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Tech@Work: How Employers Can Thrive in the Digital Workplace
 Litigation partner at Cades Schutte LLP
 Practices commercial litigation, media law
 Founder and chair of firm’s Digital Media and
Internet Law practice group
 Twitter Handle: @LegalTXTS
 Hashtag for this training seminar - #hectech
ELIJAHYIP
SOCIAL MEDIA &
EMPLOYMENT
Image by David Saunders [CC-BY-SA-2.0] via Flickr
TOPICS COVERED
Social media policies
Social media in hiring
Discipline and investigation related to social
media conduct of employees
#hectech
@LegalTXTS
SM POLICIES – NLRB Memos
Issued memos on
August 18, 2011: http://1.usa.gov/RXYEOr
January 24, 2012: http://1.usa.gov/RXYxm6
May 30, 2012: http://1.usa.gov/RXYlTW
Memos do not have force of law, but do
create risk for employers wanting to adopt
certain policies. Must weigh various risks.
#hectech
@LegalTXTS
SM POLICIES – NLRB Memos
Employers generally can’t have social media
policy that prohibits employees from:
Harming employer’s reputation or criticizing
employer on social media
Using company information (including
trademarks, logos) on personal social media
profiles
Discussing controversial topics on social media
#hectech
@LegalTXTS
SM POLICIES – NLRB Memos
Speaking to media about terms and conditions
of employment
Airing out work concerns on social media
instead of using internal procedures
On Sept. 7, 2012, NLRB published first
decision re social media in which it followed
the logic of the Guidance Memos in striking
down Costco’s social media policy
#hectech
@LegalTXTS
SM POLICIES – Guiding Principles
Deter high-risk social media behavior (i.e.,
loss prevention for employer)
Try to comply with employment and labor
laws
Create parameters for appropriate and
beneficial social media use
#hectech
@LegalTXTS
SM POLICIES – The Essentials
Define what “social media” is
State to whom policy applies; might need
more than one policy
Limit when and how employees may use
social media
Remind employees of dangers and
ramifications of using social media
#hectech
@LegalTXTS
SM POLICIES – The Essentials
Set guidelines for when and how employees
may (or may not) use social media on behalf of
employer
Set guidelines on interactions with, or
statements about, co-workers
Set guidelines on interactions with, or
statements about, outsiders
Describe consequences of non-compliance
#hectech
@LegalTXTS
SM POLICIES – Suggested Points
Limit use of company equipment for
purposes of social media activity
Remind employees to use good judgment
Permanency of online content
No such thing as anonymity
Blurring of work and personal lives
#hectech
@LegalTXTS
SM POLICIES – Suggested Points
Encourage courtesy and civility
Prohibit discriminatory remarks, harassment,
threats of violence, unlawful conduct
Remind employees to disclose affiliation with
employer when posting content that
promotes company or its products/services
#hectech
@LegalTXTS
SM POLICIES – Suggested Points
Protect intellectual property and trade secrets
Clarify ownership and control over social media
assets
Link to existing company policies
Link to applicable professional codes of conduct
Set guidelines on media relations
#hectech
@LegalTXTS
SM IN HIRING
37% of companies are researching job candidates
using social networking sites (Source: 2012 CareerBuilder
survey)
Managers may be researching applicants on social
media already even if HR doesn’t know it
Need to implement policies to minimize risk
Gaskell v. University of Kentucky (E.D. Ky. 2010)
#hectech
@LegalTXTS
SM IN HIRING – Password Requests
36 states are considering employer social
media password request laws
Bills introduced at HI legislature this year did
not pass
Possible federal legislation
#hectech
@LegalTXTS
SM IN HIRING – Good Practices
1. Be consistent
2. Limit searches to publicly accessible sites
3. Update hiring procedures/train managers
4. Consider using HR specialist as a filter
5. If using a third-party vendor, comply with
FCRA requirements
#hectech
@LegalTXTS
SM DISCIPLINE – General Rules
Employees can be disciplined or terminated for
their social media conduct, but…
Beware of violating NLRA. Ask: Did employee in
engage in “concerted, protected activity”?
 Did the employee discuss the terms and conditions of
employment?
 Did the employee discuss the post or the subject matter
with other employees?
 Was the employee trying to bring a concern to
management’s attention?
#hectech
@LegalTXTS
SM DISCIPLINE – Example Cases
Hispanics United of Buffalo, Inc.: Employees posting
Facebook messages about co-worker’s criticisms of
their work habits
Pier Sixty, LLC: Calling manager nasty names but
ending post with “VoteYES for the UNION.”
DesignTechnology Group, LLC: Facebook messages
complaining about manager’s denial of request to
close store earlier
#hectech
@LegalTXTS
SM INVESTIGATIONS
EEOC: harassment via social media raises
“same types of issues”
Failure to investigate complaints about
harassment and take corrective action could
expose employers to liability
Espinoza v. County of Orange (Cal. Ct.App. Feb.
9, 2012)
#hectech
@LegalTXTS
Michael Miranda
• Maryknoll 1990, UCF, Gonzaga, UH
• Miranda Rights
• Geek Passion
• Coder at Heart
• Cyber Security Spartan
• HawaiianTelcom
HawaiianTelcom does not specifically endorse
any of the companies mentioned in this
presentation.
