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The Role of a Distracted-Driving Policy in a BYOD Workplace

Posted by Molly DiBiancaOn May 12, 2014In: Policies

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“Risks and Rewards of a BYOD Workplace” was the subject of one of my presentations at our annual employment-law seminar last week.  [FN1]  More and more employers are adopting BYOD policies.  BYOD, which stands for “Bring Your Own Device,” eliminates the need for employers to give employees a smartphone or tablet for work-related purposes.  Instead, the employee brings his or her own device and uses it for both work and personal purposes.  text message on cellphoneThe State of Delaware was an early adopter in the BYOD arena.

Although BYOD policies are popular, they are not risk free.  One (of the many) dangers of employee use of mobile technology is the potential for distracted driving.  Regardless of who owns the device, employers may face liability for an employee who harms a third party due to the employee’s negligent use of a smartphone while driving. 

Many cities and municipalities now prohibit drivers from operating a vehicle and using a cellphone unless they use hands-free device.  Although this is a great start, it may not be enough to prevent liability for employers.  The U.S. Department of Labor, for example, takes a very firm stance on this issue, stating:

Employers have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.

I’m not entirely sure that I would agree with this statement—I don’t know of any “legal obligation” to have a distracted-driving policy.  But I do think that employers should have a distracted-driving policy.

The good news is that the federal government has provided a sample distracted-driving policy for employers to use.  The policy is short and to the point and it makes clear that employees are prohibited from using a hand-held cellphone or smartphone while operating a vehicle. 

If you don’t have a distracted-driving policy, consider whether this sample policy, provided by the National Highway Safety Transportation Administration, isn’t worth implementing.  Even if it’s just a starting point, employers are well advised to have something in place to prevent employees from endangering themselves or others while operating a vehicle.  The NHSTA offers additional resources to employers who want to take further steps to prevent distracted driving by employers. 

And, remember, just because it’s the employee’s own device does not mean that the employer won’t be held liable.  A BYOD workplace is not a defense to a claim of negligence for harm caused by an employee in the course and scope of his or her employment. 

 

[FN1]  Thank you to everyone who attended—it’s always great to see clients and friends in a context that does not involve pending or threatened litigation.

Story of Delaware Medical Examiner Offers Lesson for Employers

Posted by Molly DiBiancaOn March 20, 2014In: Off-Duty Conduct, Policies

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Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

The policies vary.  For example, some employers prohibit employees from working in a second job altogether.  Others prohibit only secondary employment in the same field or with the same duties that the employee performs in his or her full-time employment.  And others only prohibit secondary employment that conflicts with the employee’s job duties. 

The State of Delaware, like many employers, does not have such a policy.  But, if it had, it would likely have prohibited Callery from working as an expert witness, even in his off-duty time.  Do you have such a policy?   Should you?

See ME’s side work under criminal investigation, by Jonathan Starkey and Sean O’Sullivan.

Your Employees Are (Still) Stealing Your Data

Posted by Molly DiBiancaOn October 29, 2013In: Electronic Monitoring, Policies, Privacy In the Workplace

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The Wall Street Journal recently reported some eye-opening results of a survey regarding information theft by employees.  Here are some of the most disturbing (though not surprising) findings from the survey:

  • 50 percent of employees kept confidential information post-separation;
  • 40 percent plan to use confidential information in their future employment; and
  • 60 percent say a co-worker has offered documents from a former employer

So what do these statistics say? In short, they say that your employees are stealing your intellectual propertyEmployee IP Theft

And here are two more interesting findings:

  • 52 percent of employees don’t believe that it’s a crime to use a competitor’s confidential business information; and
  • 68 percent of employees say their organization doesn’t take preventative measures to ensure employees don’t use competitive information.

So what do these statistics say? Well, they say that neither your former employees nor their new employers think there’s anything wrong with stealing and using your intellectual property.

