The Technology Challenge: Privacy, I nform ation Security and Com - - PowerPoint PPT Presentation

Pierce Atw ood Em ploym ent Group

October 1 2 , 2 0 1 7

The Technology Challenge:

Privacy, I nform ation Security and Com pliance

INFORMATION SECURITY

Risks, Systems, Breaches, Training

Presented by: Vivek J. Rao Pierce Atw ood LLP ( 2 0 7 ) 7 9 1 -1 1 7 1 vrao@pierceatw ood.com

Data Security in the Digital Age

• Unprecedented value, unprecedented risk
• Not confined to one or two industries
• Security incidents carry:
• Reputational risks
• Operational risks
• Legal risks
• Financial risks

Data Security in the Digital Age

• “There are two types of companies: those

that have been hacked, and those who don’t know they have been hacked.”

• John Chambers, Cisco
• While threats continue to evolve rapidly,

core fundamentals of data security are known and can and must be implemented

Data Security in the Digital Age

“A company’s data security measures must be reasonable in light of the sensitivity and volume of consumer information it holds, the size and complexity of its data

• perations, and the cost of available tools

to improve security and reduce vulnerabilities.”

• Federal Trade Commission

I nvolving HR in Data Security

• HR as data custodian…
• HR as procurer of services…
• HR as policy communicator and enforcer…

I nvolving HR in Data Security

• HR as data custodian…
• HR departments oversee large amounts of

sensitive employee data

• Policies and practices surrounding collection,

storage, use, disclosure, safeguarding, destruction

• Data minimization

I nvolving HR in Data Security

• HR as procurer of services…
• Staff augmentation
• Vendor risk management

– Planning – Due diligence and third-party selection – Contract negotiation – Ongoing monitoring – Termination

I nvolving HR in Data Security

• HR as policy communicator and enforcer…
• Effective data security program requires IT

expertise

• But collaboration and coordination between

HR and IT can be a difference-maker

I nvolving HR in Data Security

• HR as policy communicator and enforcer…
• Development and dissemination of data

security policies and procedures

• Training employees on good data security

habits

• Addressing security violations placing

company data at risk

• Coordination of security incident response

Negligence as a Key Risk Vector

Source: IBM Security, March 2017

Negligence as a Key Risk Vector

• Studies consistently rank as among the

top causes of data breaches:

• lost devices
• poor password practices
• falling prey to phishing attacks

Negligence as a Key Risk Vector

Source: IBM Security, March 2017

Training

• Sound IT security policies and procedures rely
• n clear and effective dissemination and

training

• Not just computers and emails – consider

physical security training and social engineering training beyond just phishing and pharming

Breach Response

• Develop and update breach response plan

– Types of data and incidents covered – Employee responsibilities during data breach – Internal escalation process – External escalation process

– Outside counsel – Cybersecurity expert – Public relations consultant

• Ensure awareness, training

The Defend Trade Secrets Act: A New Tool to Protect Business Information

Presented by: Daniel Strader Pierce Atw ood LLP ( 2 0 7 ) 7 9 1 -1 2 0 2 dstrader@pierceatw ood.com

16

Defend Trade Secrets Act

• 1. Federal civil cause of action
• Adds civil action for trade secret misappropriation

under federal law

• Largely tracks the UTSA
• Provides for federal question jurisdiction in federal

courts

• 2. Ex parte seizure
• Can obtain ex parte order providing seizure of property
• When necessary to prevent propagation or

dissemination of the trade secret

• 3. Whistleblower protections
• Employer cannot obtain exemplary damages unless

notice of immunity provided in employee agreements

17

Private Civil Actions

An ow ner of a trade secret that is m isappropriated may bring a civil action under this subsection if the trade secret is related to a product

• r service used in, or intended for use in, interstate
• r foreign commerce.

"owner” . . . means the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed

18

“Trade Secret”

. . . means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs,

• r codes, whether tangible or intangible, and whether or

how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if-- (A) the owner thereof has taken reasonable m easures to keep such inform ation secret; and (B) the information derives independent econom ic value, actual or potential, from not being generally know n to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information

19

Protect Trade Secrets

• Definition of “trade secret” requires that the
• wner of the information “has taken

reasonable measures to keep such information secret”

• To establish “reasonable measures”:
• Identify trade secrets
• Adopt technological protections (passwords,

limiting system access based on position, encryption, protection for personal devices, etc.)

