Thursday, March 19, 2015

National Symposium on Technology Recap

Earlier this week, I had the pleasure of attending the ABA Labor and Employment Law Section’s National Symposium on Technology in Labor and Employment Law.  The speakers and participants made it one of the most informative and enjoyable conferences I’ve been to in a long time.  Here are some highlights of the conference that illustrate why you should consider attending next year: 
  • The first day started off with a discussion of big data, data mining, and the legal considerations that should be taken into account before an employer uses or purchases data sets to assist in decision-making.  Panel members Charles Belle, Lauren Gelman, and Steven Sheinberg pointed out that privacy and discrimination law has not kept pace with technology.  All believe that the law will catch up, and that employers should start thinking about it now.
  • Next, Felicia Davis dazzled – and outright scared – the crowd talking about where robots and artificial intelligence are headed.  Did you know that 47% of jobs currently performed by humans will be turned over to robots within the next decade?  Garry Mathiason says so, and along with the rest of the panel, he described how certain employment relationships will be impacted.
  • Adam Forman then led his panel through the intersection of employment and intellectual property law.  Ever thought about how asking employees to be brand ambassadors is related to trademark and advertising law?  The FTC’s Endorsement Guidelines in particular require employees to disclose their relationship when endorsing their employer’s products or services.  Employment attorneys and human resources may never have heard of these guidelines, and many don’t know how to  comply.  Stay tuned, more on this next week.
  • The first day ended with a panel discussing the current state of government surveillance, led by Brian Koncius.  Through a Chaos Specialist, a NASA Investigator, and a thought leader on the legality of surveillance, the panel explained how the government uses surveillance, how the private sector protects itself, and how privacy laws have yet to have a significant impact on surveillance activities.
  • Day two started off with biometrics and employer tracking, and how this information can be used in litigation and union negotiations.  Nicky Jatana and Matt Helland discussed how data can be more persuasive than people when high tech systems – like finger printing time clocks – are used in wage and hour cases.
  • During the National Labor Relations Board panel, consisting of General Counsel Richard Griffin and Member Harry Johnson, Nicole Decter of Segal Roitman, LLP raised a great question about the NLRB’s decision in Purple Communications.  Under the board decision, employees have the right to use an employer’s email system to engage in statutorily protected communication during non-work time, including soliciting other employees to join a union.  Nikki’s question was this:  If an employer has the right to monitor employee email because it is the employer’s system, will labor unions actually use email to solicit?  GC Griffin and Member Johnson did not speculate, but the question left me wondering.
  • Next, Andrew Selbst (co-author of Big Data’s Disparate Impact), Claudia Center, Tim Elder, and I talked about the tech that employers are using now and the potential for discrimination claims.  It was a lively panel with lots of discussion on video interviewing and how the Americans with Disabilities Act may affect the use of tech.
  • The last panel, moderated by Susan Shapiro, covered the ethical obligations employment attorneys have with regard to our client’s information and the gathering of electronic data from our clients.  Given recent changes to the ABA’s model rules, attorneys are required to maintain and have knowledge of the technology available today. 
It was a great conference.  I met some wonderful people who are focused on the impact of technology in the workplace, and gained helpful insights about what employers can do to reduce their risk of liability.  I highly recommend that employment and labor attorneys consider attending next year.
Posted by: Kate Bischoff 
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