Fans of unscrupulous professional football players and coaches often justify their heroes’ misbehavior with a now-classic sports adage: “If you ain’t cheatin’, you ain’t tryin’.” In the 1970s, for example, legendary Oakland Raiders owner Al Davis allegedly bugged locker rooms, watered down fields, and spied on other teams using a helicopter. Such extreme shenanigans are
Ed Piper is a technology-focused employment lawyer. He advises clients in all aspects of labor and employment law (including both counseling and litigation) and focuses on guiding employers through the intricacies of the ever-evolving digital workplace. He has experience in matters involving misappropriation of trade secrets, data security, employee privacy, non-competition and non-solicitation agreements, and employment-related antitrust issues.
Depending on your allegiance, “the Play” was one of either the most memorable or the most infamous moments in the history of college football. It happened in the final seconds of 1982’s annual “Big Game” between the Stanford Cardinal and U.C. Berkeley’s Golden Bears. As the fourth quarter was winding down, the Bears had taken a 19-17 lead over the Cardinal, but Stanford quarterback John Elway would have none of it: he overcame a dire 4th-and-17 and drove the Cardinal into field goal range. The field goal was good, giving Stanford a 20-19 lead with just seconds left in the game. As Stanford prepared to kick off, Cal announcer Joe Starkey observed, presciently, that “only a miracle can save the Bears now!”
Continue Reading Northwestern University Football Players Can’t Vote for Union Representation …but it’s not over until it’s over…
As we blogged about earlier, courts in most states just plain don’t like employee noncompete agreements. Particularly when it comes to mid- and low-level employees, courts worry that enforcing a noncompete agreement will hamper innovation, restrict competition, and unfairly burden a former employee’s ability to earn a living. For that reason, a court typically will review an noncompete’s justification, scope, and length with the judicial equivalent of a fine-tooth comb.
Courts have been picking away at the enforceability of employee noncompetes for years, but more recently, legislatures have jumped into the mix with varying levels of aggressiveness. California has long banned noncompetes outright, and several other states either have followed suit (e.g., North Dakota) or are considering whether to pass similar laws (e.g., Massachusetts, Washington). Still others have adopted laws that make it easier for employers to enforce noncompetes (e.g., Georgia), or are considering whether to do so to remedy past judicial reticence in the area (e.g., Wisconsin).Continue Reading Oregon Tightens the Screws on Noncompetes: 18 Months Will Soon Be the Maximum Period of Restriction
As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.
Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.Continue Reading Oregon Legislature to Employers: Stay Out of Employees’ Personal Social Media Accounts!
Last week, the 9th Circuit held in two related cases from California and Oregon that FedEx misclassified approximately 2,600 delivery truck drivers as independent contractors, rather than as employees. The cases—Alexander v. FedEx and Slayman v. FedEx—are an important reminder for employers that reality matters more than labels when it comes to classifying workers.
On that note, the most succinct (and most memorable) summary of the rulings appears in Judge Trott’s short concurrence in Alexander:
“Abraham Lincoln reportedly asked, ‘If you call a dog’s tail a leg, how many legs does a dog have?’ His answer was, ‘Four. Calling a dog’s tail a leg does not make it a leg.’ . . . Labeling the drivers ‘independent contractors’ in FedEx’s Operating Agreement does not conclusively make them so . . . .”
The two cases dealt with virtually identical facts. FedEx’s Operating Agreement (“OA”), which principally governed its business relationships with the 2,300 California drivers and 363 Oregon drivers in each class, contained several generalized clauses that suggested the drivers were independent contractors. For example, the OAs provided that “the manner and means of reaching [the parties’ “mutual business objectives”] are within the discretion of the [driver], and no officer or employee of FedEx . . . shall have the authority to impose any term or condition on the driver . . . which is contrary to this understanding.” The two opinions noted, however, that neither California nor Oregon law views a contract’s description of a worker as an independent contractor as dispositive of the worker’s true status.Continue Reading 9th Cir. Finds FedEx Delivery Drivers Are Employees, Not Contractors
Last month, the White House released a comprehensive report on the use of “big data” in the public and private sectors. Employers should pay particular attention to one of its central forecasts: the EEOC and other federal antidiscrimination agencies may begin scrutinizing how employers collect and use big data in managing their workforces.
The concept of “big data” is difficult to define. The report observed that big data generally “reflect[s] the growing technological ability to capture, aggregate, and process an ever-greater volume, velocity, and variety of data.” “Big data” describes the process by which an entity gathers massive amounts of information from social media, the internet, and other (typically electronic) sources. Websites use big data to deliver user-specific advertisements. Medical researchers and healthcare providers use it to develop targeted disease prevention methods. Financial institutions use it to better detect cyber fraud. The CIA even used big data to track down Osama Bin Laden.Continue Reading Does Data Discriminate? Perspectives for Employers on the White House’s Recent “Big Data” Report
Earlier this month, a federal judge in San Francisco sentenced David Nosal to a year in prison, three years’ supervised release, 400 hours of community service, and $60,000 in fines. His crime? Nosal violated the Computer Fraud and Abuse Act (“CFAA”), among other federal statutes, when he departed from his former employer with a stash of its most sensitive business data.
Employment law doesn’t normally develop in criminal courtrooms, but Nosal’s case is an important exception. The outcome of his pending appeal to the 9th Circuit will almost certainly offer important guidance for employers on how best to prevent and, where necessary, remedy employee data theft. It’ll likely reinforce a familiar lesson: employers should craft their employee technology policies with an eye toward the law of data security. A well-developed IT infrastructure can give an employer substantial legal advantages and lead to better outcomes when employee data theft occurs.
What Is The CFAA?
To understand the practical importance of Nosal’s case, employers should first understand how the CFAA can apply to departing employees who steal company data. Congress passed the CFAA in 1986 – before the advent of most modern information technology – to combat computer hacking. The CFAA makes it a federal offense to obtain information or perpetrate a fraud either by (a) accessing a computer “without authorization,” or (b) by “exceed[ing] authorized access” on any such computer. In addition to its criminal penalties, the CFAA creates a parallel civil cause of action for hacking victims.Continue Reading David Nosal, Employee Data Theft, and Why Employment Lawyers Should Understand Their Clients’ IT Infrastructure
Today we continue with our recent New Years theme. Not to be outdone by their neighbors to the south, the Oregon Legislature was also busy in 2013. And now that 2014 is upon us so too are a slew of new Oregon employment laws. In areas ranging from social media to sick leave, Oregon employers should carefully review their policies and practices to ensure current compliance with these new laws. Here is a round up of the major changes to employment laws enacted by the Oregon Legislature (and the City of Portland) that employers should be aware of in 2014:
- Employers may not demand access to employees’ social media accounts. Beginning on January 1, 2014, employers may not demand access to employees’ or applicants’ personal social media accounts. House Bill 2654, which Governor Kitzhaber signed into law on May 22, 2013, prohibits employers from requiring an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” It further prohibits employers from requiring that an employee “friend” or otherwise connect with an employer via a social media account, and from compelling the employee to access the account in the employer’s presence such that the employer can view it. A number of other states have passed or are considering similar legislation.