ECN members meet in St. Louis for regional conference

August 2014

by Celeste Blackburn

(August 2014) Members of the Employers Counsel Network (ECN) gathered in St. Louis for a regional meeting in early August 2014. There were 22 attendees from 10 firms, including two who joined the crowd for the first time—Shelley Ericsson of Kansas City, a partner with host firm Armstrong Teasdale, and Courtney Bru of Tulsa, who was in her first week as a member of Oklahoma firm McAfee Taft.

Entertainment included a Thursday night game between the St. Louis Cardinals and the Boston Red Sox at Busch Stadium, won by the home team. On the following morning, the attorneys met at Armstrong Teasdale’s St. Louis office for three informative sessions.

Hacking nightmares

Up first, Armstrong Teasdale attorney Dan Nelson offered a lesson on hackers and how to protect yourself and your company from them. Nelson quickly dispelled the misconception that hackers must have sophisticated computer knowledge. He demonstrated how easy it is for anyone to find instructions on the Internet (many in video form on YouTube) for any number of hacking activities as well as the open source malware available for anyone to download (again, often with detailed instructions). So any disgruntled employee who has a basic knowledge of computers and Google can become his former employer’s hacking nightmare.

Even if a company has no enemies, it can still be the target of hackers, and employees often unwittingly let hackers into the system. Nelson explained the many facets of social engineering hacking, the most common and simple example being the Nigerian Prince phishing e-mail scam, and how hackers can use Trojan horses to infiltrate a system. Education and training on both a personal and company level are the best hacking countermeasures.

The final security issue Nelson addressed is the changing landscape of laws companies must abide by when dealing with technology. Companies that have sensitive customer data need to be aware that the Federal Trade Commission charged a company with deceptive practices for promising customers security for data that got leaked when an unencrypted laptop taken outside the company building was stolen. Nelson also noted that states are enacting security laws that go far beyond federal requirements, and those laws are applied to protect state residents—not just to companies within the state—so a Tennessee company would be subject to California security laws if it has an employee there.

Investigation advice

For the second session, Department of Labor Wage & Hour Division (WHD) investigators Sonia Granados and Carmen Soto-Martinez offered insights on steps employer attorneys can take to make the best of an investigation. Granados spoke about investigations of companies within an enterprise. In that case, employers’ attorneys should be sure they are dealing with the agency’s main office district office (MODO) for the region where the client’s corporate office is located. She noted that the concept of enterprise-wide compliance is very important at the WHD. If one company operating under an enterprise agrees to compliance measures, the other companies under that umbrella are expected to do so as well.

Granados demonstrated how is a great resource for employers and their attorneys, giving a tour of the site’s offerings, including forms, Memorandums of Understanding, and Fact Sheets. Soto-Martinez spoke on immigration visas and noted that very specific criteria must be followed and a small misstep could lead to high penalties (as well as back wages) and even disbarment from participation in the Visa program for the employer.

NLRB turmoil

For the final session, attorneys from three ECN firms—John Hasman of St. Louis (Armstrong Teasdale), John Lovett of Louisville (Frost Brown Todd), and Jay Rector of Wichita (Foulston Siefkin)—teamed up for a discussion about the National Labor Relations Board (NLRB). Addressing the Noel Canning decision that invalidated President Barack Obama’s three recess appointments to the Board, the panel agreed we aren’t likely to see different results come about for cases decided by that Board. But Hasman, a former NLBR attorney, did note that he believes there will be some “nice dissents” to rely on when it is time to argue new cases.

Turning to the topic of quickie, or ambush, elections, Lovett said he believes that employers will lose the 42-day “safety net” for union elections and that clients should be prepared to act much more quickly than they’ve had to in the past. Hasman noted that the intent of the rules, at least partially, is to punt many of the issues previously raised pre-election so they don’t come up until after the election. Rector said the quickie rule could be boiled down to one major point, “making it easier for unions to organize.”

On the hot topic of social media, Lovett noted that policies similar to ones previously approved by the NLRB have come under attack since for ambiguity. He said, “I wouldn’t give a stamp of approval to any social media policy that goes beyond the product, service, or vendors. Anything that relates to workplace or management is of- limits. Helping clients understand the risks of overbroad policies is important.” When the conversation turned to banning social media during work hours, Hasman noted that while a lot of the conversation is basically academic because employees can use their smartphones, a company can justify the decision to block Facebook on its computer servers. If it does so, there is a chance the company will have to explain why Facebook was a problem sometime down the road.

Celeste Blackburn is the Managing Editor of 50 Employment Laws in 50 States, HR Insight, Diversity Insight, and Technology for HR for Business and Legal Resources. She has written about human resources for a variety of publications, including Basic Training for Supervisors and BLRs’ series of White Papers. Before coming to M. Lee Smith Publishers, she was a reporter for The Daily Herald in Columbia, Tennessee, where she focused on business and community features. Celeste earned her bachelor’s degree from David Lipscomb University and a master’s from Middle Tennessee State University. You may contact Celeste at