• Adopt physical protections (locked cabinets, file

rooms, limit access to information, etc.)

20

Rem edies

• Court may grant an injunction to prevent actual or

threatened misappropriation

• Cannot prevent a person from entering into an employment

relationship

• Actual damages – lost profits
• Unjust enrichment separate from actual damages
• OR a reasonable royalty
• Exemplary damages (double) and attorney’s fees

available for willful and malicious misappropriation

• Attorney’s fees also available for misappropriation

claims brought in bad faith (which can be proven circumstantially) or motion to terminate injunction brought or opposed in bad faith

21

Ex Parte Seizure

• In extraordinary circumstances, court may order

“narrowest” seizure of property (e.g. customer lists, laptops, phones) necessary to prevent the propagation or dissemination of the trade secret

• Application supported by affidavit or verified complaint
• Requires clear finding that:

1. Injunction would be inadequate 2. Immediate and irreparable injury without seizure 3. Balance of hardships favors seizure 4. Likely to succeed on merits 5. Third party has property to be seized 6. Application describes property and location 7. Third party would destroy, move, hide, or otherwise make property inaccessible to the court 8. Applicant has not publicized the request

• Extremely rare remedy – courts have been hesitant to
• rder seizure in lieu of TRO

22

W histleblow er I m m unity

• Immunity from civil and criminal liability under

the EEA for employee’s disclosing trade secret to government or an attorney solely for the purpose

• f reporting a suspected violation of law
• An employer shall provide notice of the immunity

set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.

• Employee includes contractors and consultants
• Consequence of noncompliance is inability to recover

exemplary damages or attorney’s fees

23

Adopt Policies

Confidentiality Policy

• Define trade secrets
• Specify obligation to

maintain secrecy of trade secrets during and following employment

• Identify consequences for

improper use or disclosure

• Prohibit use of third‐

party (e.g., former employer) trade secrets

• Include whistleblower

immunity language Electronic Communications Policy

• Require strict adherence

to all technological controls

• Address personal devices
• Address (prohibit?) use of

personal email for work purposes

• Address (prohibit?)

personal cloud storage for work purposes

• Prohibit sharing

passwords Return of Employer Property

• Include all forms of

property, including electronic

• Insist on return no later

than last day of employment

• For employer‐provided

portable devices, state that device will be remotely wiped

24

Enforcem ent

• Ensure:
• All employees receive policies (obtain signed

acknowledgement)

• All employees sign NDA
• Take disciplinary action for policy

violations

• Upon termination:
• Cut off all electronic access immediately
• Insist on return of employer property
• Remind employee about ongoing obligations

under NDA

25

I m pact So Far

• Use of the seizure remedy has been

extremely limited

• Only one reported case so far – defendant had

previously disregarded TRO and failed to delete data as ordered, so court ordered seizure of his laptop for inspection by plaintiff

• No cases yet where court has sanctioned

employee’s actions under immunity provision

• However, this has been a common defense, and is

a good reason to bring UTSA claim as well

• Largest impact has been increase in federal

litigation

26

Social Media in the Workplace

Presented by: Lily B. Rao Pierce Atw ood LLP ( 2 0 7 ) 7 9 1 -1 1 7 2 lrao@pierceatw ood.com

Social Media Topics in Brief

28

• Recruitment and screening

using social media

• Monitoring and controlling

employees’ social media use

• Social media policies
• Problematic personal use

Potential Legal Concerns

29

• National Labor Relations Act
• Fair Credit Reporting Act
• Anti-Discrimination Statutes

(Title VII, ADEA, ADA)

• General privacy rights (First

Amendment, SCA, FWA)

?

Recruitm ent and Screening

30

Fair Credit Reporting Act

31

• Requires a job applicant or current

employee’s consent before the employer hires a third party to run background checks.

