Employment Law and Workplace Privacy: Technological advancements in the workplace, electronic monitoring and recording of employees, and how workplace surveillance can violate employment laws

John S. Bolesta | Sheppard Mullin

John Bolesta is special counsel in the Labor and Employment Practice Group in the firm’s Washington, D.C. office.

Areas of Practice

John represents management in labor and employment litigation matters. He represents clients in numerous industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees.

John counsels clients on all aspects of federal, state and local equal employment opportunity and fair employment practices laws and regulations, and he regularly advises clients on confidentiality, trade secrets, non-solicitation and non-compete matters. Moreover, he represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. His experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before administrative law judges and in court.

John develops and presents to employer and other groups on topics related to labor and employment law, including maintaining a union-free environment, privacy in the workplace, sexual harassment, occupational safety and health, implementation of substance abuse policies and discrimination in the workplace. Further, he is routinely called upon to draft employment policies, handbooks and employment-related contracts. In addition to his labor and employment experience, he also assists clients extensively in commercial litigation disputes.

David P. Phippen | Constangy, Brooks, Smith & Prophete, LLP

David Phippen has more than 30 years of experience in management-side labor and employment law, and is Senior Counsel in the Metro Washington, D.C. office of the national law firm of Constangy, Brooks, Smith & Prophete, LLP. He represents clients in a full range of labor and employment matters, with particular emphasis on traditional labor relations, employment law litigation in federal and state courts, human resources counseling, wage and hour law, administrative proceedings, restrictive covenants, arbitration, and alternative dispute resolution. His full bio is available here: https://www.constangy.com/people-David-Phippen.

Morgan Forsey | Sheppard Mullin

Morgan Forsey is a partner in the Labor and Employment Practice Group in the firm’s Los Angeles office.

Areas of Practice

Morgan has significant experience defending single plaintiff wrongful termination, discrimination, harassment, and whistleblower matters, and representative wage and hour class and PAGA actions through trial. Morgan partners with and advises clients in the technology, healthcare, transportation, retail, staffing and hospitality industries on all facets of the employment relationship, including privacy, leaves of absence, and wage and hour compliance. In addition to civil litigation matters, Morgan regularly represents employers before governmental agencies and assists employers in handling regulatory audits and investigations. Recently, Morgan has supported employers in responding to the COVID pandemic, including providing strategic advice on developing policies and practices, compliance issues, privacy, and health and safety. As the former managing partner of Sheppard Mullin’s San Francisco office, she has practical experience handling the many challenges that employers face.

Melissa Tribble | Sanford Heisler Sharp, LLP

Melissa Tribble is a Plaintiff-side employment attorney at Sanford Heisler Sharp, LLP in Palo Alto, California. While her practice focuses on employment discrimination and retaliation, she has published on the ways technology impacts privacy and civil rights including her articles Free Speech Off My Body: Protecting Abortion Patients and Medical Privacy in Light of the First Amendment, published in the UC Davis Law Review, and Weighing Workplace Surveillance for Remote Workers, published through Law360. Melissa’s work seeks to promote the responsible use of technology to benefit society without undermining individual liberties.

Session I – Technological Advancements in the Workplace: At What Cost? — The NLRB General Counsel’s Memo Urging Board to Curtail Employer Use of Surveillance Technologies Raises Potentially Significant Concerns | 11:00am – 12:00pm

• Recent regulatory activity from EEOC and DOJ regarding employers’ use of algorithmic decision-making tools and their impact on various employment-related laws | 11:00am – 11:15am
• The current state of the law as it relates to unionized and non-unionized employers | 11:15am – 11:30am
• NLRB GC Memorandum 23-02 and the dramatic shift in the law being proposed by the agency’s top lawyer | 11:30am – 11:45am
• Practical steps employers should consider in anticipation of the likely change in the law | 11:45am – 12:00pm

Break | 12:00pm – 12:10pm

Session II – Electronic Monitoring and Recording of Employees in the Workplace(s) of 2023 | 12:10pm – 1:10pm

• Why employers monitor and/or record employee activity and potential risks | 12:10pm – 12:15pm
• The Electronic Communications Privacy Act of 1986 and Stored Communications Act | 12:15pm – 12:20pm
• Worksite monitoring | 12:20pm – 12:25pm
• Remote worksite monitoring | 12:25pm – 12:30pm
• Employer rights and risks | 12:30pm – 12:35pm
• Employee privacy rights | 12:35pm – 12:40pm
• State laws on consent to recording | 12:40pm – 12:45pm
• Multi-state communications issues | 12:45pm – 12:50pm
• Productivity enhancement policy | 12:50pm – 12:55pm
• Free speech | 12:55pm – 1:00pm
• National Labor Relations Act issues of duty to bargain with unions, interference with Section 7 rights of employees, and employees’ right to engage in the protected concerted activity of recording workplace actions/events | 1:00pm – 1:05pm
• Policy development considerations | 1:05pm – 1:10pm

Break | 1:10pm – 1:20pm

Session III – How Workplace Surveillance Can Violate Employment Laws | 1:20pm – 1:50pm

• Workplace surveillance | 1:20pm – 1:30pm
• Employment discrimination and retaliation | 1:30pm – 1:40pm
• Labor laws / NLRA | 1:40pm – 1:50pm