuit -Chaveriat v. Williams Pipe Line Co., 11 F. 3d 1420, 1427 (7th Cir. 1993) (“[T]he fact that a party could obtain a document if it tried hard enough and maybe if it didn’t try hard at utter does not weigh in that the document is in its possession, custody, or control; in fact it means the opposite.”); Eighth Circuit -Washam v. Evans, 2011 U.S. Dist. LEXIS 70704, * 2 (E.D. Ark. 2011) (“A party may live ordered to produce a document in the possession of a non-party entity if that party has a legal birthright to obtain the document or has control over the entity who is in possession of the document.”); Ninth Circuit In re Citric Acid Litigation, 191 F.3d 1090, 1107 (9th Cir. 1999) (“Control is defined as the legal birthright to obtain documents upon demand... Ordering a party to produce documents that it does not gain the legal birthright to obtain will oftentimes live futile, precisely because the party has no inevitable passage of getting those documents.”); descry moreover In re NCAA Student-Athlete title & similarity Litig., 2012 U.S. Dist Lexis 5087, at * 18 (N.D. Cal. Jan. 17, 2012) (“[t]his Court agrees with Magistrate umpire Paul S. Grewal [Genentech, Inc. v. Trs. of the Univ. of Pa., 2011 U.S. Dist. 128526, *2 (N.D. Cal. 2011)], that the ‘practical ability’ test for ‘control’ [citation omitted] does not square with Ninth Circuit precedent”); Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D. Kan. 2004)(“‘Control comprehends not only possession but moreover the right, authority, or ability to obtain the documents.’ Therefore, Rule 34(a) enables a party seeking discovery to require production of documents beyond the actual possession of the opposing party if such party has retained ‘any birthright or ability to influence the person in whose possession the documents lie.’”). b. Second Circuit -Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2nd Cir. 2007) (“We moreover umpire it fairly obvious that a party moreover requisite not seek such documents from third parties if compulsory process against the third parties is available to the party seeking the documents. However, if a party has access and the practical ability to possess documents not available to the party seeking them, production may live required.”); Fourth Circuit -Morris v. Lowe’s Home Ctrs, 2012 U.S. Dist. LEXIS 44422, *20 (M.D.N.C. Mar. 29, 2012) (“A document is in a party’s control when the party has ‘the right, authority or practical ability to obtain the documents from a non-party to the action.’”); Fifth Circuit -Wiwa v. Royal Dutch Petroleum Co., 392 F. 3d 812, 821 (5th Cir. 2004) (“The phrase ‘to which he has access’ is overbroad; it would require the retrieval of documents from Nigeria --documents not under Oteri’s custody, control, or possession, but to which he could conceivably gain access by virtue of his prior position with Shell. They therefore restrict the document request in the subpoena to documents within Oteri’s custody, control, or possession.”); But descry Exco Operating Co., LP v. Arnold, 2011 U.S. Dist. LEXIS 138974 *20 (W.D. Louis. 2011) (“Rule 34’s definition of ‘possession, custody, or control,’ includes more than actual possession or control of the materials; it moreover contemplates a party’s ‘legal birthright or practical ability to obtain the materials from a nonparty to the action.’”);Eleventh Circuit -Searock v. Stripling, 736 F.2d 650, (11th Cir. 1984) (“Control is defined not only as possession, but as the legal birthright to obtain the documents requested upon demand....We outcome not, however, completely rest their holding on this factor of “control”. They find instead that the primary dispositive issue is whether [the defendant] made a edifying faith pains to obtain the documents over which he may gain indicated he had “control” in whatever sense, and whether after making such a edifying faith pains he was unable to obtain and thus produce them.”). c. First Circuit -Velez v. Marriott PR Mgmt., Inc., 590 F. Supp. 2d 235, 258 (D.P.R. 2008) (the scope of the duty to preserve includes a duty to notify the opposing party of evidence in the hands of third parties); Second Circuit -In re WRT Energy Secs. Litig., 246 F.R.D. 185, 195 (S.D.N.Y. 2007) (“If a party cannot fulfill [the] duty to preserve because he does not own or control the evidence, he soundless has an duty to give the opposing party notice of access to the evidence or of the viable destruction of the evidence if the party anticipates litigation involving that evidence”). descry moreover Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co., 769 F. Supp. 2d 269, 291 (S.D.N.Y. 2011) (the duty to preserve may live extinguished by provision to the opposing