Has the dot-bust collapse eliminated the legal worries created by new technology? Of course not.
Despite the end of the stock market bubble, American business has, in a short time, made a massive capital investment in high tech gear. Firms must now learn the most profitable and efficient uses of these new tools.
But this process won’t occur only in the IT department. The real tech revolution will be the integration of technology into all of a business’s day to day operations - and the legal issues that inevitably follow.
For example, consider the challenges facing the mainstream personnel department. Firms that never considered going online still have computers and networks, and the skilled employees who keep them running.
Often, those highly paid technicians work long hours. No one can afford to halt operations between 9 and 5 for routine maintenance, or to wait until tomorrow morning to fix a problem that has shut down the company.
But how many firms pay those technicians overtime pay - "time and one-half" - for their long hours, especially at their high rates? Although many simply classify anyone who works with computers as "exempt" from overtime pay, in fact the rules are not so broad.
Strict exemption standards were written to protect manufacturing and service employees against "mandatory" overtime. Not all employees skilled in the care and feeding of computers qualify for the complex "white collar" exemption for salaried executive, administrative and professional employees (and a special 1990 interpretation for computer occupations).
For example, those who merely operate, repair or manufacture computers are not entitled to overtime pay. You can’t simply assume that "computer means no overtime".
Instead, an exempt computer position must satisfy two primary tests. The job must first involve systems design or software engineering, based in most cases on advanced training. Routine programming isn’t enough, and some cases have even required overtime for tech support and help desk personnel. (True supervisors, however, may still qualify for the traditional white collar exemption, rather than as computer experts.)
In addition, the job must pay on a flat-rate salary basis, rather than hourly, without deductions for absences. For example, you can’t dock exempt tech employees by the minute for missing time, or for arriving at work late.
Even firms aware of these issues may still not satisfy the overtime laws. Many private firms award comp time in lieu of overtime, in the good-faith - but mistaken - belief that comp time satisfies overtime pay requirements. (Public employers may use comp time, but not the private sector.)
Easy telecommuting further complicates payroll for non-exempt tech employees. The cheap availability of "always on" Internet connections, and software that allows technicians to fix problems remotely, from home, obliterates mind-numbingly complex rules for measuring "on duty" time and home work.
The HR department’s technology upgrade doesn’t stop with overtime rules. The "privacy storm" of new protection for personal data, particularly health information, has made the personnel file into a lawsuit waiting to happen for firms without privacy procedures.
At the same time, firms cannot avoid high tech privacy issues by remaining in the twentieth century world of paper resumes. By the time one is copied, circulated and read, the best candidates have already been hired - by competitors - through Internet job posting sites.
HR must still make sure that online recruitment satisfies complicated anti-discrimination rules for hiring and firing. For example, an affiliate of one "really big" Net business allegedly forgot about mandatory WARN act layoff notices during a recent cutback. HR must also control email abuse, and satisfy star tech employees’ salary demands (while cash is tight and options no longer mean instant wealth).
Basic noncompete agreements must also be updated. Courts have rejected standard one year limits on working for a competitor because technology makes knowledge and skills obsolete so quickly.
Perhaps the personnel department’s own tech revolution will be finding the time - and overtime - to comply with all these new demands.
Copyright 2001 Stanley P. Jaskiewicz, Esquire
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