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Oct. 28 — The path from Atari to Epstein Becker Green may not be obvious, but for employment lawyer Adam Forman, a youthful fondness for video games led to a specialty in workplace technology issues.
“I’m a kid of the ’80s,” Forman told Bloomberg BNA. “I grew up with every Atari” gaming system and was “an early adopter” of home computers. Focusing on the impact of technology “seemed a natural evolution of that interest,” he said.
“Most of my education and outreach activities are in the technology space,” said Forman, who works in Epstein Becker Green’s Detroit and Chicago offices. He frequently speaks at conferences about digital hiring algorithms and office collaboration platforms such as Slack, SharePoint and Facebook At Work.
“By and large,” however, most of his legal work is traditional labor and employment law, he said. “I do a lot of policy review.”
Nevertheless, “where I can, I try to combine” technology and employment law, Forman said. For example, when lecturing on the Labor Department’s new overtime rule, he’ll discuss how an employer can use technology to facilitate compliance.
An employer could add a warning to employees’ computer logins reminding them not to work overtime without authorization or eliminate an employees’ e-mail access outside normal work hours, Forman noted.
Forman in a member of Bloomberg BNA's Labor and Employment Technology and Innovation Board. The board’s goal is to provide feedback that will enable Bloomberg Law to create best-in-class products and workflow tools for labor and employment lawyers. Its members function as beta testers for Bloomberg law products, Forman said.
Since Forman started practicing law in 1996, ideas toward technology have changed. “As technology continued to evolve, the issues that could confront employers continued to multiply,” he said. “The speed with which these technologies have been developed and adopted in the workplace have outpaced both employer policies and procedures as well as federal and state statutes.”
In the 1990s, it was firmly established that employers could regulate devices they provided. Today, however, the issue is murkier because many employees own the devices, such as their personal smartphone, that are used to conduct at least some company business. “Now we’re at more of a pendulum swing,” Foreman said. “In 2016, the pendulum is recognizing employee rights as well and is trying to strike a balance.”
“Employers want to safeguard their proprietary information,” he said, “but at the same time, there is a balance being developed between that and the rights of employees being private people.”
Sometimes employers try to safeguard their proprietary information by requiring their employees to sign noncompete agreements that bar them from taking new jobs with their employers’ competitors. Today’s version of “the Rolodex is my LinkedIn account,” Forman said, so some noncompete agreements prohibit employees from updating their profiles for a specific amount of time. He pointed out that some courts have ruled that merely updating a LinkedIn account doesn’t violate a noncompete.
Another “modern-day technology problem” concerns whether employers are liable for security breaches involving the “plethora of personally identifiable information” they store about employees, Forman said.
When dealing with workplace technology issues, “there is no ‘one-size-fits-all’ solution” because each employer should consider the “business needs and the culture of the organization” as well as legal factors, Forman said.
As a general rule, though, “employers should focus on the behavior, not the gadget.” Forman said. Because “technology will only continue evolving and become more integral to the daily lives of employees,” employers shouldn’t prohibit employees from using the new technology but instead should “consider identifying rules of when, where and how the technology may be used during working time,” he said.
Forman doesn’t encourage his clients to establish a business use-only policy for employees who surf the web at work. Such a policy could be difficult to enforce and also unlawful under federal labor law, he said. “Employers may want to consider having an internet usage policy that permits reasonable use of the company’s internet services during non-working time,” as long as such use doesn’t violate the company’s goals and policies, he said.
With regard to social media, he said that “great care should be used when drafting a policy attempting to regulate employees’ use of social media” because “many federal and state laws give employees rights to post or otherwise discuss certain workplace issues on social media.”
If an employee’s job duties include posting on the employer’s social media account, the employer should change the login and password information as soon as the employee leaves the job, he said.
Furthermore, employers that permit their non-exempt employees to access company e-mail during non-working hours must realize that such activity could be considered compensable under the Fair Labor Standards Act, Forman said.
Forman’s involvement with labor and employment law started by chance. He had planned to become an environmental lawyer, but his parents’ neighbor—a lawyer for the Detroit Newspapers Agency—offered him a summer job while he was a law student at Syracuse University.
After working on labor and employment law projects relating to the company’s newspapers, Forman was hooked. Employment law carried “the significance to real people’s lives that I craved,” he said. “It was interesting intellectually. It was passionate emotionally.”
Forman was selected for membership in the College of Labor and Employment Lawyers in June, and he’s active in the American Bar Association’s Section of Labor and Employment Law, especially its workplace technology committee. He’s also on the council of the labor and employment section of the Michigan State Bar.
Outside the legal arena, Forman has been on the board of directors at Orchards Children’s Services since 2008, and this year he’s the board’s vice chair. Orchards is a private child welfare agency that provides foster care, adoption and family preservation services.
Forman also serves as a board member of JARC, which provides residential and support services for people with disabilities. “It’s very important that you give back to the community,” Forman said.
His commitment to service goes back to his undergraduate years at Michigan State University. While there, he started Food Movers, a group that picked up usable but unmarketable food items from restaurants and grocery stores and delivered them to local charities.
In his spare time, Forman likes to ski and travel with his family. He has two daughters, ages 10 and 12.
He also enjoys wearing Homer Simpson cuff links. He said he has collected more than 50 pairs.
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