party of an “adequate and meaningful opening to inspect” the evidence); Sixth Circuit -Jain v. Memphis Shelby County Airport Auth., 2010 U.S. Dist. LEXIS 16815 (W.D. Tenn. Feb. 25, 2010) (the scope of the duty to preserve includes a duty to notify the opposing party of evidence in the hands of third parties); Tenth Circuit -Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., 139 F.3d 912 (10th Cir. 1998) (a party with possession of potentially material evidence has a duty to preserve it; even if the party relinquishes ownership or custody, it must contact the new custodian to preserve the evidence).THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 58 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ APPENDIX A: CHECKLISTS FOR DEVELOPING A BYOD PROGRAM As discussed in the Report, a BYOD program may live the best passage for a company to gain control of employees’ utilize of personal devices and restrict the risks. However, each employer must Make its own conclusion based upon the sensitivity of the information its employees handle, whether the employer is in a highly regulated industry, the risk tolerance of the company, and its corporate culture. If a BYOD program is appropriate, then employers should respect the issues discussed in the Report. The checklist below contains a high-level summary of the recommendations set forth in the complete Report. diagram A BYOD PROGRAM • elect whether utter employees should live permitted to participate in a BYOD program or whether inevitable groups should live excluded, such as senior executives, human resources staff, members of the legal department, sales staff, staff in research and evolution roles, contractors and contingent workers, and nonexempt staff, etc. • If the company has unionized employees, determine whether the policy should extend to those employees, and if so, consult applicable collective bargaining agreements and labor counsel to develop a plan. • If the company has employees outside the United States, plans should live made to address international issues such as privacy and data protection, reimbursement and tax obligations, and limits on working hours that may apply. IDENTIFY TECHNICAL CONTROLS FOR DUAL-USE DEVICES • elect a Mobile Device Management (MDM) platform to manage employees’ dual-use devices and identify the different types of mobile devices (and the specific versions of their operating systems) the MDM tool can back and manage. • restrict the BYOD program to the specific devices and versions of operating systems the company can back with the MDM platform. • elect whether MDM software that creates a “sandbox” for company data is necessary to provide additional protections. • travail with IT, Legal, HR, Security, and other material departments to configure the MDM tool to create usurp security controls for dual-use devices, including, for example: – Encrypting utter data stored on the device – Requiring stalwart passwords – Forcing the wipe of devices after 10 unsuccessful password attempts – Locking the device when idle – Prohibiting jailbroken devices – Prohibiting apps that hold malware – Locating the device if it is lost or stolen – Forcing the encryption of device backupsCOPYRIGHT ©2012 LITTLER MENDELSON, P.C. 59 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions • Determine what data and services employees will live able to access with their dual-use devices. For example, will employees live limited to accessing travail email, contacts, and calendars? Or will they moreover live able to establish a secure connection to the network to access additional applications or information? If broader access is desired, then evaluate whether virtualization technologies, enjoy Citrix, will provide the desired functionality in a secure manner. REVISE OR CREATE NEW POLICIES Carefully review existing policies to identify changes that requisite to live made in light of the selected MDM software, access controls, device options, etc. At a minimum, companies should review the following policy areas. Harassment, Discrimination, and Equal Employment Opportunities • Clarify that company policies regarding harassment, discrimination, and retaliation apply to the utilize of dual-use devices and train utter employees concerning proper and improper use. • Train managers about how to respond to accommodation requests involving dual-use devices. Workplace Safety • Create an unequivocal policy statement that the company does not tolerate texting or talking on a hand-held device while operating a company vehicle or while operating a personal vehicle on company business. • Educate employees about how to safely wield the requisite to text or talk while