SOCIAL NETWORKING SITES
Michael Miranda, Sr. Manager, HawaiianTelcom
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
HR Considerations
• “Eyeballs” are on SNS, it is the “norm”
• Branding must extend and be consistent on
social media sites
• Opportunities to advertise (i.e. LinkedIn)
• Open and public interactive communications
Risks and Mitigation
Risks
• Informal communications
may become “business”
communications
• Critical reviews can hurt your
business
• Stolen user account
credentials could be used to
hurt your image and business
Mitigation
• Be formal with all
communications
• Do not conduct transactions
on SNS
• Monitor and respond to
negative reviews quickly
• Strategize to protect your
user account credentials
Wired (12/2012)
• “hackers destroyed my entire digital life in the span of an hour”
• Victim Account Info Needed:
– Master EmailAddress (for recoveries)
– BillingAddress
– Last 4 Digits of a Credit Card
– NoAdvanced Security Beyond Password
• Social Engineered and Exploited Procedures to Gain Access to his
accounts with: Apple, Gmail, Amazon andTwitter
Damage
• Deleted 8 years worth of email on Gmail
• Took overTwitter account to broadcast
offensive messages
• Erased all data on iPhone, iPad and Macbook
– Family photos
– Work documents and email
User Account Strategy
• Use a separate business email address for
SNS and other business activity, including
background checks
• Use an alias email address instead of a real
email address (even for recovery email
addresses)
airjordan808@yahoo.com
airjordan808@hotmail.com
airjordan808@gmail.com
airjordan808@me.com
airjordan808@live.com
miranda@university.edu
MY BUSINESS
mike@mybusiness.comadm@mybusiness.com
(email alias for all
transactions)
xyz@mybusiness.com
(keep private!)
xyz@gmail.com
(keep private!)
.com
• Commit to a an Online Presence on
The Popular Platforms
• Treat as a Primary Communication
Channel
• Monitor/RespondTimely and
Professionally
SNS for Business…Securely
• Only for informational business communications. DO
NOT:
– Contract using SNS messaging
– Transmit or receive sensitive information
• Monitor and respond consistently
• Segregate and protect business SNS accounts
• Use two-factor authentication when available
BYOD
Michael Miranda, Sr. Manager, HawaiianTelcom
Why BYOD?
1. Ease of working outside the office
2. Staff have relevant equipment
3. Attract and retain top talent (any age)
4. Reduce device management costs
5. Attract and retain younger workers
• Source:
http://www.citrix.com/lang/English/lp/lp_2314315.a
sp
Expected Benefits of BYOD?
1. Improved Employee Satisfaction
2. Increased worker productivity
3. Greater mobility for workers
4. More flexible work environments
for employees
5. Reduced IT costs
• Source:
http://www.citrix.com/lang/English/lp/lp_2314
315.asp
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
49
Tech@Work: How Employers Can Thrive in the Digital Workplace
Tech@Work: How Employers Can Thrive in the Digital Workplace
Large
SMBs
SMBs Represent 94% of All Hawaii Businesses
52
80% have 20
Employees or Less
HawaiianTelcom KellyGreenTemplate 53
54
HawaiianTelcom KellyGreenTemplate 55
56
=
90%
ActedWithin
24 Hours
Mobile Users
94%
Searched for
Local Info
70%
Called a
BusinessAfter
Searching
66%
Visited in
Person
45%
Use for In-Store
Research
722M
Smartphones
Shipped in
2012
Tech@Work: How Employers Can Thrive in the Digital Workplace
BYOD Risks
• Costs – Cheaper for employees or employers?
• Physical Security
– Weak Passcodes
– Lost or Stolen
• Intellectual property theft after job
termination
Tech@Work: How Employers Can Thrive in the Digital Workplace
Mobile Devices Attacked
“Like its 1999”
• Phishing Scams, Malicious Web Sites/Advertisements,
Malicious Apps
• Zbot.ANQ
– Reportedly installs as a trojan on aWindows computer
– Social engineers user to install software on mobile phone
and to provide phone number to hacker
– Hijacks SMS messages from banks to steal money
0.00%
10.00%
20.00%
30.00%
40.00%
50.00%
60.00%
70.00%
80.00%
Market Share
Malware
2011
Apple iOS
• Data is not public
• Isolated reports of malware
• 775,000 Apps!
Top 5 Mobile Content
Associated with Malware
1. Pornography
2. Known Spam Sites
3. Computer/Internet
4. Web Advertisements
5. Entertainment
Tech@Work: How Employers Can Thrive in the Digital Workplace
LEGAL
RISKS
LEGAL RISKS OF BYOD
Employment laws
Fair Labor Standards (FLSA)
TitleVII (harassment and hostile work environment)
Health Insurance Portability and Accountability
Act (HIPAA)
Gramm-Leach-Bliley Act (GLBA)
Sarbanes-Oxley Act (SOX)
#hectech
@LegalTXTS
LEGAL RISKS OF BYOD
Americans with Disabilities Act (ADA)
Section 5 of the Federal Trade Commission Act
Data disposal laws (HRS § 487R-2)
Security breach laws (HRS § 487N-2)
Hawaii UniformTrade Secrets Act (HUTSA)
Privacy laws
E-discovery laws
#hectech
@LegalTXTS
Tech@Work: How Employers Can Thrive in the Digital Workplace
FLSA – Overtime Requirements
Non-exempt employees must receive overtime pay
(at least 1.5x regular pay rate) for hours worked
over 40 in a workweek.
Employee doesn’t need to be asked to work beyond
a 40-hour workweek to be entitled to overtime pay.
He/she just needs to perform overtime work for
employer’s benefit
Employees could rack up overtime by using personal
devices for work w/o employee’s consent if no clear
BYOD policy in place
#hectech
@LegalTXTS
FLSA – Allen v. City of Chicago
 Chicago police officer sued employer under FLSA for
working “off the clock” using department-issued PDAs or
other electronic communication devices without receiving
overtime pay.
