Category Archives: Idaho

February 28, 2011

What Should a Social Networking Policy Include?

by Nicole C. Snyder

    Five to ten years ago, employee handbooks typically addressed personal employee internet use with a provision like this one:  “Employees shall not use company computers for personal use.  All email and online communication shall be for business purposes only.”  As to social networking sites such as Facebook or MySpace, often employers simply elected to block employee access.

    Times have changed.  It is increasingly rare for companies try to enforce these types of policies and practices.  The goal now is to regulate what employees say when they are online.  This is particularly important when it comes to social networking.

 

   What should a social networking policy include?  At a minimum, it should address the following:

  • a statement that employees must not reveal confidential company information to anyone outside the company;
  • a reminder that any communication that perpetuates workplace harassment or discrimination is prohibited;
  • expectations about when it is permissible or impermissible to access social networking sites during work hours or with the use of company computers or cell phones; and
  • a rule against revealing the identity of a company’s business partners, clients, or customers.

Because technology and social networking trends change quickly, a company’s social networking policy should be evaluated and updated fairly often.  As with any change in policy and/or updates to an employee handbook, it is important to communicate the change and obtain each employee’s acknowledgment of it.

February 2, 2011

February 3: Beyond the Basics in Employment Law

On February 3, Anthony Hall, Dean Bennett, and I will be co-presenting at an employment law seminar in Boise.  The seminar is called "Beyond the Basics in Employment Law" and is intended to update human resources professionals, business owners, and employment attorneys on the recent developments in this area of the law.

We will be presenting on wage and hour issues, including classification issues, pitfalls in the use of independent contractors, compensability issues for employees working on or off the clock, and other timely topics of significance to this area of the law. 

In a separate session, we'll discuss new regulations applicable to the FMLA and the forthcoming regulations under the ADA Amendments Act of 2008.  As we mentioned in a previous post, those regulations will likely be implemented soon. 

The seminar will be held at the Doubletree Hotel, 2900 Chinden, Boise, Idaho beginning at 8:30 a.m.  We hope you join us.  Same-day registration is available. 

January 26, 2011

Precedent Regarding the Scope of Workplace Internet Posting Policies Delayed

by A. Dean Bennett

Employers may have to wait for another case for precedent regarding workplace internet posting policies.  In October 2010, the NLRB filed a complaint against the American Medical Response of Connecticut, Inc., after the company fired an employee who made disparaging comments on Facebook about her workplace and boss. 

The Complaint alleged violation of Section 7 of the National Labor Relations Act that protects workers’ rights to “self-organization, to form, join or assist labor organizations, to bargain collectively through representation of their own choosing and to engage in other concerted activities for the purpose of collective bargaining of other mutual aid protection.”

At issue in that case was an employer’s policy, which stated “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, coworkers and/or competitors.” 

Many commentators expected the new, more employee friendly NLRB, to conclude that such a broad policy was unlawful because it prohibits protected speech.  But today, the parties to that case called off a hearing and appear to be engaged in settlement talks. 

It might be time to revisit your workplace internet posting policies.  Is your policy so broad that it prohibits discussion about wages and working conditions?  If so, your policy may be unlawful.  Although a court has not expressly decided the issue, plaintiffs’ counsel are on notice that the argument and legal theory has some traction. 

January 22, 2011

Understanding the Idaho Trade Secrets Act and its Relevance to Former Employees

by Nicole C. Snyder

It is often concerning when an employee is discharged or quits her job and goes to work for a competitor.  In the absence of a non-competition agreement, the former employer may claim that the employee has stolen trade secrets and used them in her new job.

Idaho has adopted the Uniform Trade Secrets Act, codified under Idaho Code § 48-801, et seq.  The Act prohibits the misappropriation of “trade secrets,” defined as:

[I]nformation, including a formula, pattern, compilation, program, computer program, device, method, technique, or process, that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy… .

If an employer claims a former employee has violated the Trade Secrets Act, is the claim likely to succeed?

Maybe. It is important for employers to recognize that there are significant limitations on the protections against former employers under the Trade Secrets Act.  In a very recent case, Wesco Autobody Supply, Inc. v Ernest, the Idaho Supreme Court recited this language from a prior decision:

[T]he legislature did not intend the [Idaho Trade Secrets Act] to be read so broadly as to preclude the hiring of an employee from a competitor; the legislature also did not intend that merely hiring a competitor's employee constitutes acquiring a trade secret.”  Instead, “[a]n employee will naturally take with her to a new company the skills, training, and knowledge she has acquired from her time with her previous employer. This basic transfer of information cannot be stopped, unless an employee is not allowed to pursue her livelihood by changing employers.

In the Wesco case, the Court found it was possible that one employee violated the Trade Secrets Act when the employee took and used the former employee’s customer lists, lists showing customer buying preferences, history of customer purchases, and custom paint formulas.  The Court, however, was unwilling to say that other employees had violated the Trade Secrets Act based merely on the fact that their customer relationships caused the customers to follow the former employees to a new employer.

In sum, if a company’s leadership is worried about the risk of employees working for a competitor and using the knowledge and relationships they built for a competitor’s advantage, then reliance on the Idaho Trade Secrets Act may be inadequate.  In such cases, it is important to utilize carefully-crafted noncompetition agreements.