Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them
My article, What Hath the Twenty First Century Wrought? Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them, forthcoming in Transactions: Tennessee Journal of Business Law is now available on SSRN.
Here's the abstract.
Employees are using new technologies. They are using GPS, electronic mail, the Internet, cell phones and other handheld devices, blogs, Twitter, texting and social networking sites. They are using new technologies while at the workplace and while away from the workplace, while working and while engaging in personal pursuits. They may be using the technologies appropriately or to the detriment of their employers. Employers are also using new technologies. They are monitoring their employees, both in the workplace and away from it. They too may be doing so appropriately, or they may be doing so in a manner invasive of their employees' privacy or dignity.
Needless to say, the use of these new technologies gives rise to employment disputes that differ in kind from those of times past. Many scholars have written about the failure of the law to keep pace with the workplace changes brought about by new technologies. Many have also written about the failure of the federal and state statutory laws and of the common law to systematically and sensibly resolve employment disputes arising out of the use of new technologies. But one place that disputes arising out of new technologies are being grappled with in a systemic manner, and handled in a relatively sensible manner, is by arbitrators in the union sector.
This article surveys the types of issues being arbitrated, the criteria arbitrators use to decide the cases, and the outcomes of the cases. It builds on and updates my prior work in the area. Section I provides an introduction to the article. Section II provides an overview of my research. Section III addresses the types of cases involving new technologies arising as challenges to discipline for lack of just cause. Section IV addresses the related issue of employer monitoring of employees. Section V focuses on cases involving new technologies that have arisen under provisions of the collective bargaining agreement other than a just cause provision.