These statistics don’t surprise me at all. Theft of confidential information by departing employees is an epidemic. In my experience, it is one of the biggest challenges faced by employers today. Perhaps the single biggest.

And making matters worse is the fact that most employers don’t know that it’s happening. But it doesn’t have to be this way. Here are some things every employer can do to limit the impact of this epidemic:

Have a policy. Employers should have a confidentiality policy that all employees are required to sign—separate from the employee manual is preferable.

Educate employees. Once is not enough. Employees should be required to re-sign the policy each year. Yes, really. This is a very serious problem and there is no such thing as being too proactive to prevent it.

Use technology. Employees walk away with your data in any number of ways but almost always in a way that involves technology, so put technology to work for you. For example, consider utilizing software that alerts IT any time an employee sends a large number of attachments via email. Limit access to Dropbox and similar cloud-storage sites from work devices.

Ask the tough questions. Even if you’ve done nothing to limit electronic theft beforehand, there’s no time like the present. Ask every departing employee to confirm in writing that he is not in possession of any company property (including in electronic form) and promise that, should he later discover that he does have your property, that he will return it immediately.

See also  Your Employees Are Stealing Your Data

UD Employees’ Confidential Info Hacked

What to Do If Your Employees’ Confidential Data Is Stolen

Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the Computer Fraud and Abuse Act to Work for Employers

Court Finds Duty to Preserve Personal Emails of Employees

Posted by Molly DiBiancaOn October 15, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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The modern workplace presents a cornucopia of problems thanks to technology.  As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible.  After all, employees can just use their personal cellphones to get online.  Add to that reality the fact the growing popularity of BYOD policies. 

So what, you might ask?  Well, one big problem is when an employee uses his personal device or account for company business.  The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account. BYOD

In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

But a new case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).

[H/T Bow Tie Law Blog]

Kansas Court Mitigates the Risks of a BYOD Workforce

Posted by Molly DiBiancaOn August 12, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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BYOD at work is all the rage. What is BYOD, exactly? Well, it stands for “Bring Your Own Device” and, put simply, it means that an employee uses his own smartphone, tablet, or laptop for work as well as for his personal purposes.  BYOD policies raise several concerns, including increased security risks and wage-and-hour issues for work performed at home.  Another issue is one of particular interest to litigators like me—the question of how BYOD policies will affect e-discovery.  In other words, will an employer be on the hook for the preservation of its employees’ personal devices if those devices are used for work and for personal purposes? Discovery of text messages

The answer to this question can have wide-reaching impacts. For example, if the answer is, “yes,” the employer would be responsible for ensuring that each such device is preserved immediately upon the threat of litigation. But telling your employees to submit their personal smartphones to the company’s lawyers is probably not going to go over so well. 

A recent case from a federal court in Kansas gives hope to employers who want to permit employees to use their own devices without risking liability for failing to preserve those devices should litigation arise.  In Cotton v. Costco Wholesale Corp., the District of Kansas denied the employee-plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones. The court’s decision was based on the fact that the employee had not shown that the employer had any legal right to obtain the text messages.  In other words, that the phones and the data they contained were not in the “possession, custody, or control” of the employer.

The court also based its decision on the absence of any evidence that the employees had used their phones for work-related business. Although it wasn’t the controlling factor in the outcome of the case, the fact that it was mentioned by the court is likely enough to give future litigants grounds to argue that where BYOD is the standard policy—officially or unofficially—there is a basis to compel production. But, for now, this decision is definitely a positive sign for risk-adverse employers.

Cotton v. Costco Wholesale Corp., No. 12-2731 (D. Kan. July 24, 2013).

H/T Jay Yurkiw at Porter' Wright’s Technology Law Source blog.

Your Employees Are Stealing Your Data

Posted by Molly DiBiancaOn March 25, 2013In: Electronic Monitoring, Policies, Privacy In the Workplace

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Employee resigns. But before her last day of work, Employee copies thousands of emails and documents from Employer’s computer.  Off goes Employee into the sunset.