 Officer alleged that PDAs required them to be on call 24/7
 In March 2011, court denied motion to dismiss
 In January 2013, court granted conditional certification of a
collective action for the case; 200 officers allowed to join
action
#hectech
@LegalTXTS
FLSA – Tips
Be careful of relying on de minimis exception
Track hours worked remotely
Institute policy requiring prior written
authorization to work remotely via mobile device.
Make sure to communicate policy.
#hectech
@LegalTXTS
HIPAA
111010101
010010010
001110101
11101010
01001001
00111010
10010100
1110
1001
0011
WHERE DOES
YOUR
LIVE
?
HIPAA – Requirements
The issue is patient health information ending up
on mobile devices
HIPAA mandates the “implementation of security
measures sufficient to reduce risks and
vulnerabilities to a reasonable and appropriate
level.” 45 C.F.R. § 164.308(a)(1)
HIPAA also requires “physical safeguards for all
workstations that access ePHI, to restrict access to
authorized users.” 45 C.F.R. § 164.310(c)
#hectech
@LegalTXTS
HIPAA – Omnibus Rule
HIPAA Omnibus Rule took effect on March 23,
2013; compliance due date is September 23, 2013
HIPAA compliance used to be limited to “covered
entities” and their “business associates”
Under Omnibus Rule, all providers of services to
health care providers, health insurers, HMOs and
employee health benefit plans must comply if they
create, receive, or maintain protected health
information on behalf of a covered entity
#hectech
@LegalTXTS
HIPAA – Lost or Stolen Devices
40% of large HIPAA rule violations involved
lost or stolen devices (per 2012 HHS study)
HHS:“[H]ad these devices been encrypted,
their data would have been secured.”
Consider preventing local storage of patient
data on mobile devices
#hectech
@LegalTXTS
Gramm-
Leach-Bliley
Act
GLBA – “Financial Institutions”
GLBA applies to “financial institutions.”
Scope of “financial institutions” can be broad.
mortgage brokers
nonbank lenders
real estate appraisers
educational institutions
#hectech
@LegalTXTS
GLBA – Safeguards Rule
Each covered institution must develop, implement,
and maintain a “comprehensive information
security program”
Program must include “administrative, technical and
physical safeguards”
#hectech
@LegalTXTS
GLBA – Safeguards Rule
Program objectives are to:
Insure the security and confidentiality of customer
information
Protect against any anticipated threats or hazards
to the security or integrity of such information; and
Protect against unauthorized access to or use of
such information that could result in substantial
harm or inconvenience to any customer.
#hectech
@LegalTXTS
GLBA – Information Covered
Applies to all “customer information” in
possession of financial institution
Information does not have to pertain to
customer of financial institution
Can be information of customer of other
financial institutions that provided the
information
#hectech
@LegalTXTS
GLBA – “Customer Information”
“Customer Information” is any information:
a consumer provides to obtain a financial product
or service from the institution
about a consumer resulting from any transaction
with the institution involving a financial product or
service; or
otherwise obtained about a consumer in connection
with providing a financial product or service to that
consumer
#hectech
@LegalTXTS
GLBA – Risks
Inadvertent disclosure of customer information
Malware
Residual storage of customer information
#hectech
@LegalTXTS
Tech@Work: How Employers Can Thrive in the Digital Workplace
HUTSA – What’s a “Trade Secret”?
HUTSA allows claim for misappropriation of a
trade secret
Definition of “trade secret” requires that
reasonable efforts were taken to maintain
secrecy of the alleged trade secret
Allowing employees to store proprietary data
on personal device can destroy reasonableness
of efforts to maintain secrecy
#hectech
@LegalTXTS
HUTSA – Kendall Holdings, Ltd v. Eden
Cryogenics, LLC (6th Cir.Apr. 5, 2013)
One of the defendants (Mitchell) used to work for
the Plaintiff cryogenics company (Kendall)
While working for Kendall, Mitchell maintained
backup set of proprietary shop drawings at his
home (paper & electronic) with Kendall’s permission
After Mitchell stopped working for Kendall, he was
not asked to return drawings
#hectech
@LegalTXTS
HUTSA – Kendall Holdings, Ltd v. Eden
Cryogenics, LLC (6th Cir.Apr. 5, 2013)
Mitchell then started working for a competing
company, who used shop drawings to develop its
product line
In lawsuit that followed, trial court granted
summary judgment to defendants on trade secret
misappropriation claim
On appeal, defendants argued that shop drawings
were not “trade secrets” because Kendall didn’t
take reasonable efforts to protect their secrecy
HUTSA – Kendall Holdings, Ltd v. Eden
Cryogenics, LLC (6th Cir.Apr. 5, 2013)
Plaintiff took these precautions:
Stamped shop drawings with legend barring
disclosure or transmission to unauthorized parties
Included confidentiality provision in Mitchell’s
employment contract
Maintained policies “that attest to the company’s
desire to protect confidentiality and safeguard
proprietary information”
#hectech
@LegalTXTS
HUTSA – Kendall Holdings, Ltd v. Eden
Cryogenics, LLC (6th Cir.Apr. 5, 2013)
Sixth Circuit held that the shop drawings could
qualify as “trade secrets” based on those efforts
at preserving their secrecy
Reversed trial court
#hectech
@LegalTXTS
HUTSA – Kendall Holdings, Ltd v. Eden
Cryogenics, LLC (6th Cir.Apr. 5, 2013)
Key takeaways:
Be careful of letting employees store proprietary
information at home
Have employees sign confidentiality agreements
Keep inventory of all info stored at employee’s
home
Have separating employees sign acknowledgement
that he/she no longer possesses proprietary info
#hectech
@LegalTXTS
INTERNET PRIVACY
VENN DIAGRAM ON
INTERNET PRIVACY
PRIVACY – UH Data Breach
Retired UH professor posted personal data of over
90,000 faculty, students, alumni on public web server
Hackers gained access to private records of 53,000
students and employees on Mānoa campus
Former student files class action against UH for
violation of constitutional right of privacy
Lawsuit settled in April 2012
#hectech
@LegalTXTS
PRIVACY – Personal Data
Potential liability for remote wiping
 Intrusion into seclusion
 Other possible tort claims: conversion, trespass
Potential liability for accessing personal data on dual-
use devices
 Stored Communications Act
 Computer Fraud and Abuse Act
#hectech
@LegalTXTS
E-DISCOVERY & BYOD
Duty to preserve electronic data (litigation holds)
Practical challenges of e-discovery of data on dual-
use devices
Identifying BYOD devices/information
Collecting data from dual-use devices
What data does the employer “control”?