• Social media searches can be considered

part of background checks. If the proper consent is not obtained, the employer could violate the FCRA and be subject to civil penalties.

Anti-Discrim ination Statutes

32

• Employers conducting social media searches

as part of making employment decisions will normally obtain information about the candidate’s protected characteristics, such as age, race, religion, etc. (profile, photos, group affiliations).

• The company can become liable for

discrimination based on knowledge of those characteristics.

• Also take care not to rely upon limited source
• f applicants. Varying rates of participation

among certain races, ages and nationalities.

General Privacy Rights

33

• There may be a common law

right to privacy in non-work- related invitation-only social media spaces.

• Certain states have laws

prohibiting employers from requiring social media usernames and passwords, or from requiring employees to access social media pages in front of employer.

Recruitm ent Using Social Media

34

• Make policy decision whether or not to conduct

Internet or Social Media searches of candidates.

• Establish search protocols and procedures and

apply them consistently.

• Provide EEO training for those reviewing.
• Search only publicly-available information (no

“pretexting”) and do not ask for passwords.

• Insulate decision maker from impermissible

considerations.

• Check your facts.
• Document reasons for denials.

Social Media Use at W ork

35

Social Media Policies and Restriction

36

• 3 1 % of companies track use of social

media

• 4 3 % block access to social media

platforms on company computers and networks

• 2 7 % of companies provide social media

training to employees who engage in social media activities on behalf of company (i.e., marketing, HR, PR)

W hy Em ployees Say They Use Social Media at W ork

37

Source: Pew Research Center (2014)

I m pact of Social Media Policy on Office Use

38

Source: Pew Research Center (2014)

National Labor Relations Act

39

Section 7 of the NLRA guarantees the right to

• rganize, join, or assist unions, and to engage in

“concerted activities” for the purpose of “mutual aid or protection.”

• Policy prohibiting discussion of wages or terms and

conditions of employment on social media is an unfair labor practice in violation of Section 8(a)(1).

• Employee comments on social media are generally

not protected by federal labor law if they are unrelated to group activity among employees.

National Labor Relations Act

40

The following employer social media guidelines have been deemed problematic by the NLRB:  Do not use language “of a general offensive nature” or be “rude or discourteous” to a client

• r coworker.

 Do not make “disparaging or defamatory remarks about company.”  Do not make statements that may be considered “objectionable or inflammatory – such as politics or religion.”  Do not distribute “libelous, defamatory, scurrilous, abusive, or insulting” literature.

General Privacy Rights

41

Employers are permitted to monitor work- related use of electronically generated communications when monitoring serves a legitimate business interest.

• See Also:
• Stored Communications Act
• Federal Wiretap Act

Social Media Policy Best Practices

42

 Must be reasonable and related to a legitimate business interest.  Must not chill Section 7 rights.  Must not outweigh employee privacy.  Outline when, if at all, it is permissible to use social media at work.  Be clear about when and how you will be monitoring employee social media usage.  Reference other policies such as Confidentiality, anti-discrimination, and anti-harassment.  Consider whether you need a separate policy for use of the company’s official social media.

Personal Use Test Cases

43

W hen is it okay to take em ploym ent action based on an em ployee’s personal use of social m edia?

Offensive Tw eets

Can Em ployee be fired for m aking racist or insensitive posts on personal social m edia page?

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Hashtag Sickday

Em ployee calls in sick, and later posts a photo

• f herself speeding

dow n m oguls at Sugarloaf on her I nstagram page.

45

#sickday #theloaf

Electronic Records: Creation, Retention, and Discovery

Presented by: Katy Rand Pierce Atwood LLP (207) 791-1267 krand@pierceatwood.com

Working backwards: Discovery

Personnel File Requests

26 M.R.S. 631: Personnel file includes “any formal or informal employee evaluations and reports relating to the employee’s character, work habits, compensation and benefits” whether stored in “paper, microfiche or electronic form.”

Litigation

Discovery of electronically stored information (ESI)

• ften predominates these days, including in

employment discrimination cases. Once a claim is reasonably anticipated, the company has an obligation to institute a “litigation hold,” which will prevent the destruction of relevant ESI.