driving. Recording travail Time • Remind nonexempt staff to record utter travail time and revise policies if necessary to Make this clear. • Educate managers to live heedful when sending e-mails and texts and making phone calls to nonexempt staff during off-hours. • Evaluate options for employees to create unique ringtones or alerts to distinguish travail and personal emails and calls to minimize the likelihood of claims for overtime or that employees were required to travail off the clock. Acceptable utilize of Technology • Clarify that company policies on acceptable utilize of technology apply to dual-use devices while on company time or on company premises. • Educate employees about the dependence they should hoist to ensure that personal activities undertaken with dual-use devices must not obtrude upon the workplace in a manner that violates other company policies, such as harassment, discrimination, etc. Compliance and Ethics • Clarify that company compliance and ethics obligations apply when using dual-use devices for work-related activities. Privacy • Clarify that employees using dual-use devices must provide access to their device upon exact for legitimate commerce purposes, such as an investigation or implementation of a litigation hold.THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions 60 LITTLER MENDELSON, P.C. • EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ • Inform employees that the company may requisite to copy the entire device (including personal content) for litigation or investigations and then review and produce material materials to government agencies or third parties in litigation. • Obtain employees’ written consent to: – Review dual-use devices, including utter data stored on and transmitted with them – Remotely wipe the device, including utter travail and personal information stored on the device – Install security software to manage the device and secure the data – Inspect the device and copy utter data from the device (including personal data) to meet litigation hold and record retention obligations Security • Clarify that company security rules apply to dual-use devices and remind employees to follow edifying security practices when using their dual-use devices. • Require employees to immediately report lost or stolen devices to ensure that “wipe” commands can live sent before devices lose battery power. • Require employees to comply with configuration instructions and not to alter, bypass, or deactivate the operating system or other security features of the device without approval from senior management. • Require employees to physically secure dual-use devices against theft, loss, or unauthorized use. • Prohibit the utilize of dual-use devices by friends and family. • Create policies to restrict employees from synchronizing or backing up the dual-use device in a passage that would result in storing work-related data, such as with cloud-based services or applications that gain not been approved for such utilize by the company’s senior management. Records Management and Litigation Holds • Clarify that record retention, destruction, and litigation hold policies extend to work-related data stored on dual-use devices, as well as any third-party storage used by employees, such as cloud providers, online backup services, or home PCs that may gain been used to synchronize or backup a dual-use device (in violation of any policy prohibiting such storage or synchronization of data). Confidentiality and Trade secret Protection • Clarify that company policies regarding protection of trade secrets, private data, and confidential information apply to dual-use devices and educate employees about how to protect such information. REQUIRE EMPLOYEE AGREEMENTS • Create or modify existing employee agreements that employees must mark before being allowed to utilize a dual-use device to allow the company to assert control over its data after an employee has left the company. • respect whether claims relating to dual-use devices should live topic to an arbitration obligation.COPYRIGHT ©2012 LITTLER MENDELSON, P.C. 61 THE “BRING YOUR OWN DEVICE” TO travail MOVEMENT: Engineering Practical Employment and Labor Law Compliance Solutions DEVELOP NEW INTERNAL PROCESSES AND PROCEDURES • Develop a group within the Information Technology Department with the skills and tools to effectively manage dual-use devices, including: – Tracking utter dual-use devices used by employees – Secure configuration of dual-use devices – utilize of the Mobile Device Management platform – Processes to remotely wipe data from dual-use devices – Tools and processes to forensically copy utter data from the variety of dual-use devices