#hectech
@LegalTXTS
Essential Security Controls
• Policies
• Firewall (Perimeter and End Point)
• IPS/IDS
• EncryptedTransmissions
• Secure Authentication
• Vulnerability Management
• Secure Systems with Updates
• Access Control
• Log and Event Reviews
• Testing andValidation
Virtual Desktop Infrastructure
ActiveSync (MS Exchange)
Network Access Control
Mobile Device Management
97
Mobile Device Management
Employee-
Owned
Hardware
Operating
System (MDM)
Applications
(MDM)
Data
MDM Considerations
Feature Employee Consideration
Company assumes control of most
features on the device.
Device is now co-managed with employer
and employer may have visibility into use
of personal device.
Company can control which applications
can be installed.
Employee will lose certain features once
connected to the company network;
dependent of company policy.
Isolation of company data. Can only access company data from
approved applications on the mobile
device.
Remote-wipe of data, and possibly of
whole device.
Risk that personal data will also be
deleted.
Remote locking of device by company. Risk that personal use of the device may
be blocked by employer upon
termination of employment or other HR
action.
100
Essential Considerations
• Do you need to support BYOD?
– Morale, Productivity,Technology, Cost
– Which devices/OS’s? What data?Which applications?Who?
• Essential Security Controls are Primary
– Network Security
– Systems Security
– Policies
• AdditionalTechnologies Enhance Essential Security (not a substitute)
– VDI, ActiveSync, NAC, MDM
• Essential Network Security Goes a LongWay
101
Other Considerations
• Working Hours
– BYOD = 24x7 Availability
– Specify response policies to company communications received on
employee-owned devices and when overtime applies
• GeneralCompany PoliciesApply
– Send official company communications using company email addresses only
– Use branded company templates for emails
– Use only the communications technologies specifically approved for use
(can’t useTwitter if company does not useTwitter)
– Phone calls to customers should originate from company phone numbers;
unless there is an extenuating circumstance
BYOD FinalTips
• Keep Mobile OS updated and Use Passcode Locks
• Assume mobile device is vulnerable at all times and
only visit known safe sites
• Carefully research apps prior to installation
• Do NOT Jailbreak
• Include Mobile Devices in Overall Cyber Security
Planning
Michael Miranda
michael.miranda@hawaiiantel.com
(808) 546-8200
Electronic Signatures
E-SIG – Uses For Employers
Documents that are impractical to obtain
hard-copy signatures for
Onboarding for new-hire paperwork
Form I-9
FormW-4
Benefits administration
#hectech
@LegalTXTS
E-SIG – E-SIGN and UETA
Federal law: Electronic Signatures in Global and
National Commerce Act (E-SIGN)
State law: Uniform Electronic Transactions Act
(UETA) – HRS Chapter 489E
E-SIGN applies to contracts affecting interstate
or foreign commerce
E-SIGN may be overridden by state law where
UETA has been adopted
#hectech
@LegalTXTS
“Electronic signature” means “any electronic sound,
symbol, or process attached to or logically
associated with a contract or other record and
executed or adopted by a person with the intent
to sign the record.”
Technology neutral. Examples of e-sigs:
 Typed name or signature block
 Digitized image of signature
 Digital signature (PKI encryption)
 Biometric identification
E-SIG – E-SIGN and UETA
E-sigs have same legal effect as handwritten
ones
Contract not invalid just because electronic
record or signature was used
If a law requires a record to be in writing,
electronic record satisfies the law
Use and acceptance of electronic transactions is
voluntary
#hectech
@LegalTXTS
E-SIG – E-SIGN and UETA
Technology neutral
Certain kinds of documents cannot be e-
signed (e.g., wills, foreclosure or eviction
notices)
UETA applies only where each party to an
agreement has agreed to conduct the
transaction in electronic form
#hectech
@LegalTXTS
E-SIG – E-Sig System Essentials
 Signature must be unique to person using it
 Signature must be verifiable as belonging to user
 Signature must be under sole control of person using it
 E-sig process must guarantee integrity of signature and
document, ensuring that contents of document remain
unaltered
 Capture and preserve signer’s intention that e-sig has
same force and effect as handwritten signature
#hectech
@LegalTXTS
E-SIG – Other General Tips
E-sigs are not new, but legal precedent on
enforceability of e-sigs is still developing
If you expect the document to end up in litigation,
considering using paper signatures. E.g., arbitration
agreements, trademark agreements, non-competes
 Neuson v. Macy’s Department Stores
#hectech
@LegalTXTS
E-SIG – Other General Tips
Obtain each employee’s written consent to use e-
sigs for HR-related documents
 Consent is based on the context and surrounding
circumstances
 Better practice is to have employee or applicant sign
separate written agreement to consent to use of e-sigs.
