What We Can Learn From Hilary’s Email Shenanigans

July 7, 2016 at 9:34 am 2 comments

Hilary Clinton has inspired me.

hillaryThis morning, as I was scrubbing the  home  server I have so I can pick and choose which of my  communications are  private and which  are  worthy of public disclosure,  I realized that her handling of email can be instructive for all of us.

The truth is, that, with smartphones,  it is getting harder and harder to delineate between work communications and private ones.  Ambiguity is a breeding ground for litigation. If you don’t have policies and procedures for dealing with work related emails on personal devices  here  two reasons  why you should:

Violations of the Fair Labor Standards Act:  With the Department of Labor’s decision to increase the minimum salary threshold for a supervisor to be considered non- exempt, credit unions  may well  be faced with situations  where that branch manager who  responds  to  work related emails late into the night is suddenly  a non-exempt  salaried employee.  Anytime she spends responding to that email is time counted against her 40 hour work week and overtime pay.

Appropriate Record retention policies: Of course, no matter how big or small you are you should have a policy that addresses  electronic storage of information; regulators expect them and  If you are ever sued by an employee,  or investigated be an agency,  your credit union is going to expected  to have policies in place explaining what information is stored electronically, how it is stored and for how long.  These policies will vary in size depending on the size, complexity and legal exposure  of your credit union but everyone should have one.  It’s something I would certainly work on with your attorney

A good example of why is  Small v. Univ. Med. Ctr. of S. Nevada, No. 2:13-CV-00298-APG, 2014 WL 4079507, at *5 (D. Nev. Aug. 18, 2014).  The university was sued by non-exempt employees  who claimed that their  work time was not being appropriately credited in violation of the Fair Labor Standards Act.  When they sued  they asked for  the production of  electronically stored information including   any documents and data relating to time worked, labor allocation, and budgeting. The university initially responded that it didn’t  send  workplace requests to private phones and made no effort to access this information   In fact, additional investigation revealed that several custodians were sent work requests on personal phones.  The court concluded that personal phones had to be searched for relevant information.  In addition,  the University was sanctioned for having inadequate electronic storage procedures.

We have been dealing with email for two decades now and the days when you could simply neglect to properly classify these communications  are over.  The blending of personal devices into the workplace is inevitable and you should make sure that you have  policies and procedures in place to demonstrate you are addressing issues raised by their proliferation.

Entry filed under: Compliance, HR, Mortgage Lending. Tags: .

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2 Comments Add your own

  • 1. Lynn Gray  |  July 7, 2016 at 10:37 am

    Henry, do we think there will be a difference between a work device and a personal device?

    • 2. Henry Meier  |  July 7, 2016 at 2:29 pm

      Not unless an organization imposes increasingly unrealistic and stringent restrictions on the use of “work” devices exclusively.


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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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