used by employees – Monitoring and responding to new features and operating system updates for dual-use devices to maintain company controls • Revise litigation hold policies and procedures to ensure dual-use devices are included within the scope of the company’s litigation holds. • Educate managers, IT staff, and legal counsel about the risks of accessing employee data stored in personal e-mail accounts and other online services and develop a policy for addressing such access. • Develop new exit interview processes to ensure company data is preserved as necessary and then securely deleted from dual-use devices and any other storage areas used by employees, such as cloud-based storage services, home PCs that may gain been used to synchronize or backup dual-use devices, etc. • Review insurance coverages to determine whether existing insurance policies adequately address risks or whether additional coverages are available. • Revise contingent worker contracts to address the utilize of dual-use devices. • Evaluate employee reimbursement policies for the utilize of dual-use devices to address applicable laws. • Develop a change management process to ensure company policies and procedures remain current and adequately mitigate the risks of dual-use devices as new applications and features are made available to employees. EDUCATE EMPLOYEES • Develop training and awareness programs for employees, managers, IT staff, and others to ensure they understand their role in usurp utilize of dual-use devices and mitigation of the risks.* In Detroit, Littler Mendelson, PLC, in Lexington, Littler Mendelson, P.S.C., both are wholly-owned subsidiaries of Littler Mendelson, P.C.Littler Mendelson OfficesAlbuquerque, NM 505.244.3115 Anchorage, AK 907.561.1214 Atlanta, GA 404.233.0330 Birmingham, AL 205.421.4700Boston, MA 617.378.6000 Charlotte, NC 704.972.7000Chicago, IL 312.372.5520Cleveland, OH 216.696.7600Columbia, SC 803.231.2500Columbus, OH 614.463.4201Dallas, TX 214.880.8100Denver, CO 303.629.6200Detroit, MI* 313.446.6400Fresno, CA 559.244.7500Gulf Coast 251.432.2477Houston, TX 713.951.9400Indianapolis, IN 317.287.3600Kansas City, MO 816.448.3558Las Vegas, NV 702.862.8800Lexington, KY* 859.317.7970 Long Island, NY 631.293.4525Los Angeles, CADowntown213.443.4300Los Angeles, CACentury City310.553.0308Memphis, TN 901.795.6695 Miami, FL 305.400.7500Milwaukee, WI 414.291.5536Minneapolis, MN 612.630.1000Morgantown, WV 304.291.3004 Nashville, TN 615.383.3033New Haven, CT 203.974.8700New York, NY 212.583.9600Newark, NJ 973.848.4700 Northern Virginia 703.442.8425Northwest Arkansas 479.582.6100Orange County, CA 949.705.3000Orlando, FL 407.393.2900Overland Park, KS 913.814.3888Philadelphia, PA 267.402.3000Phoenix, AZ602.474.3600Pittsburgh, PA 412.201.7600Portland, OR 503.221.0309Providence, RI 401.824.2500Reno, NV 775.348.4888Rochester, NY 585.203.3400 Sacramento, CA 916.830.7200San Diego, CA 619.232.0441San Francisco, CA 415.433.1940San Jose, CA 408.998.4150Santa Maria, CA 805.934.5770Seattle, WA 206.623.3300 St. Louis, MO 314.659.2000Walnut Creek, CA 925.932.2468 Washington, D.C. 202.842.3400INTERNATIONALCaracas, Venezuela58.212.610.5450Mexico City, Mexico52.55.4738.4258 Monterrey, Mexico52.81.8865.4340 littler.com • Littler Mendelson, P.C.
Good morning. The second major global cyberattack in two months swept across the globe on Tuesday in what the Journal described as a "confidence-shaking" episode. Dubbed Petya, it bore similarities to the WannaCry ransomware storm in May, yet in some ways was more insidious, exposing fresh weaknesses in systems from the Ukraine to Russia, Europe and the U.S. Researchers were soundless investigating the source of the storm on late Tuesday, as victims confronted messages that said digital files were locked and being held for ransom. One theory suggested that the storm was meant to target an entire class of companies in an economic assault on Ukraine.
"But companies investigating the outbreak yell that a software update from Kiev-based [tax software maker] Intellekt Servis was a principal—and inadvertent—source. The company described itself as a victim of Tuesday’s attack, motto the virus had disrupted its own operations. It said that when it released its latest software on June 22 it didn’t hold any virus," the Journal reports. "Some experts disagreed with that assessment. The software was pushed out to customers five days ago and then quietly spread within corporate networks before being triggered on Tuesday, said Craig Williams, security outreach manager with Cisco Systems Inc. ... Kaspersky Lab ZAO ... moreover cited Intellekt Servis as a main source of the outbreak but saw no evidence of triggering mechanism."