The consent doesn’t need to be separate if the main
document to be signed is in electronic form, e.g., a “click-
wrap”
#hectech
@LegalTXTS
E-SIG – Other General Tips
Develop e-sig and document retention policy
Train employees on the policies
#hectech
@LegalTXTS
E-SIG – Arbitration Agreements
Employment agreements often contain terms to
the effect that the employee agrees to resolve
disputes by arbitration
Courts are split on enforceability of arbitration
agreements that are e-signed
#hectech
@LegalTXTS
E-SIG – Arbitration Agreements
Not enforceable: Campbell v. General Dynamics
Gov’t Sys. Corp. (1st Cir. 2005); Kerr v. Dillard
Store Services, Inc., (D. Kan. Feb. 17, 2009)
Enforceable: Bell v. Hollywood Entertainment
Corp. (Ohio Ct.App.Aug. 3, 2006)
#hectech
@LegalTXTS
ElijahYip, Esq.
eyip@cades.com
(808) 521-9326
Blog: www.legaltxts.com
Twitter: @LegalTXTS

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Tech@Work: How Employers Can Thrive in the Digital Workplace

  • 2.  Litigation partner at Cades Schutte LLP  Practices commercial litigation, media law  Founder and chair of firm’s Digital Media and Internet Law practice group  Twitter Handle: @LegalTXTS  Hashtag for this training seminar - #hectech ELIJAHYIP
  • 3. SOCIAL MEDIA & EMPLOYMENT Image by David Saunders [CC-BY-SA-2.0] via Flickr
  • 4. TOPICS COVERED Social media policies Social media in hiring Discipline and investigation related to social media conduct of employees #hectech @LegalTXTS
  • 5. SM POLICIES – NLRB Memos Issued memos on August 18, 2011: http://1.usa.gov/RXYEOr January 24, 2012: http://1.usa.gov/RXYxm6 May 30, 2012: http://1.usa.gov/RXYlTW Memos do not have force of law, but do create risk for employers wanting to adopt certain policies. Must weigh various risks. #hectech @LegalTXTS
  • 6. SM POLICIES – NLRB Memos Employers generally can’t have social media policy that prohibits employees from: Harming employer’s reputation or criticizing employer on social media Using company information (including trademarks, logos) on personal social media profiles Discussing controversial topics on social media #hectech @LegalTXTS
  • 7. SM POLICIES – NLRB Memos Speaking to media about terms and conditions of employment Airing out work concerns on social media instead of using internal procedures On Sept. 7, 2012, NLRB published first decision re social media in which it followed the logic of the Guidance Memos in striking down Costco’s social media policy #hectech @LegalTXTS
  • 8. SM POLICIES – Guiding Principles Deter high-risk social media behavior (i.e., loss prevention for employer) Try to comply with employment and labor laws Create parameters for appropriate and beneficial social media use #hectech @LegalTXTS
  • 9. SM POLICIES – The Essentials Define what “social media” is State to whom policy applies; might need more than one policy Limit when and how employees may use social media Remind employees of dangers and ramifications of using social media #hectech @LegalTXTS
  • 10. SM POLICIES – The Essentials Set guidelines for when and how employees may (or may not) use social media on behalf of employer Set guidelines on interactions with, or statements about, co-workers Set guidelines on interactions with, or statements about, outsiders Describe consequences of non-compliance #hectech @LegalTXTS
  • 11. SM POLICIES – Suggested Points Limit use of company equipment for purposes of social media activity Remind employees to use good judgment Permanency of online content No such thing as anonymity Blurring of work and personal lives #hectech @LegalTXTS
  • 12. SM POLICIES – Suggested Points Encourage courtesy and civility Prohibit discriminatory remarks, harassment, threats of violence, unlawful conduct Remind employees to disclose affiliation with employer when posting content that promotes company or its products/services #hectech @LegalTXTS
  • 13. SM POLICIES – Suggested Points Protect intellectual property and trade secrets Clarify ownership and control over social media assets Link to existing company policies Link to applicable professional codes of conduct Set guidelines on media relations #hectech @LegalTXTS
  • 14. SM IN HIRING 37% of companies are researching job candidates using social networking sites (Source: 2012 CareerBuilder survey) Managers may be researching applicants on social media already even if HR doesn’t know it Need to implement policies to minimize risk Gaskell v. University of Kentucky (E.D. Ky. 2010) #hectech @LegalTXTS
  • 15. SM IN HIRING – Password Requests 36 states are considering employer social media password request laws Bills introduced at HI legislature this year did not pass Possible federal legislation #hectech @LegalTXTS
  • 16. SM IN HIRING – Good Practices 1. Be consistent 2. Limit searches to publicly accessible sites 3. Update hiring procedures/train managers 4. Consider using HR specialist as a filter 5. If using a third-party vendor, comply with FCRA requirements #hectech @LegalTXTS
  • 17. SM DISCIPLINE – General Rules Employees can be disciplined or terminated for their social media conduct, but… Beware of violating NLRA. Ask: Did employee in engage in “concerted, protected activity”?  Did the employee discuss the terms and conditions of employment?  Did the employee discuss the post or the subject matter with other employees?  Was the employee trying to bring a concern to management’s attention? #hectech @LegalTXTS
  • 18. SM DISCIPLINE – Example Cases Hispanics United of Buffalo, Inc.: Employees posting Facebook messages about co-worker’s criticisms of their work habits Pier Sixty, LLC: Calling manager nasty names but ending post with “VoteYES for the UNION.” DesignTechnology Group, LLC: Facebook messages complaining about manager’s denial of request to close store earlier #hectech @LegalTXTS
  • 19. SM INVESTIGATIONS EEOC: harassment via social media raises “same types of issues” Failure to investigate complaints about harassment and take corrective action could expose employers to liability Espinoza v. County of Orange (Cal. Ct.App. Feb. 9, 2012) #hectech @LegalTXTS
  • 20. Michael Miranda • Maryknoll 1990, UCF, Gonzaga, UH • Miranda Rights • Geek Passion • Coder at Heart • Cyber Security Spartan • HawaiianTelcom
  • 21. HawaiianTelcom does not specifically endorse any of the companies mentioned in this presentation.