2

Email as an envelope

• Email is structured

data, with fields for “to,” “from,” “cc,” “subject,” “body.”

• Think of email as an

envelope.

• As with any other

piece of mail, it’s generally not the envelope, but what’s inside that matters.

3

The essential problem with email

• It’s used to communicate information with
• nly immediate and temporary value:
• Off the cuff reactions / remarks, efforts to obtain

availability for meetings, etc.

• It’s used to communicate information with

lasting value, that is probably part of the personnel file and that must or should be retained for various reasons:

• Reimbursement requests, personnel related

documentation (coaching, warning, evaluation), accommodation requests, etc.

4

Catch 22

5

• Save everything and
• It’s expensive;
• It’s unwieldly -- there’s an overwhelming

amount of data to sort through to find what you’re looking for or respond to discovery requests; and

• The snarky email from supervisor to

manager about employee’s intermittent FMLA will live forever.

• Delete everything and risk spoliation /

inability to defend yourself in litigation.

Email retention practices

Companies’ policies / practices range, based

• n industry and

company culture:

• Emails retained forever

(back up tapes or cloud);

• Emails automatically

deleted after X years;

• Emails automatically

deleted from sent and delete folders after 90 days.

6

Turn on a dime: preservation

• You must quickly stop the routine

destruction of electronic records:

• When on notice of a claim;
• When a key employee departs and you may

need access to his/ her emails;

• Any time failing to take action will result in

the inability to retrieve information you are legally required to preserve or need to be able to access in the future.

7

If you don’t know, find out:

• When, if ever, are emails auto-deleted in

your organization?

• How often are back-ups created and how

long are they retained? Are they over- written at some point?

• What are the procedures for handling hard-

drives and email accounts of departed employees?

• How do you go about stopping auto-deletion,

preventing a back up tape from being

• verwritten, etc.?

8

Creating electronic records

• Information with ongoing value should be

stored outside of email, where possible.

• Performance-related communications,

evaluations, disciplinary documents, etc. should be prepared on separate documents and saved in personnel file, even if personnel file is electronic.

• If the email itself is important, it should

be segregated from the mountain of email with transitory value.

9

Outcome determinative emails

• “Don’t hire her. She’s bad news. She

sued a prior employer and has all kinds of financial problems.”

• “Jane Doe is taking ‘intermittent FMLA’

again today!!!!”

• “So he’s depressed. Why can’t he take a

pill and come to work?”

• “The only other job I can offer is on third

shift “

10

All supervisors should be trained

• Because email constitutes important

evidence in virtually every employment discrimination case.

• Don’t use legal terminology (e.g. concluding

employee A “created a hostile work environment” or engaged in harassment).

• Don’t speculate or guess about facts.
• Beware of hyperbole (and watch

punctuation!!!!).

• Don’t use email when a walk down the hall or

a phone call will do.

11

The Who, What, When, Where and How of Employee Medical Records

Presented by: Allan Muir Pierce Atwood LLP (207) 791-1365 amuir@pierceatwood.com

Obtaining Medical Records

• HIPAA
• FMLA
• Accommodations
• Workers’ Compensation (HIPAA and WC

exceptions)

13

Workers’ Compensation Medical Records

• According to HIPAA: A covered entity may

disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers' compensation or other similar programs, established by law, that provide benefits for work-related injuries

• r illness without regard to fault. 45 CFR

164.512(l)

14

Workers’ Compensation Medical Records (cont.)

15

§208. Medical information

• 1. Certificate of authorization: Authorization

from the employee for release of medical information by health care providers to the employer is not required if the information pertains to treatment of an injury or disease that is claimed to be compensable under this Act.

Keeping & Storing Medical Records

• Limiting access to electronic personnel

records.

• Segregating and possibly further limiting

access to records relating to employees’ disabilities, requests for accommodation, drug tests, etc.

• Ability to turn all personnel records into

paper records/ reports (so employee can review), or ability to review electronically.

• Continue personnel file audits.

16

Keeping & Storing Medical Records (cont.)