The motivation behind the storm may gain been political and economic, and tied to the turmoil in Ukraine, according to one theory. "I umpire not only is it out there trying to Make a profit, but it’s moreover making a very limpid political statement: it’s intentionally trying to damage businesses that interact with the Ukrainian tax system, “ Mr. Williams said. Nonetheless, the corporate sector in Russia, Ukraine's distinguished antagonist, was not spared. Russian oil giant PAO Rosneft, was a victim. In the U.S., Merck & Co. was hit, too. Regardless of the motivation behind the attack, it spread far beyond the epicenter, wherever that may be. For corporations around the world, the message remains clear. Optimize your defenses against seemingly inevitable and endless cyberattack by making sure, at the very least, that your systems are up to date. Gartner predicts that through 2020, 99% of vulnerabilities exploited "will continue to live the ones known by security and IT professionals for at least one year."
Albertsons gears up for online grocery battle. Albertsons Cos. plans to overhaul the e-commerce systems of its 2,300 supermarkets and stores in fiscal 2018 as digital disruption comes to the grocery business, most recently in the form of Amazon.com Inc.’s $13.7 billion tender for entire Foods Market Inc. And the grocery company is doing it under the leadership of battle-hardened executives from retail, banking and entertainment, CIO Journal reports. “We are bringing in leaders with flavor in industries that gain undergone histrionic transformation due to digital — people who gain been through battles and learned from it,” said Narayan Iyengar, senior vice president of digital marketing and e-commerce. Mr. Iyengar joined in January from Walt Disney Co.
American Airlines pitiful website, mobile app to IBM Cloud. American Airlines Group Inc. is pitiful its website, customer-facing mobile application and network of check-in kiosks to International commerce Machines Corp.’s public cloud, portion of the airline’s first large-scale utilize of the technology. The new architecture will allow American to quickly add new features to apps and scale up and down based on demand, Daniel Henry, American’s vice president of customer technology and enterprise architecture, tells CIO Journal.
SECURITY AND PRIVACY
More on Tuesday's cyberattack. A raft of global businesses and Ukrainian state institutions reported widespread cyberattacks on Tuesday from a virus similar to the recent WannaCry ransomware incident. The Wall Street Journal has the replete story.
Among the victims. Pharmaceutical giant Merck & Co., adversing conglomerate WPP, law solid DLA Piper, Russian oil company PAO Rosneft and shipping giant A.P. Moeller-Maersk A/S, which reported Tuesday that the virus affected more than a dozen of its port-operating units. Ukrainian authorities reported that the virus hit a telecom company, the state postal service, energy firms, several banking institutions and Kiev’s airport and metro system were utter affected. Chernobyl's radiation monitoring system moreover was taken offline, the Guardian reports. Anton Gerashchenko, an adviser to Ukraine’s interior minister, said the cyberattacks could live connected to a national holiday and blamed Russia.
Containing the fallout. Maersk on Wednesday said it has contained the issue and is working on a technical recovery diagram with its IT-partners and global cybersecurity agencies.
WannaCry 2? Although security experts said that Petya may not jump from infected company to infected company as quickly as WannaCry, the new virus uses new techniques that allow it to spread more quickly within corporations, the WSJ reports. Bloomberg talks with Symantec Corp. analysts who link the Petya virus to an exploit called EternalBlue which "works on vulnerabilities in Microsoft Corp.’s Windows operating system."
A problem of patching? From Wired: "Microsoft had patched the EternalBlue vulnerability in March, prior to WannaCry's spread in May, which protected some systems from the infection. Based on the extent of damage Petya has caused so far, though, it appears that many companies gain build off patching."
Cloud competitors Box and Microsoft slit deal. The two companies yell they will now travail to better integrate their products and sell the combined services. In addition, Box Inc. will tender its products on Microsoft Corp.’s Azure cloud-computing service, the Journal's Jay Greene reports. And Box moreover intends to utilize Microsoft’s artificial-intelligence technology, which could assuage customers with such tasks as video search and translation services, Box co-founder and CEO Aaron Levie said.
Looking for a passage to hoist productivity? Hire nerds. Companies with a higher harmony of scientists and engineers are more productive than their peers, even when those workers aren’t directly involved in the research-and-development tasks that drive the most obvious forms of innovation, a new paper from the National Bureau of Economic Research suggests. The WSJ's Lauren Weber makes the case.