  • 22. SOCIAL NETWORKING SITES Michael Miranda, Sr. Manager, HawaiianTelcom
  • 31. HR Considerations • “Eyeballs” are on SNS, it is the “norm” • Branding must extend and be consistent on social media sites • Opportunities to advertise (i.e. LinkedIn) • Open and public interactive communications
  • 32. Risks and Mitigation Risks • Informal communications may become “business” communications • Critical reviews can hurt your business • Stolen user account credentials could be used to hurt your image and business Mitigation • Be formal with all communications • Do not conduct transactions on SNS • Monitor and respond to negative reviews quickly • Strategize to protect your user account credentials
  • 34. • “hackers destroyed my entire digital life in the span of an hour” • Victim Account Info Needed: – Master EmailAddress (for recoveries) – BillingAddress – Last 4 Digits of a Credit Card – NoAdvanced Security Beyond Password • Social Engineered and Exploited Procedures to Gain Access to his accounts with: Apple, Gmail, Amazon andTwitter
  • 35. Damage • Deleted 8 years worth of email on Gmail • Took overTwitter account to broadcast offensive messages • Erased all data on iPhone, iPad and Macbook – Family photos – Work documents and email
  • 36. User Account Strategy • Use a separate business email address for SNS and other business activity, including background checks • Use an alias email address instead of a real email address (even for recovery email addresses)
  • 38. .com • Commit to a an Online Presence on The Popular Platforms • Treat as a Primary Communication Channel • Monitor/RespondTimely and Professionally
  • 39. SNS for Business…Securely • Only for informational business communications. DO NOT: – Contract using SNS messaging – Transmit or receive sensitive information • Monitor and respond consistently • Segregate and protect business SNS accounts • Use two-factor authentication when available
  • 40. BYOD Michael Miranda, Sr. Manager, HawaiianTelcom
  • 41. Why BYOD? 1. Ease of working outside the office 2. Staff have relevant equipment 3. Attract and retain top talent (any age) 4. Reduce device management costs 5. Attract and retain younger workers • Source: http://www.citrix.com/lang/English/lp/lp_2314315.a sp
  • 42. Expected Benefits of BYOD? 1. Improved Employee Satisfaction 2. Increased worker productivity 3. Greater mobility for workers 4. More flexible work environments for employees 5. Reduced IT costs • Source: http://www.citrix.com/lang/English/lp/lp_2314 315.asp
  • 49. 49
  • 52. Large SMBs SMBs Represent 94% of All Hawaii Businesses 52 80% have 20 Employees or Less
  • 54. 54
  • 56. 56
  • 57. =
  • 58. 90% ActedWithin 24 Hours Mobile Users 94% Searched for Local Info 70% Called a BusinessAfter Searching 66% Visited in Person 45% Use for In-Store Research 722M Smartphones Shipped in 2012
  • 60. BYOD Risks • Costs – Cheaper for employees or employers? • Physical Security – Weak Passcodes – Lost or Stolen • Intellectual property theft after job termination
  • 62. Mobile Devices Attacked “Like its 1999” • Phishing Scams, Malicious Web Sites/Advertisements, Malicious Apps • Zbot.ANQ – Reportedly installs as a trojan on aWindows computer – Social engineers user to install software on mobile phone and to provide phone number to hacker – Hijacks SMS messages from banks to steal money
  • 63. 0.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00% 70.00% 80.00% Market Share Malware 2011 Apple iOS • Data is not public • Isolated reports of malware • 775,000 Apps!