• Pre-employment medical exams under ADA:

42 USC 12112(d)(3)(B) reads: Employment entrance examination A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results

• f such examination, if—

(A) all entering employees are subjected to such an examination regardless of disability;

17

Keeping & Storing Medical Records (cont.)

18

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that— (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii)first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information

• n request; and

(C) the results of such examination are used only in accordance with this subchapter.

Keeping & Storing Medical Records (cont.)

• A cautionary tale: Blanco v. BIW (2011)
• Sharing medical records: HIPAA and

business associate agreements

19

The Employer’s Duty to Accommodate Disabilities in the Use of Technology

Presented by: Meg LePage Pierce Atwood LLP (207) 791-1382 mlepage@pierceatwood.com

Examples of Technological Accommodations

• Vision Impairment
• Light-sensing pen with auditory output

– Helps receptionist operate telephone console where employee has difficulty visualizing steady and flashing lights.

• Floor mat with pressure-activated switch

connected to audible signal

– Receptionist recognizes presence of visitor

• Screen magnification software
• Screen reader software

21

Examples of Technological Accommodations

• Mobile telepresence robots controlled by

telecommuter with the click of a mouse or the touch of a screen

• Robots as mobile standalone personal

assistants, performing tasks such as retrieving objects or acting as a guide.

• Exoskeletal robotic aids and provide

laborers with physical assistance on tasks that would otherwise exhaust or even harm unassisted humans.

22

Assistive Technology as Reasonable Accommodation

Noll v. I BM, 7 8 7 F.3 rd 8 9 (2nd Cir. 2015)

• Plaintiff Noll, IBM software engineer who is deaf
• IBM provided Noll with accommodations including onsite and

remote ASL interpreters, communication access rela-time translation (“CART”), internet based real time transcription and video relay services.

• IBM corporate internet includes over 46,000 videos, only

about 100 videos are captioned.

• Noll requested on-screen captioning of certain videos; IBM

provided him with transcripts or ASL interpreters instead.

• Noll demanded that all videos and all audio files have

transcripts at the time they are posted.

• Case filed under ADA and New York state law.

23

Close Captioning

24

Assistive Technology as Reasonable Accommodation

Noll v. I BM , _ _ F.3 rd _ _ (2nd Cir. 2015)

• Trial court granted summary judgment to

IBM, finding no violation

• Second Circuit affirmed, finding that the

accommodations IBM offered were effective, even if not ideal or the accommodation preferred by Noll.

• Second Circuit also held that “the ADA

imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable.”

25

Technology and Telecommuting as Reasonable Accommodation

EEOC v. Ford Motor Company, (6th Cir. 2015)

• Plaintiff Jane Harris was a resale buyer of steel with

irritable bowel syndrome

• Sought job working from home on as-needed basis, up to

4 days a week.

• Ford denied request, deeming regular and predictable on-

site attendance essential to Harris’ “highly interactive job.”

• Ford offered to move her closer to restroom or to look for

jobs that better suited telecommuting.

• Accommodations rejected and Harris filed charge of

discrimination.

• Harris eventually terminated for subpar performance and

high absences.

• EEOC sued, claiming failure to accommodate and

retaliation for filing a charge.

26

Technology and Telecommuting as Reasonable Accommodation

EEOC v. Ford Motor Company, 782 F.3rd 753 (6th Cir. 2015)

“Regular, in person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” “Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. . . Technology has not changed so as to make regular in-person attendance marginal for this job.”

27

Kvorjak v. Maine, 259 F.3rd 48 (1st Cir. 2001)

• Kvorjak was a ME DOL unemployment claims

adjuster with spina bifida, which limited ability to work, causing problems with bowels and bladder, and at times triggering pain.

• His local office closed, Kvorjak transferred to

Bangor; commute expanded from 10 minutes to 90 minutes. Requested ability to telecommute

• Appellate court held telecommuting was not

reasonable accommodation because employee’s functions as educator, trainer and advisor could not be accomplished effectively at home.

