LEL Flash | Issue: November-December 2012

FLASH header

Issue: November-December 2012

Tech Corner

Technology and Inclusion in the Workplace

If you did not make it to this year's 6th Annual ABA Labor & Employment Law Conference, you missed your chance to drive a robot. And, at the rate the technology is developing, it may not be long before companies allow robots as a viable telecommuting option for workers unable to be in the office physically, bringing with it a host of legal benefits and new challenges.

Technology was a hot topic at this year's Annual Conference. There were panels that covered the use of technology for employee monitoring; a variety of social media topics; technological tools for the practice of law; electronic investigation tools and privacy limitations; cybercrime issues; Internet-based advertising and promotional methods and limitations; electronic discovery; developing technologies; and many other topics.

Technology was even highlighted during the Conference's thought-provoking Diversity Luncheon, at which Ben Foss spoke about technological and related developments that enable workplaces to more effectively include individuals with non-obvious disabilities. Foss is an inventor, founder of a national non-profit organization, and published author, holds a joint JD/MBA from Stanford (among other degrees), and worked on the White House National Economic Council. He is also severely dyslexic. Foss, who previously spoke at the 2012 ABA National Symposium on Technology in Labor & Employment Law, highlighted the fact that, despite the passage of the Americans with Disabilities Act (ADA) in 1990, the active employment gap between working-age individuals with and those without work-related disabilities has increased over the past 20 years. Striking even closer to home for many were the statistics that Foss discussed about non-obvious disabilities that deter some from entering the workforce and that many others battle in the workplace on a day-to-day basis. Such disabilities may include learning or intellectual disabilities, neurological injuries or disorders, chronic health problems, and psychological conditions.

Electronic networks and new technologies, however, are transforming the ways in which people collaborate and perform work. These advances, a number of which were highlighted at the Annual Conference, can be harnessed not only to increase workplace flexibility and efficiency, but also to address workplace disabilities. For example, Foss highlighted his own invention, the Intel Reader, which allows anyone who has difficulty reading to use the device to magnify and/or "read" text (whether from a book, other device, sign, or any other media) directly to them, in real time. Another panel discussed a new and enhanced telecommuting option--the telepresence robot. For example, imagine a robot as a battery-powered, wheeled device equipped with a video camera, speaker, infrared sensors, and a video screen. When the concept of a telepresence robot was first discussed at the 2012 Technology Symposium, it seemed a conceptual, futuristic option that would likely be impractical and/or prohibitively expensive in most circumstances. However, only months later, a robot was "personally" present at the Annual Conference and Anybots representatives pointed to businesses that are now actively using robots to allow their employees to telecommute--either from home or from another office thousands of miles away--at costs that were lower than the audience expected.

The advent of the telepresence robot--as with all of the technologies discussed at the Annual Conference--brings with it a host of new legal questions that employers, employees, unions, and their lawyers will have to face. For example, how will the availability of such robust telepresence technologies impact employers' accommodation obligations, particularly as these technologies become more affordable? As telepresence technologies allow employees to stay physically present in one state, while performing work at the same time in another, how will state employment laws be applied? What privacy and monitoring implications will be raised by a telepresence robot that may be innocently docked in an employee breakroom? By the same token, what are the privacy and monitoring implications raised by the company-issued laptop or cell phone that the company retains the ability to remotely access and track?

But, for now, Foss encouraged employees to be open about their needs and about ways that their needs can be met. Self-advocacy, he said, together with creativity and open-mindedness, can lead to innovation and development of new, realistic methods of accommodation, and is the most powerful way that individuals can develop a community in which others can accept them. There is nothing that an employer can do to accommodate an employee who struggles in silence with a non-obvious disability. As for employers, Foss recommended that companies develop an office culture that "treats everyone with dignity and respect," and that "supports people with disabilities to achieve full participation."

And, as many Annual Conference panelists agreed, keep a close eye on technology and the law, as both continue to develop rapidly, making it more reasonable--and potentially even necessary--to provide accommodations that may not have even been possible a few years ago.

Heather R. Pruger is an associate with Saul Ewing LLP's Labor and Employment and Employee Benefits Practice Group, and Membership Co-Chair of the ABA Section of Labor & Employment Law's Committee on Technology in the Practice and the Workplace.

Contents

Opening Page

Comments from the Chair

Special Feature

Francis Perkins Award

Flash Co-Chairs:

Jeremy J Glenn, Meckler Bulger et al | Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Amy F. Shulman, Broach & Stulberg LLP

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813