How often is this scenario?  I bet most employers think this never happens in their workplace. I’d be willing to bet that it happens in almost every workplace.  It happens with such regularity, yet most employers are absolutely stunned to discover that it’s happened to them. 3d thief cracks safe

If you think it doesn’t happen pretty much all of the time, check out this post at the uber-popular website, Lifehacker.com, titled, How Can I Save All My Work Emails for a Personal Backup?  A reader submitted the following question:

I'm leaving my job and want to take my work emails with me. I've been burned at jobs before, and it became very useful to have an email paper trail behind me. How can I save all the emails so I can access them in the future, just in case I need them?

The author of the piece responds back, providing detailed, step-by-step instructions for how to do exactly that—take with you each and every email you sent and/or received during the course of your employment.

Putting aside how terrible of an idea this is on Lifehacker’s part (can you say, “promoting or endorsing illegal activity?), let’s focus just on the reality—which is, clearly, that your employees are taking your stuff!

What remedies are available to the employer?  Well, most immediately, there’s the demand that the items be returned.  Lawyers have a particular flair when it comes to a well-crafted cease-and-desist letter, so consider having your employment counsel get involved from the outset.

But if the employee refuses to return the documents or ignores your demand, then what? One option is to sue.  A variety of claims may be applicable, depending on the precise nature of the documents and information and on what the employee has done with them since her departure.  For example, the employer may have claims like conversion (civil theft, generally speaking), misappropriation of trade secrets, tortious interference, etc. 

And, depending on where the employee worked, there also may be a claim under the state and/or federal computer-misuse statutes.  In Delaware, for example, we have computer-misuse statutes that provide for recovery of an award of treble damages and attorney’s fees.  And, because Delaware is in the Third Circuit, we have the Computer Fraud and Abuse Act. 

This statute has limited application in other states—including those within in the Fourth and Ninth Circuits, where the Courts of Appeals have rejected the application of the CFAA in the employee-traitor context.  Instead, in those states, the statute is construed as applying only to the true computer hacker. 

The CFAA is a fascinating statute with complex provisions.  The Florida Bar Journal has an excellent analysis of the law—and of the different interpretations of the various Courts of Appeals—for those who may be interested.

For the rest of you, though, now is the time to implement a confidentiality agreement if you don’t already have one in place and to consider just how certain you are about what employees can and cannot take at the end of employment.

See also

Judge's Porn Habit Results In Suspension

Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the Computer Fraud and Abuse Act to Work for Employers

Putting the CFAA to Use, TV Style

DOT Regs vs. Lawful Marijuana Use

Posted by Molly DiBiancaOn December 19, 2012In: Drug Testing, Policies

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Medical-marijuana laws have been passed in several states. Although Delaware passed a law permitting medicinal use of marijuana, implementation was blunted by potential prosecution by the federal government. And, last month, Colorado and Washington voters made recreational use of marijuana legal in those states. Both medical- and recreational-marijuana-use laws raise lots of questions for employers.

One such question is how these laws will impact an employer's ability to drug test employees and applicants. The U.S. Department of Transportation (DOT) requires drug testing for safety-sensitive positions. Applicants must be tested before beginning work. Current employees must be tested in certain circumstances, including following an accident. Marijuana is one of the drugs that must be included in the DOT-required screenings.

In 2009, in response to the passage of medical-marijuana laws in several states, the DOT clarified that marijuana remained unlawful under federal law. The DOT reiterated that medical use of marijuana was still "use" and was still considered a violation of the DOT's regulations.

In response to the Colorado and Washington laws permitting recreational use of marijuana, the DOT has spoken yet again. On December 3, 2012, the U.S. Department of Transportation's (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes. Not surprisingly, the DOT's position is unaffected by these State's laws and the prohibition against marijuana use by anyone in a safety-sensitive position remains fully intact.