28

Digital On-boarding and IRCA/ I-9 Compliance:

Presented by: Tony Derosby Pierce Atwood LLP (207) 791-1343 aderosby@pierceatwood.com

Balancing Risk and Efficiency

Digital generation and retention of Form I-9

• Employers may use software or third-party platforms to

generate and retain Form I-9s, provided:

 The resulting form is legible;  There is no change in the name, content or sequence of the data elements and instructions;  No additional data elements or language is inserted; and  All standards specified in the regulations are met.

30

I-9 electronic generation and storage requirements

• Employers may use paper, digital, or a combination of

paper and digital generation or storage systems, provided the system includes:

 Reasonable controls to ensure integrity, accuracy and reliability;  Reasonable controls designed to prevent and detect the unauthorized

• r accidental creation of, addition to, alteration of, deletion of, or

deterioration of Form I-9s;  An inspection and quality assurance program that regularly evaluates the system and includes periodic checks of digitally stored I-9s;  An indexing system that allows identification and retrieval; and  The ability to reproduce legible and readable paper copies.

31

Changing systems or vendors

• An employer may use one or more digital generation or

storage systems, provided all I-9s remain fully accessible and compliant with the rules.

• An employer may change digital generation or storage

systems as long as each system continues to meet all performance requirements.

• For each digital generation or storage system, the employer

must maintain and make available upon request complete descriptions of the system and procedures relating to use, as well as an indexing system that allows retrieval of relevant documents.

32

E-signatures

• If an employer allows employees to complete Form I-9s

using a digital signature, the system must allow signatories to acknowledge that they read the Form I-9 attestation and attach the e-signature to the form I-9.

• In addition, the e-signature system must:

 Attach the e-signature at the time of the transaction;  Create and preserve a record of the identity of the person producing the signature; and  Upon employee request, provide a printed confirmation of the transaction.

• The employer representative or agent using an e-signature

to complete Section 2 must attest to inspection of original documents.

33

Security

• Employers retaining I-9s digitally must implement an

effective records security program that

 Ensures only authorized personnel have access to the records;  Provides for back-up and recovery to protect against information loss;  Ensures that employees are trained to minimize risk of unauthorized or accidental erasure or alteration; and  Ensures that the system creates a secure and permanent record that establishes date of access, identity, and particular action whenever an individual creates, completes, updates, modifies, alters or corrects a digital record.

34

Responsibilities of employers using E- verify on-boarding applications

• Upgrade software for each new update or new version of E-

verify.

• Update the employer’s E-verify profile within 30 days of the

award date for any new federal contract with a FAR clause.

• Notify DHS immediately if any breach of personal

information occurs.

• Complete the Form I-9 before creating the E-verify case.
• Comply with all DHS information security requirements,

including periodic risk assessments, subordinate plans, security awareness training, periodic testing, corrective processes, COOPs, and appropriate user rules.

• Notify DHS immediately if a breach of personal information
• ccurs.

35

The Aging Workforce and the Digital Divide

Presented by: Jim Erwin Pierce Atwood LLP (207) 791-1237 jerwin@pierceatwood.com

Maine Demographics (2010)

37 20000 40000 60000 80000 100000 120000 <5 5‐9 10‐14 15‐19 20‐24 25‐29 30‐34 35‐39 40‐44 45‐49 50‐54 55‐59 60‐64 65‐69 70‐74 75‐79 80‐84 >84

Age Cohort

Source: US Census

Maine’s population: ≥45 +122,600 <45 -69,100 from 2000 to 2010

‐100,000 ‐50,000 50,000 100,000 150,000 200,000 250,000 <15 15‐24 25‐34 35‐44 45‐54 55‐64 65+ Δ 2000‐10 2010

38

Source: MDOL

Maine’s labor force: ≥45 +94,000 <45 -59,000 from 2000 to 2012

‐100,000 ‐50,000 50,000 100,000 150,000 200,000 16‐19 20‐24 25‐34 35‐44 45‐54 55‐64 65+ Δ 2000‐12 2012

39

Source: MDOL

Size of Maine’s Workforce is Declining

40

Source: MDOL

Workforce Participation is also shrinking

62.00% 63.00% 64.00% 65.00% 66.00% 67.00% 68.00% 69.00% 70.00% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Labor Force Participation Rate 2000‐2012

