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As artificial intelligence capabilities continue to increase, employers will contend with many issues surrounding the use of AI in the workplace. To prepare employers to address some of these issues, we have created a series of posts examining employers’ use of AI.

AI is relatively new, but it is certainly here to stay. For employers considering implementing AI processes, there are some general considerations they should keep in mind as they delve into the ever-growing world of AI in the workplace.…

Continue Reading The impacts of AI in the workplace

*Special thanks to Porter Wright summer law clerk, Grace Brown, for her assistance with this post.

It’s the summer of 2020, and someone from your company posts to her public Facebook page saying, “If Black people truly wanted equality, then they wouldn’t be isolating themselves into a separate group with Black Lives Matter. All lives matter!”

Your social media marketing team discovers the employee’s post after it was shared by someone who accuses that employee, and your company, of being racist.

What do you do?…
Continue Reading How employers can respond to social justice and free speech issues on social media

With increasing frequency, employers are raising the question about what can (or can’t) be done with employees who speak about polarizing issues, whether at work or in a way that affects the work environment. This question is arising often because of our current social and political climate. The legal and practical implications are complex. …
Continue Reading Employees and free speech

The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
…
Continue Reading Third Circuit decides employer’s tweet was comedic, not coercive

In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing that the employer’s policy which prohibited the use of cameras and video recording devices in the plant without prior authorization, was facially overbroad and did not provide any exceptions for protected concerted activity. As such, according to Member Pearce, the policy tends to impermissibly chill employee expression and therefore was unlawful regardless of the employer’s intent in adopting and implementing the policy and regardless of whether employees actually interpreted the policy as restricting their Section 7 rights.…

Continue Reading NLRB panel majority upholds employer right to justify “no recording” policy; denies general counsel summary judgment motion

A recently published decision of an Ohio Court of Appeals reminds us that, particularly in this electronic age, employers need to be very careful in the handling of confidential medical information. The decision is also a reminder that sometimes the outcome of a case can depend on the precedent in a particular appellate district.

In Templeton v. Fred. W. Albrecht Grocery Co. the 9th District Court of Appeals (for Summit County, Ohio) the employee responsible for managing workers’ compensation claims for the employer inadvertently sent a psychological report regarding the plaintiff to other employees rather than to the plaintiff’s attorney as she intended. The plaintiff brought suit alleging unauthorized disclosure, negligence and invasion of privacy. In response, the employer filed a motion to dismiss the claims as a matter of law.

The trial court dismissed the unauthorized disclosure and negligence claims at the outset and then, ultimately granted summary judgment as to the invasion of privacy claim. The plaintiff then appealed.…

Continue Reading Ohio Appellate Court dismisses privacy breach lawsuit against employer

Two recent decisions – one from the federal district court in New Jersey and one from a federal Administrative Law Judge – potentially will have significant impact on the Federal Trade Commission’s (“FTC”) enforcement of business’s data security obligations.

FTC v. Wyndam Worldwide

In FTC v. Wyndham Worldwide Corporation, the New Jersey federal district…

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:

– the employer issued the cell phones to the employees;
– the employees used the cell phones for any work-related purpose; or
– the employer otherwise had any legal right to obtain employee text messages on demand.
Continue Reading Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees’ Personal Cell Phones

When we think about the issues that employers have been struggling with relating to employee use of personal mobile devices for work, thoughts of data security, trade secret protection, record retention, and even FLSA compliance immediately come to mind – or at least my mind. But, I bet you wouldn’t anticipate what allegedly happened in Lazette v. Kulmatycki, a case decided by the federal court in the Northern District of Ohio on June 5, 2013.
Continue Reading Ohio Federal Court Permits Case Alleging Employer’s Accessing Of Former Employee’s Personal Emails To Proceed