The conflict between state and federal drug laws will be resolved eventually. But, until then, the questions and contradictions will continue to cause confusion for employers.

Enforcing an Unwritten Social-Media Policy

Posted by Molly DiBiancaOn December 17, 2012In: Policies, Social Media in the Workplace

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Can an employee be fired for violating a social-media policy that doesn't exist? This is a question that many employers have faced. And, if the NLRB continues to scare employers away from social-media policies, it's a question that will continue to arise.

The answer, simply put, is "yes." Employers need not have express written policies on each and every possible workplace infraction. For example, if an employee decided he would speak only Vulcan at work, he surely could be terminated without legal consequence. Similarly, most employers do not have a policy prohibiting employees from walking around the office on their hands. Yet, terminating an employee for clown-like conduct would not trigger a lawsuit.

The same concept applies when it comes to social media. If an employee posts the employer's confidential information on the employee's Facebook page, the employee can be terminated, right? Whether there is a policy that specifically prohibits employees from leaking confidential information via social media is irrelevant. So long as the adverse action is not being taken for unlawful reasons, a written policy is not necessarily required.

That said, whether an employer can do something is often quite different from whether it should do it. This is particularly true when it comes to social media.

A recent example of this dichotomy involves a meteorologist from Shreveport, Louisiana who was fired for allegedly violating her employer's unwritten social-media policy:

A broadcaster at a news station in Louisiana politely responded to a Facebook comment about her hair. She lost her job over it, via a policy that wasn't codified. Was that legal? Was it fair?

You can read my answer to both questions at Ragan.com.

A Hurricane's a Coming!

Posted by Molly DiBiancaOn October 28, 2012In: Policies

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Hurricane Sandy is heading right for Delaware; Gov. Markell announced a state of emergency earlier today. The hurricane is forecasted to be the second worst in recorded history. Our neighbors in Pennsylvania, New Jersey, and Maryland are facing similarly treacherous weather conditions in the coming days. In light of the anticipated power outages, it's likely that things on the blog will be quiet for the next few days.
sandy.jpg

Until then, here are some of our previous posts on emergency preparedness for employers:

State of Emergency: Liability for Employers During Inclement Weather

Workplace Crisis Management (Earthquake)

Must Exempt Employees Be Paid During Snow Days?

And one from Dan Schwartz in Connecticut relating to Hurricane Sandy.

Hopefully, we'll be back up and running soon. In the meantime, we'll be doing our best to stay dry.

Employee's Tookus Antics Costs Him $2m

Posted by Molly DiBiancaOn September 6, 2012In: Policies, Terminations & Layoffs

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Jason Selch worked as an investment analyst for his employer for 10 years. The company went through multiple mergers and acquisitions and eventually was bought by a Bank of America subsidiary. After the BoA merger, Selch learned that his friend and co-worker had been terminated after declining to accept a pay cut.  

Presumably in protest of his friend's exit, Selch marched into a conference room where the COO and CIO were meeting.  He asked the executives if he was subject to a non-compete agreement.  When the CIO answered that he was not, Selch promptly dropped his drawers and mooned the two executives.

The two execs, to their credit, weren't flustered by the demonstration and simply returned to their discussion and went on with the meeting. Later, at the COO's instruction, HR issued Selch a final written warning, which stated that any subsequent violation would result in his termination.  

When the CEO learned of Selch's flagrant "display" of insubordination, however, he insisted that Selch be terminated.  As a result of being terminated for cause, Selch had to foreit contingency payments of approximately $2 million, which would have vested in a few months. 

Not surprisingly, Selch sued his former employer, claiming that he was entitled to the contingency payments because, in part, the written warning was a contract, which constituted a promise that he would not be fired unless he engaged in a subsequent policy violation. 

The court granted summary judgment to his employer and the decision was upheld on appeal.  In short, the court held that the warning was not a 
"promise" such that an enforceable contract was created. 