MORE TECHNOLOGY NEWS
Apple readies 10th anniversary iPhone. What could travel wrong? Apple Inc. plans to celebrate 10 years of the iPhone with three phones instead of two and new features enjoy wireless charging and facial-recognition tech. While most product expansions gain further off without grief under Apple Chief Executive Tim Cook, challenges with some upcoming iPhone hardware features gain stoked concerns about potential for delays, the Journal's Tripp Mickle reports. Several analysts yell they expect it to live several weeks late because of a new kind of fingerprint-verification technology. Apple moreover is running into problems with a lamination process during the device’s assembly, multiple analysts gain reported.
AI expert Andrew Ng joins self-driving startup's board. Mr. Ng, who most recently led Baidu Inc.'s AI efforts, will relate the board at Drive.ai, the startup behind a software kit designed to revolve traditional vehicles into self-driving ones. Drive.ai on Tuesday moreover announced it raised $50 million Reuters reports.
Facebook hits 2 billion milestone. The sociable network has officially passed two billion in monthly users, CEO note Zuckerberg said Tuesday.
Square may soon loan money. The technology company best known for processing payments for diminutive merchants across the U.S., is now angling to lend to consumers, too, the WSJ's Peter Rudegeair reports. The consumer installment-lending program is first being offered through roughly 225,000 commerce clients that moreover utilize Square's small, white credit-card readers. Eligible consumers who receive an invoice for a service from one of those merchants will gain the option to finance it over a period of three, six or 12 months.
American Airlines to test 3-D bag screening equipment. American Airlines Group Inc. is testing new machines from Analogic Corp. that can measure the density of a bag’s contents and map them in three dimensions, the Journal's Susan Carey reports. The tests, which began this month, further as the U.S. Department of Homeland Security considers whether to expand a ban on laptops and other devices in aircraft cabins over terror concerns.
Toshiba sues Western Digital. Toshiba Corp. filed suit against Western Digital Corp., its chip commerce partner, in a bid to retain the sale of its flash remembrance commerce afloat, the Journal's Takashi Mochizuki reports. Western Digital has said Toshiba needs its consent before it can sell its stake the chip business.
Australia probes Uber. Australian regulators are looking into whether Uber Technologies Inc. is skirting employment laws in the country, the fiscal Times reports.
Silicon Valley forges ahead on boosting minimum wage. Proponents of a $15 minimum wage have create fruitful territory in Silicon Valley, where the region’s booming technology industry is credited for helping drive soaring housing prices and a sizable income gap. California is on track for a $15 minimum wage by 2022, but the Journal's Alejandro Lazo reports that some Silicon Valley cities are opting to hit that target faster, prodded by a push aimed at organizing low-wage workers in the region.
Wait, what? bethink when Samsung Electronics Co.'s Galaxy Note 7 was recalled ultimate year after reports of some devices catching fire? Samsung is releasing a refurbished version, called the Galaxy Note 7 FE. The FE stands for “Fandom Edition,” the WSJ learns.
EVERYTHING ELSE YOU requisite TO KNOW
United Parcel Service will freeze pension plans for about 70,000 nonunion employees, seeking to hold the burden of a retirement fund with a nearly $10 billion deficit. (WSJ)
The International Monetary Fund lowered its forecast for the U.S. economy on Tuesday, motto it could no longer assume the Trump administration will live able to deliver pledged tax cuts and higher infrastructure spending. (WSJ)
Booming exact for passive investments is making exchange-traded funds a crucial driver of partake prices, helping to extend the eight-year-old U.S. stock rally even as valuations become richer and other mammoth buyers pare back. (WSJ)
Warren Buffett’s Berkshire Hathaway may become the biggest shareholder in Bank of America, if the country’s second-largest bank gets the expected stress-test result Wednesday. (WSJ)
The Morning Download is edited by Tom Loftus and cues up the most primary news in commerce technology every weekday morning. transmit us your tips, compliments and complaints. You can derive The Morning Download emailed to you each weekday morning by clicking http://wsj.com/TheMorningDownload.
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