  • 64. Top 5 Mobile Content Associated with Malware 1. Pornography 2. Known Spam Sites 3. Computer/Internet 4. Web Advertisements 5. Entertainment
  • 67. LEGAL RISKS OF BYOD Employment laws Fair Labor Standards (FLSA) TitleVII (harassment and hostile work environment) Health Insurance Portability and Accountability Act (HIPAA) Gramm-Leach-Bliley Act (GLBA) Sarbanes-Oxley Act (SOX) #hectech @LegalTXTS
  • 68. LEGAL RISKS OF BYOD Americans with Disabilities Act (ADA) Section 5 of the Federal Trade Commission Act Data disposal laws (HRS § 487R-2) Security breach laws (HRS § 487N-2) Hawaii UniformTrade Secrets Act (HUTSA) Privacy laws E-discovery laws #hectech @LegalTXTS
  • 70. FLSA – Overtime Requirements Non-exempt employees must receive overtime pay (at least 1.5x regular pay rate) for hours worked over 40 in a workweek. Employee doesn’t need to be asked to work beyond a 40-hour workweek to be entitled to overtime pay. He/she just needs to perform overtime work for employer’s benefit Employees could rack up overtime by using personal devices for work w/o employee’s consent if no clear BYOD policy in place #hectech @LegalTXTS
  • 71. FLSA – Allen v. City of Chicago  Chicago police officer sued employer under FLSA for working “off the clock” using department-issued PDAs or other electronic communication devices without receiving overtime pay.  Officer alleged that PDAs required them to be on call 24/7  In March 2011, court denied motion to dismiss  In January 2013, court granted conditional certification of a collective action for the case; 200 officers allowed to join action #hectech @LegalTXTS
  • 72. FLSA – Tips Be careful of relying on de minimis exception Track hours worked remotely Institute policy requiring prior written authorization to work remotely via mobile device. Make sure to communicate policy. #hectech @LegalTXTS
  • 73. HIPAA
  • 75. HIPAA – Requirements The issue is patient health information ending up on mobile devices HIPAA mandates the “implementation of security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level.” 45 C.F.R. § 164.308(a)(1) HIPAA also requires “physical safeguards for all workstations that access ePHI, to restrict access to authorized users.” 45 C.F.R. § 164.310(c) #hectech @LegalTXTS
  • 76. HIPAA – Omnibus Rule HIPAA Omnibus Rule took effect on March 23, 2013; compliance due date is September 23, 2013 HIPAA compliance used to be limited to “covered entities” and their “business associates” Under Omnibus Rule, all providers of services to health care providers, health insurers, HMOs and employee health benefit plans must comply if they create, receive, or maintain protected health information on behalf of a covered entity #hectech @LegalTXTS
  • 77. HIPAA – Lost or Stolen Devices 40% of large HIPAA rule violations involved lost or stolen devices (per 2012 HHS study) HHS:“[H]ad these devices been encrypted, their data would have been secured.” Consider preventing local storage of patient data on mobile devices #hectech @LegalTXTS
  • 79. GLBA – “Financial Institutions” GLBA applies to “financial institutions.” Scope of “financial institutions” can be broad. mortgage brokers nonbank lenders real estate appraisers educational institutions #hectech @LegalTXTS
  • 80. GLBA – Safeguards Rule Each covered institution must develop, implement, and maintain a “comprehensive information security program” Program must include “administrative, technical and physical safeguards” #hectech @LegalTXTS
  • 81. GLBA – Safeguards Rule Program objectives are to: Insure the security and confidentiality of customer information Protect against any anticipated threats or hazards to the security or integrity of such information; and Protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer. #hectech @LegalTXTS
  • 82. GLBA – Information Covered Applies to all “customer information” in possession of financial institution Information does not have to pertain to customer of financial institution Can be information of customer of other financial institutions that provided the information #hectech @LegalTXTS
  • 83. GLBA – “Customer Information” “Customer Information” is any information: a consumer provides to obtain a financial product or service from the institution about a consumer resulting from any transaction with the institution involving a financial product or service; or otherwise obtained about a consumer in connection with providing a financial product or service to that consumer #hectech @LegalTXTS
  • 84. GLBA – Risks Inadvertent disclosure of customer information Malware Residual storage of customer information #hectech @LegalTXTS
  • 86. HUTSA – What’s a “Trade Secret”? HUTSA allows claim for misappropriation of a trade secret Definition of “trade secret” requires that reasonable efforts were taken to maintain secrecy of the alleged trade secret Allowing employees to store proprietary data on personal device can destroy reasonableness of efforts to maintain secrecy #hectech @LegalTXTS
  • 87. HUTSA – Kendall Holdings, Ltd v. Eden Cryogenics, LLC (6th Cir.Apr. 5, 2013) One of the defendants (Mitchell) used to work for the Plaintiff cryogenics company (Kendall) While working for Kendall, Mitchell maintained backup set of proprietary shop drawings at his home (paper & electronic) with Kendall’s permission After Mitchell stopped working for Kendall, he was not asked to return drawings #hectech @LegalTXTS
  • 88. HUTSA – Kendall Holdings, Ltd v. Eden Cryogenics, LLC (6th Cir.Apr. 5, 2013) Mitchell then started working for a competing company, who used shop drawings to develop its product line In lawsuit that followed, trial court granted summary judgment to defendants on trade secret misappropriation claim On appeal, defendants argued that shop drawings were not “trade secrets” because Kendall didn’t take reasonable efforts to protect their secrecy
  • 89. HUTSA – Kendall Holdings, Ltd v. Eden Cryogenics, LLC (6th Cir.Apr. 5, 2013) Plaintiff took these precautions: Stamped shop drawings with legend barring disclosure or transmission to unauthorized parties Included confidentiality provision in Mitchell’s employment contract Maintained policies “that attest to the company’s desire to protect confidentiality and safeguard proprietary information” #hectech @LegalTXTS
  • 90. HUTSA – Kendall Holdings, Ltd v. Eden Cryogenics, LLC (6th Cir.Apr. 5, 2013) Sixth Circuit held that the shop drawings could qualify as “trade secrets” based on those efforts at preserving their secrecy Reversed trial court #hectech @LegalTXTS
  • 91. HUTSA – Kendall Holdings, Ltd v. Eden Cryogenics, LLC (6th Cir.Apr. 5, 2013) Key takeaways: Be careful of letting employees store proprietary information at home Have employees sign confidentiality agreements Keep inventory of all info stored at employee’s home Have separating employees sign acknowledgement that he/she no longer possesses proprietary info #hectech @LegalTXTS
  • 92. INTERNET PRIVACY VENN DIAGRAM ON INTERNET PRIVACY
  • 93. PRIVACY – UH Data Breach Retired UH professor posted personal data of over 90,000 faculty, students, alumni on public web server Hackers gained access to private records of 53,000 students and employees on Mānoa campus Former student files class action against UH for violation of constitutional right of privacy Lawsuit settled in April 2012 #hectech @LegalTXTS
  • 94. PRIVACY – Personal Data Potential liability for remote wiping  Intrusion into seclusion  Other possible tort claims: conversion, trespass Potential liability for accessing personal data on dual- use devices  Stored Communications Act  Computer Fraud and Abuse Act #hectech @LegalTXTS
  • 95. E-DISCOVERY & BYOD Duty to preserve electronic data (litigation holds) Practical challenges of e-discovery of data on dual- use devices Identifying BYOD devices/information Collecting data from dual-use devices What data does the employer “control”? #hectech @LegalTXTS
  • 96. Essential Security Controls • Policies • Firewall (Perimeter and End Point) • IPS/IDS • EncryptedTransmissions • Secure Authentication • Vulnerability Management • Secure Systems with Updates • Access Control • Log and Event Reviews • Testing andValidation
  • 97. Virtual Desktop Infrastructure ActiveSync (MS Exchange) Network Access Control Mobile Device Management 97
  • 99. MDM Considerations Feature Employee Consideration Company assumes control of most features on the device. Device is now co-managed with employer and employer may have visibility into use of personal device. Company can control which applications can be installed. Employee will lose certain features once connected to the company network; dependent of company policy. Isolation of company data. Can only access company data from approved applications on the mobile device. Remote-wipe of data, and possibly of whole device. Risk that personal data will also be deleted. Remote locking of device by company. Risk that personal use of the device may be blocked by employer upon termination of employment or other HR action.