What are the employer take-aways from this case?

Well, first, kudos to the executives who, remarkably, managed not to lose their cool after such a visual assault.  Let us all be inspired by their ability to stay focused on the task at hand.

Second, today is my birthday and I find this story more than mildly entertaining. Because it is my birthday, I will take the liberty to be a bit more candid in disclosing my opinion here--what an idiot. Shame on Selch for acting like an immature middle-school kid. The good guys won this battle and I am glad for that. 

Via NY Daily News

Employer Liability for Employee Injuries In the Company's Gym

Posted by Molly DiBiancaOn August 21, 2012In: Cases of Note, Policies, Wellness, Health, and Safety

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Health-and-wellness benefits are all the rage. Some employers offer their employees a discount on gym memberships. Some offer a monthly stipend to be used towards the fees at a health-club. And some have an on-site fitness center.

Employers who are considering building an on-site fitness center for employees commonly want to know how they can protect themselves against a personal-injury lawsuit. For example, an employee drops a dumbbell on his foot and breaks a toe. (Don't laugh, people, broken toes are brutal!)

What's to stop the employee from suing his employer for his injury? Assuming that lifting weights is not part of the employee's job, it would not have been an injury incurred in the "course and scope" of his employment and, therefore, would not be covered by workers' comp. And you, dear employer, own the equipment, including the dumbbell, so you'd surely be the first defendant to be named.

To avoid the "no-good-deed-goes-unpunished" phenomenon, employers will ask whether they can require employees to sign a waiver or release as a condition of using the fitness center. Until a few years ago, the answer was, "not really." Of course, you could require that they sign a waiver but it would not be effective if you ever needed to use it because the law prohibited waivers of claims for future injury.

In 2008, in Slowe v. Pike Creek Court Club, the Delaware Superior Court held that such claims could be released but only if "the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release." In Slowe, the court held that the waiver at issue did not meet this "crystal-clear-and-unequivocal" standard and, consequently, the waiver was not effective, but left open the possibility that a "properly-worded release might effect a waiver of premises liability."

In July, the court had the opportunity to address the issue again and, this time, found the waiver to be enforceable. In Hong v. Hockessin Athletic Club, the plaintiff, a member of the athletic club, signed a comprehensive waiver of liability and release in connection with her membership agreement. The waiver expressly stated that she and all others on her membership assumed the risk of "any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises," including the use of "any equipment in the facility." The court held that this was sufficient to constitute a waiver in "crystal clear and unequivocal" terms and dismissed the suit.

There are no guarantees in life or in the law and this situation is no exception. Although this case offers employers some very good news when it comes to avoiding liability for on-site injury of employees and visitors, it is, of course, not a guarantee. Nevertheless, in light of this case, there seems to be no reason not to require a waiver for your on-site fitness center.

Hong v. Hockessin Athletic Club, No. N12C-05-004-PLA (Del. Super. July 18, 2012).

Separating Personal and Professional: There's an App for That

Posted by Molly DiBiancaOn July 22, 2012In: Electronic Monitoring, Policies, Privacy In the Workplace

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BYOD (short for "bring your own device"), is all the rage these days. Well, at least you'd think so based on all of the on-line talk about it. See, e.g., this post on the WSJ Blog, CIO Report. The basic idea is that employees are using their own electronic devices, such as smartphones and laptops, for work-related purposes. The causes of the BYOD movement are not entirely clear but one explanation is that employees are dissatisfied with the technology provided by their employer, so they just "bring their own" technology with them.

In any event, the reality is that, even in workplaces where no one brings their own device to work, many of us bring our employer-provided devices home with us. For example, it's not uncommon for an employee to have just one smartphone, through which he access both his personal and work email accounts. If the employer pays for or subsidizes the cost of the device and/or the monthly charges, there is an argument to be made that the employer may have some rights to access all data stored on the phone. Divid App.jpg

So what's an employee to do? Heaven forbid we had to carry around two phones everywhere we went. (This would particularly disastrous for airheads like me, who can barely remember to bring one cellphone with us when we leave the house). Well, according to the tech blog, Chip Chick, there is now, officially, an app for that. At least for Android users, anyway.

