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Managing Productivity – The unseen cost of employees. IT HR and Legal considerations of employee privacy and productivity. Panel Introduction. Seminar Overview. Discussion How is time wasted in an organization Technology, Processes, People Productivity Monitoring – Legal Perspective
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Managing Productivity – The unseen cost of employees. IT HR and Legal considerations of employee privacy and productivity
Seminar Overview • Discussion • How is time wasted in an organization • Technology, Processes, People • Productivity Monitoring – Legal Perspective • Productivity Monitoring – HR Perspective • Tools to help monitor activity and maximize productivity • Objective • Identify causes of lost productivity • Cost of lost productivity • Identify effects of monitoring from an HR and Legal perspective. • Identify the need to manage lost productivity
How is time being wasted? • Non-work related activities • Social Media, Shopping, Internet, Porn, Fantasy Sports, Socializing, personal devices • Security • Bring Your Own Devices. • Theft • Technology breeches • Productivity Wasters • Out dated Technology - Can waste 20 min per day • Viruses, Malware • In adequate Internet Pipe • Network Design • Outdated telecom systems • Wasted time in meetings • Unclear expectations • Duplicate processes • Document Management
Productivity Wasters • Out dated hardware and software. • Can waste 20 min per day • Viruses, Malware • Network Design • In adequate Internet Pipe • Outdated telecom systems • Wasted time in meetings • Unclear expectations • Duplicate processes • Document Management
Legal Concerns re: Workplace Monitoring Ben Himmelstein, Esq. Shareholder at Wong Fujii Carter, PC Board of Director – Arizona Small Business Association
Computer Monitoring - Generally • Very few civil cases where employee sues employer for breach of privacy – No damages • Most employees just quit • Comes up more frequently in criminal cases (child pornography and fourth amendment search and seizure) • Also comes up in cases with public employees working for the State of Federal Government • California’s Constitution provides privacy rights against both private and government entities – most cases from California
Some Factors • does the corporation maintain a policy banning personal or other objectionable use of its computers • does the company monitor the use of the employee's computer or e-mail • do third parties have a right of access to the computer or e-mails • did the corporation notify the employee, or was the employee aware, of the use and monitoring policies In re Reserve Fund Sec. & Derivative Litig., 275 F.R.D. 154, 160 (S.D.N.Y. 2011)(citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (U.S. Bkrptcy Ct. 2005)
California Standard • Employee must possess a legally protected privacy interest –this includes conducting personal activities without observation, intrusion, or interference as determined by established social norms derived from such sources as the common law and statutory enactment. • The plaintiff's expectations of privacy must be reasonable. This element rests on an examination of customs, practices, and physical settings surrounding particular activities, as well as the opportunity to be notified in advance and consent to the intrusion. • the plaintiff must show that the intrusion is so serious in nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms.Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 287, 211 P.3d 1063, 1073 (2009)
What Does All This Mean • It is clear that employees have a limited privacy right depending on certain circumstances (examples to follow) • So, how do you as business owners mitigate any privacy rights they may have in the workplace? • Notice, notice, notice – handbooks, policies, etc.
Examples • Hernandez v. Hillside (Ca) • State v. MA (NJ) • Doe v. XYZ Corp (NJ) • Stengart v. Loving Care Agency, Inc. (NJ) • Peterson v. City of Mesa (AZ)
Interesting Questions • What about private email over workplace network? • What about personal devices brought to work and used in the workplace? • What about cell phones and cell phone email? • Text messages?
Managing Performance IT HR and Legal considerations of employee privacy and productivity
Where is the line? • Using the company resources • Using company hardware for surfing the net • Using the companies time to engage in social media? • Growing trend of BYOD • Using personal devices for work • Employees prefer their own technology • Housing company information
What are the risks • According to The Society for Human Resource Management , security breaches are huge. Millions of devices are lost or stolen each year. And a locate request is sent every 3.5 seconds. • Companies have no control over an employee’s device (or company data stored on it) if law enforcement officials demand that the person turn over their device as evidence, experts said.
Monitoring Employee Computer Activities • The water cooler has moved • It is online • It is public • It is verbal • There are pictures and video • NLRB case • Fired for criticizing supervisor on Facebook • Claimed that the firing violated an employee's right to engage in concerted activities.
What is HR’s responsibility • Compliance and ownership when it comes to data. • Businesses that fall under compliance mandates such as PCI DSS, HIPAA, or GLBA have requirements related to information security and safeguarding specific data. • Those rules still must be followed even if the data is on a laptop owned by an employee.
What is HR’s responsibility? • Make sure you have a clearly defined policy for BYOD. • You should collaborate with IT and Legal and agree to lay out minimum security requirements. • Only then can devices to connect to company data and network resources be used
When determining policy • Limit the number of employees who are allowed to use their own devices for work purposes. *Limit the privilege to employees with a “need to know, a need to use, and a need to have” their own devices, • Consider what would happen if an employee left the company with a device with corporate data on it or if their device is lost or stolen. • Consider installing remote wipe software on employees’ devices so sensitive company information can be erased if the device is lost. However, the employee’s consent must be obtained before such software can be installed. • Consider using a “sandbox” on an employee’s device—a separate area where company e-mail, calendar and other functions are stored. The employee would have to enter a separate password to enter this area, and remote wipe software could erase data only in the corporate sandbox.
When determining policy • Prohibit nonexempt employees from answering work related e-mails outside working hours when using their own equipment, companies can avoid being liable for wage and hour and expense reimbursement costs. • Consider restricting employees from using devices such as iPhones that sync automatically with other devices in their homes. This prevents company data from being transferred automatically to other devices. • Make it clear to employees that they should not let family and friends use personal devices that are used for company purposes and should not share or store passwords on these devices. • Require employees to report promptly when a smart device they use for work is lost or stolen.
Productivity Management Strategies and tools
Information • Do you know how your employees are spending their time? • Do you have duplicate process? • Do you have efficient processes? Knowledge is Power
WorkFlow Microsoft Confidential – Presentation under NDA