41

Workforce Participation Continues to Decline

42

Source: MDOL

Hiring to Replace is Exceeding Hiring to Grow By Almost 6:1

43

Source: MDOL

2013 MDOL study:

But, labor participation rate by older workers has increased 1995-2011

44

0% 10% 20% 30% 40% 50% 1995 1999 2003 2007 2011

Change in Maine older worker workforce attachment

2013 MDOL study:

• Aging population
• Aging workforce
• Shrinking labor participation rate
• Almost half of private sector workers > 44
• Many job openings through 2020

45

Possible Reasons for Older Worker Workforce Participation

• Seniority
• Flexibility through lower wage and part-

time jobs

• Insufficient retirement savings
• Improved health/ life expectancy

46

Consequences Shrinking labor force <45 Shrinking workforce participation <55 Increasing labor force ≥45 + Unchanging workforce participation ≥55 Growing percent of workforce that is

• lder

47

+ + + =

What about Millennials?

48

The Other Side of the Divide

49

But not in Maine: Population Cohorts 2014-2024

50

Source: John Dorrer

Conclusion

Both replacement and growth of your workforce will depend on increased participation by older workers

• Delay workforce replacement by keeping

the workers you have

• Add to workforce by attracting new older

workers

51

How will you manage a workforce that’s distributed like this:

52

And looks like this:

53

What does this have to do with technology?

54

Information Technology

Is not just a matter of degree between Boomers and Millennials It’s a matter of how they see and interact with the world

55

Coming to a workplace near you

College students spend 20% of class time focused on smartphones:

• Check phones more than 10 times:
• 2013: 30% ; 2015: 34% .
• 1-10 times:
• 2013: 62% ; 2015: 63% .
• Never:
• 2013: 8% ; 2015: 3% .

56

Coming to a workplace near you

College students use smartphones for non- class purposes:

• Texting: 2013: 86% ; 2015: 87% .
• Checking the time: 2013: 79% ; 2015: 75% .
• Email: 2013: 68% ; 2015: 76% .
• Social networking: 2013: 66% ; 2015: 70% .
• Web surfing: 2013: 38% ; 2015: 42% .
• Games: 2013: 8% ; 2015: 10% .

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Coming to a workplace near you

Research shows that grow dependency on phone tech weakens the intellect: https: / / www.wsj.com/ articles/ how-smartphones- hijack-our-minds-1507307811

• Mere proximity to smartphone correlates with

decline in focus and problem solving

• Mere presence of smartphone takes mental toll

from resisting it

• College students who did not bring smartphones

to class averaged full letter grade higher on test

• f material presented in class – whether those

with phones actually looked at them or not

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Implications for your workplace

Millennials’ higher levels of tech use/ skill – what will these translate to?

• Probably greater ability to perform tech-

dependent tasks

• No greater, and perhaps less, ability to see big

picture implications of data

• Greater productivity in tech intensive

positions

• Perhaps less reliable overall productivity when

tech advantage reduced/ removed

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Implications for your workplace

Can you hire, place, manage and evaluate based on these generalizations? For example:

• Automatically put newly hired younger workers

in more IT-intensive jobs, or train older workers?

• Limit and monitor smartphone use?
• Actively work to prevent age-based cliques?
• Actively manage cross-generational interactions

(face to face versus texting/ social media)

• Will important information be lost in

translation?

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Implications for your workplace

Will your risks start to vary more based on which age cohort your employees belong to?

• Sexual harassment risks lower because boomers

are too old and millennials are conditioned not to?

• Whistleblower risks higher because millennials

have less loyalty, less patience for “paying their dues,” greater sense of entitlement?

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Implications for your workplace

Are you more susceptible to security breaches from millennials…

• Because social media is the new phishery?
• Because millennials can’t stay off social

media?

• Because millennials mix work and personal

lives all day long on smartphones?

Or from Boomers…

• Who may be more easily tricked by

spearfishing and other scams?

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Implications for your workplace

• How can you foster collaboration between
• ld and young successfully?
• How can you leverage strengths of each

for the other without increasing risk of age discrimination claims – by either cohort?

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