According to Chip Chick, the aptly named app, Device, "allows you to have your personal device and work device all in one." Users can keep the work side of the device encrypted and secure. If you're a really outstanding [read: show-off] employee, you can even limit the apps that will function on the work side to "business-oriented" apps. And, if you lose your phone (which I do no more than twice a year, I swear), Divide allows you to remotely wipe everything on the work side.

Calling All Employees! . . . As Long As They're Not Driving

Posted by Lauren Moak RussellOn May 29, 2012In: Policies

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text alert.jpgDelaware employers should be aware of the risks of employees' use of cell phones while driving. It's a recipe for litigation. Delaware employers should have a clear policy prohibiting employees from using cell phones whild driving on company business. The use of hand-held devices while driving is illegal in Delaware and employers should avoid liability for employees' violations of state law. As a starting point, employers should prohibit employees from violating any traffic laws while operating a vehicle on company time.

A recent article in the Washington Post takes these concerns one step further, and discusses several incidents in which employees did serious bodily harm to innocent third-parties while they were driving and talking on cell phones. Pizza delivery companies have also learned this lesson the hard way--you no longer see 30-minute delivery guarantees because franchisors were sued when their employees took up dangerous driving practices to meet the deadlines. One plaintiff won a $21.6 million jury verdict in a case arising from a cell-phone related car accident. Significantly, that accident occurred in 2004, before many states prohibited use of hand-held phones for talking or texting while driving.

If you weren't convinced already , these stories should encourage you to communicate clearly with your employees that, regardless of how important their assignment, they may not violate traffic laws to complete it!

Sample Social-Media Policy

Posted by Molly DiBiancaOn October 6, 2011In: Policies, Social Media in the Workplace

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Social-media issues faced by employers continue to change and develop. Your social-media policy (or guidelines, if you prefer), should do the same.  An updated social-media policy is provided via the link below for your reference as a starting point for drafting your own workplace policy addressing employees' social-media use.  There are, of course, any number of variations that may be appropriate for your specific workplace.  The sample is intended to be just that--a sample, to give you a running start when you've got your key stakeholders seated at the table ready to discuss the approach that is appropriate for your particular workforce.  You should consult with qualified employment-law counsel before implementing any new policy to ensure legal compliance.
Sample Social Media Policy YCST.pdf

The End of the Four-Day Workweek

Posted by Molly DiBiancaOn September 5, 2011In: Policies

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The four-day workweek is no more. Well, at least in Utah, reports NPR. Next week, Utah State employees will return to a traditional five-day workweek. The four-day workweek officially died last week but workers can ease their way into the grueling five-day schedule thanks to the Labor Day holiday.

Former Utah Governor John Huntsman initiated the program in 2008, heralding it as a way to increase efficiency and morale, while reducing costs and conserving energy. As our long-time readers may recall, I was skeptical that the purported benefits of a four-day workweek would be realized fully. It seems that my skepticism was well founded. The State-wide program is being abandoned after a legislative audit revealed that the savings were not as great as had been hoped and residents were dissatisfied with the limited access to government services.

Not all four-day workweeks have been unsuccessful, though. The smaller size of local governments appear to be the key to successful implementation of the so-called 4/10 workweek. With fewer employees and offices, towns and municipalities are able to more effectively adjust the program to fit the needs of residents and demands of employees.

As for me, my opinion is unchanged. Workplace flexibility is a good thing. And that’s exactly why the Utah program did not work. Utah’s four-day workweek was mandatory. “Mandatory flexibility” is an oxymoron. That’s why, in my opinion, mandatory workplace flexibility in the form of a state-wide program doesn’t work.