The Chariot - A Helios HR Newsletter

Rising Costs of Litigation
Impacted by Technology

Technology has become a way of life, with plenty of evidence in the workplace:

Employees using a variety of technology, including smart phones, e-mail, and flash drive.
Organizations taking advantage of blogging for marketing and recruitment initiatives
Web 2.0 brands, including Facebook and LinkedIn, are prominent across industries, in the private sector and not-for-profits alike

Simultaneously, this is the first time four generations are together in the workforce: Matures, Boomers, Generation X, and Generation Y (Millennials). The Millennial generation, considered to be the most technology proficient, is the fastest growing segment of the workforce, and employers are facing uncharted challenges and opportunities.

A March 2008 Symantec survey reporting on the use of technology in the workplace by Millennials, as well as all other generations combined, reveals that employees:

Use any application, technology, or device they want, regardless of source or organizational IT policy (69% of Millennials/31% of others).
Regularly access Facebook/MySpace while at work (66% of Millennials/13% of others).
Use instant messaging on corporate networks (46% of Millennials/22% of others).
Store corporate data on personal devices:
- Personal PCs (39% of Millennials/24% of others)
- Flash drives (38% of Millennials/14% of others)
- Smart Phones (13% of Millennials/6% of others)

More devices and technologies in the workplace lead to more electronic data, and, therefore, more organizational exposure. Electronic discovery (e-discovery), the process in which electronic data is secured and searched with the intent of using it as evidence in a legal case, was made subject to disclosure requirements in a December 1, 2006 amendment to The Federal Rules of Civil Procedure (FRCP). As a result, e-discovery now accounts for up to 90% of the total costs of litigation.

Other organizational exposure includes:

Boundaries blurring between personal and work time, leading to Fair Labor Standards Act (FLSA) implications.
Data breaches increasing -- businesses, governments and universities reported a 69% increase in data breaches in the first half of 2008 over the same period in 2007 (Washington Post).
Electronic communication, subject to discrimination (addressed in Title VII and other laws), though employees may not be as mindful when sending electronic communication as they are when producing a written document.
Organizational monitoring of technology, including the web. NOTE: If organizational policies state that technology is being monitored then the company must follow this practice. Courts have ruled that organizations have a duty to investigate and report when illegal activities are undertaken on organizational technology.

Employers should recognize that technology-related liabilities exist in the workplace and be ready to address the issues to reduce exposure.

Some tips to reduce organizational exposure include:

Review technology-related policies semi-annually and ensure they are up-to-date.
Ensure policies emphasize the organization’s right to monitor and that there is no expectation of privacy.
Monitor for harassment or other inappropriate use of technology that violates Federal or state laws or company policies.
Carefully review electronic-related policies, as well as the consequences for violation of these policies, in new employee orientation and on an ongoing basis thereafter.
Address data security and record retention with all staff.

The prudent employer will be mindful of the inevitable changes that are occurring in the workplace as technology becomes more sophisticated and adeptly used by more and more employees. Maintaining a productive and secure workplace will be even more dependent upon effectively enforcing technology related practices.

Issue 12 | December 2008

In this Issue

What You Must Do Before Year End - Avoid Compliance Headaches

Life After Layoffs

Collaborative Technologies

Rising Costs of Litigation