Electronic Monitoring & February 2017 Updates in Labor and Employment Law

Electronic Monitoring (aka “Granny Cameras”) in the Workplace

On January 17th, 2017 a Minnesota legislative workgroup published recommendations for the legislature to consider when developing regulations related to the use of electronic monitoring technologies to protect vulnerable children and adults and hold accountable perpetrators of abuse. Electronic monitoring is a general term referring to various forms of surveillance used to monitor the specific behaviors of a person or persons within the framework of the technology. Electronic monitoring may be visual video, audio, or both video- and audio-based technologies.

Employers and employees may have similar and/or conflicting reasons for the use of the technology within a workplace setting. Employers may have an interest in monitoring employees to detect electronic theft of the employer’s assets, monitor workplace productivity, and to investigate complaints of employee misconduct including harassment and discrimination claims. Employees may want to use the technology to record conversations with clients, or take photos of interactions with other employees or management.

Although the outcomes of the legislative workgroup are expected to only impact residential care providers (skilled nursing facilities, assisted livings, home and community based services), the rapidly declining costs of video and audio based technologies brings concern for all employers in understanding the permissible use of the technology within the workplace. Below is a list of considerations employers must evaluate within the complex parameters of federal and state law:

• What are the business interests in engaging in electronic monitoring and how do these interests align with the employee’s rights under federal and state law?
• Who, what, and how will electronic monitoring be done?
• What types of notice and consent are required?
• What policies and procedures should an employer have prior to engaging in electronic monitoring?
  What considerations should employer’s make before issuing discipline or discharging an employee as a result of conduct discovered on electronic monitoring devices?
• What are the requirements related to activities that should not be monitored, frequency of monitoring, encryption, server security or data storage concerns?
• What are the special considerations for unionized employers? Unionized employers, those where all or a select classification of employees are represented under a collective bargaining agreement, also are subject to the National Labor Relations Act (NLRB). There is case law that suggests that any installation and use of hidden surveillance cameras is a mandatory subject of bargaining.

Employers should annually review existing electronic communications, use of personal and company electronic devices, and standards of conduct policies as compliance with this area of labor and employment law is changing as quickly as the technology.

February 2017 Updates in Labor and Employment Law

ACA Executive Order

On January 20th, President Trump signed an executive order directing agencies to “exercise all authority and discretion available to them” to “waive, defer, grant exceptions from, or delay the implementation of a provision or requirement” of the ACA. The executive order leaves a lot to be desired and does not specifically mention or give guidance to employers. For now, employers should continue to follow the regulations and prepare for the impending deadlines laid out by the ACA.

OSHA Beryllium Final Rule Issued

The Occupational Safety and Health Administration has issued a final rule “to prevent chronic beryllium disease and lung cancer” in workers by limiting their exposure to beryllium and beryllium compounds. Beryllium and beryllium compounds are used in the aerospace, shipyard, electronics, energy, telecommunication, medical, and defense industries. The rule reduces the permissible exposure limit (PEL) for beryllium and establishes a new short-term exposure limit over a 15-minute sampling period. The rule also provides for additional risk management tasks including posting warning signs in regulated areas, labeling all contaminated equipment, developing written exposure plans and providing training to workers. The rule provides staggered compliance dates. Employers are advised to start compliance activities as soon as possible.

Duluth, Minnesota Paid Sick Leave Discussions Continue

The discussion of paid sick leave requirements continues in Duluth. A series of eight public input sessions begins Friday, February 17th at the Duluth City Council chambers in efforts of collecting input from employers, employees and the community at large. As covered in previous Employer Advisor articles, the Minneapolis and St. Paul city councils last year passed measures requiring employers to provide sick pay to employees.

Currently before the Minnesota legislature is a bill that would stop cities from being able to enact sick pay or minimum wage policies locally. Such legislation would usurp or preempt city or county ordinances. Employers can become involved in the outcome of the bill by contacting their local elected officials.

Missouri Became the 28th right to Work State

For those Minnesota employers with locations or employees in Missouri, on February 6, 2017, Missouri enacted a right to work law, making it the 28th right-to-work state in the country. Right-to- work laws generally remove mandatory union membership as a condition of employment. The Missouri law applies to both the public and private sector and forbids unions from charging compulsory fees to nonmembers to pay for the cost of collective bargaining and other nonpolitical expenses. This law will go into effect August 28th, 2017 and will not apply to existing contracts until they expire or are changed. New Hampshire is awaiting a House vote on a similar bill.

If you have questions regarding this article or other labor and employment law matters, please contact Krysta Mitchell or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.