  • 100. 100
  • 101. Essential Considerations • Do you need to support BYOD? – Morale, Productivity,Technology, Cost – Which devices/OS’s? What data?Which applications?Who? • Essential Security Controls are Primary – Network Security – Systems Security – Policies • AdditionalTechnologies Enhance Essential Security (not a substitute) – VDI, ActiveSync, NAC, MDM • Essential Network Security Goes a LongWay 101
  • 102. Other Considerations • Working Hours – BYOD = 24x7 Availability – Specify response policies to company communications received on employee-owned devices and when overtime applies • GeneralCompany PoliciesApply – Send official company communications using company email addresses only – Use branded company templates for emails – Use only the communications technologies specifically approved for use (can’t useTwitter if company does not useTwitter) – Phone calls to customers should originate from company phone numbers; unless there is an extenuating circumstance
  • 103. BYOD FinalTips • Keep Mobile OS updated and Use Passcode Locks • Assume mobile device is vulnerable at all times and only visit known safe sites • Carefully research apps prior to installation • Do NOT Jailbreak • Include Mobile Devices in Overall Cyber Security Planning
  • 106. E-SIG – Uses For Employers Documents that are impractical to obtain hard-copy signatures for Onboarding for new-hire paperwork Form I-9 FormW-4 Benefits administration #hectech @LegalTXTS
  • 107. E-SIG – E-SIGN and UETA Federal law: Electronic Signatures in Global and National Commerce Act (E-SIGN) State law: Uniform Electronic Transactions Act (UETA) – HRS Chapter 489E E-SIGN applies to contracts affecting interstate or foreign commerce E-SIGN may be overridden by state law where UETA has been adopted #hectech @LegalTXTS
  • 108. “Electronic signature” means “any electronic sound, symbol, or process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” Technology neutral. Examples of e-sigs:  Typed name or signature block  Digitized image of signature  Digital signature (PKI encryption)  Biometric identification
  • 109. E-SIG – E-SIGN and UETA E-sigs have same legal effect as handwritten ones Contract not invalid just because electronic record or signature was used If a law requires a record to be in writing, electronic record satisfies the law Use and acceptance of electronic transactions is voluntary #hectech @LegalTXTS
  • 110. E-SIG – E-SIGN and UETA Technology neutral Certain kinds of documents cannot be e- signed (e.g., wills, foreclosure or eviction notices) UETA applies only where each party to an agreement has agreed to conduct the transaction in electronic form #hectech @LegalTXTS
  • 111. E-SIG – E-Sig System Essentials  Signature must be unique to person using it  Signature must be verifiable as belonging to user  Signature must be under sole control of person using it  E-sig process must guarantee integrity of signature and document, ensuring that contents of document remain unaltered  Capture and preserve signer’s intention that e-sig has same force and effect as handwritten signature #hectech @LegalTXTS
  • 112. E-SIG – Other General Tips E-sigs are not new, but legal precedent on enforceability of e-sigs is still developing If you expect the document to end up in litigation, considering using paper signatures. E.g., arbitration agreements, trademark agreements, non-competes  Neuson v. Macy’s Department Stores #hectech @LegalTXTS
  • 113. E-SIG – Other General Tips Obtain each employee’s written consent to use e- sigs for HR-related documents  Consent is based on the context and surrounding circumstances  Better practice is to have employee or applicant sign separate written agreement to consent to use of e-sigs. The consent doesn’t need to be separate if the main document to be signed is in electronic form, e.g., a “click- wrap” #hectech @LegalTXTS
  • 114. E-SIG – Other General Tips Develop e-sig and document retention policy Train employees on the policies #hectech @LegalTXTS
  • 115. E-SIG – Arbitration Agreements Employment agreements often contain terms to the effect that the employee agrees to resolve disputes by arbitration Courts are split on enforceability of arbitration agreements that are e-signed #hectech @LegalTXTS
  • 116. E-SIG – Arbitration Agreements Not enforceable: Campbell v. General Dynamics Gov’t Sys. Corp. (1st Cir. 2005); Kerr v. Dillard Store Services, Inc., (D. Kan. Feb. 17, 2009) Enforceable: Bell v. Hollywood Entertainment Corp. (Ohio Ct.App.Aug. 3, 2006) #hectech @LegalTXTS
  • 117. ElijahYip, Esq. eyip@cades.com (808) 521-9326 Blog: www.legaltxts.com Twitter: @LegalTXTS