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Proactive tech considerations in the era of the virtual workplace

The following column was originally published in The Oklahoman on October 4, 2020.


Hilary Hudson Clifton Web

Hilary Hudson Clifton is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Click photo to visit her attorney profile.

By Phillips Murrah Attorney Hilary H. Clifton

As thousands of workers continue to clock in remotely each day, many businesses are still learning the ins-and-outs of the virtual collaboration platforms their employees are using.

Microsoft Teams, Slack, Google Docs, BlueJeans, Trello, and, of course, the ubiquitous Zoom, are only a few of the programs that have recently evolved from helpful but perhaps underutilized tech tools, to vital aspects of daily operations.

In the rush to adapt to these new realities, however, savvy businesses should be deliberate when selecting and utilizing virtual collaboration tools.

Though only time can play out the range of virtual workplace conduct that might cause headaches for businesses and employers, cautionary tales are emerging. For example, one doctoral student at Stockton University in New Jersey found himself facing potential disciplinary action after using an image of President Trump as his screen background during a class being held via Zoom.

Though his apparent political statement was likely intentional, it’s not difficult to imagine how one might make an inadvertent statement — political or otherwise — via a video conference background.

A controversial book on a bookshelf or a political poster hanging in a home office might become pertinent, for example, in an employee’s suit against a supervisor, or a family photograph of a luxury vacation might raise questions in a collection lawsuit.

In addition, long before the pandemic, businesses have been grappling with managing, storing, and retrieving vast quantities of electronic data.

In the age of telework, the built-in chat functionalities found in many applications allow users to forego traditional email and participate in fast-paced conversation threads that can promote informality and create huge quantities of data that might be mined by opposing parties in litigation.

Video conferencing platforms also often include a “chat” functionality, allowing participants to send private and/or public messages to one another during the course of a meeting, with those chats potentially, and potentially unbeknownst to the participants, becoming part of a memorialized “transcript” following the meeting.

Fortunately, many applications already have built-in features to deal with some of these concerns.

Zoom users can brush up on how to control private “chat” capabilities by visiting the support section of their website. For fans of Microsoft Teams, Microsoft has a page devoted to mining group chats for discoverable content.

To be truly proactive, however, businesses relying heavily on telework should consider implementing an express telework policy that covers the use of video conferencing and other collaboration platforms.

Employers could include policies stating whether video conferences will be recorded, or requiring that employees use a neutral background during business-related conferences (to make marketing lemonade out of pandemic lemons, many companies have created their own branded Zoom backgrounds).

Additionally, having a policy in place that specifies which programs employees are permitted to use for work-related communications can help streamline the retention and retrieval of important data. Though continuing to do business in the midst of Covid-19 can feel like an overwhelming minefield of uncertainties, proactive businesses can nevertheless adapt and thrive by taking control of their virtual workplaces.

Hilary H. Clifton is an attorney at the law firm of Phillips Murrah.

Phillips Murrah announces 61 attorneys named to 2021 Best Lawyers lists

Phillips Murrah is proud to announce that 50 of our attorneys have been named to The Best Lawyers in America© 2021 lists in Oklahoma City and Dallas and 11 attorneys have been named to debut Ones to Watch 2021 list.

2021 Best Lawyers – Lawyers of the Year

Jennifer Ivester Berry – Commercial Finance Law

Michael D. Carter – Insurance Law

Lauren Barghols Hanna – Water Law

Sally A. Hasenfratz – Mergers and Acquisitions

Clayton D. Ketter – Litigation – Bankruptcy

Fred A. Leibrock – Litigation – Real Estate

Jim A. Roth – Energy Regulatory Law

 

The Best Lawyers in America 2021

Jennifer Ivester Berry – Commercial Finance Law; Commercial Transactions / UCC Law; Environmental Law; Real Estate Law

Elizabeth K. Brown – Business Organizations (including LLCs and Partnerships); Energy Law; Litigation – Trusts and Estates; Litigation and Controversy – Tax; Mergers and Acquisitions; Oil and Gas Law; Real Estate Law; Tax Law; Trusts and Estates

Susan E. Bryant – Securities / Capital Markets Regulation; Securities Regulation

John M. Bunting – Commercial Litigation; Insurance Law; Oil and Gas Law

Catherine L. Campbell – Commercial Litigation; Litigation – Labor and Employment

A. Michelle Campney – Commercial Litigation

Michael D. Carter – Insurance Law; Labor Law – Management; Litigation – Labor and Employment; Workers’ Compensation Law – Employers

Rodney L. Cook – Commercial Litigation; Insurance Law; Litigation – Insurance; Product Liability Litigation – Defendants

Cody J. Cooper – Commercial Litigation

C. Eric Davis – Energy Regulatory Law

Bobby Dolatabadi – Corporate Law; Mergers and Acquisitions Law

Joshua L. Edwards – Financial Services Regulation Law; Real Estate Law

Marc Edwards – Administrative / Regulatory Law; Commercial Litigation; Government Relations Practice

Nicholle Jones Edwards – Family Law; Family Law Arbitration

Kayce L. Gisinger – Product Liability Litigation – Defendants

Juston R. Givens – Commercial Litigation; Insurance Law

Mark E. Golman – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Lauren Barghols Hanna – Employment Law – Management; Labor Law – Management; Litigation – Labor and Employment; Water Law

Sally A. Hasenfratz – Commercial Transactions / UCC Law; Construction Law; Land Use and Zoning Law; Mergers and Acquisitions; Real Estate Law; Trusts and Estates

Terry L. Hawkins – Public Finance Law

Heather L. Hintz – Commercial Litigation

Patrick L. Hullum – Commercial Litigation

Clayton D. Ketter – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Financial Services Regulation Law; Litigation – Bankruptcy

Timothy D. Kline – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Commercial Transactions / UCC Law; Litigation – Bankruptcy

Jason M. Kreth – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Gretchen M. Latham– Commercial Litigation

Fred A. Leibrock – Commercial Litigation; Financial Services Regulation Law; Insurance Law; Litigation – Antitrust; Litigation – ERISA; Litigation – Real Estate; Real Estate Law

Candace Williams Lisle – Banking and Finance Law; Commercial Litigation; Financial Services Regulation Law

Mark Lovelace – Banking and Finance Law; Business Organizations (including LLCs and Partnerships); Commercial Transactions / UCC Law; Real Estate Law

Byrona J. Maule – Litigation – Labor and Employment

Melvin R. McVay, Jr. – Banking and Finance Law; Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Financial Services Regulation Law; Insurance Law; Litigation – Banking and Finance; Litigation – Bankruptcy; Litigation – Real Estate

Andrew S. Mildren – Administrative / Regulatory Law; Banking and Finance Law; Government Relations Practice; Real Estate Law

Jennifer L. Miller – Commercial Litigation

Cindy H. Murray – Real Estate Law

Robert O. O’Bannon – Business Organizations (including LLCs and Partnerships); Oil and Gas Law; Private Funds / Hedge Funds Law; Tax Law

Martin G. Ozinga – Commercial Litigation; Entertainment Law – Motion Pictures and Television; Information Technology Law; Litigation – Intellectual Property; Technology Law

Donald A. Pape – Banking and Finance Law; Financial Services Regulation Law

Dawn M. Rahme – Business Organizations (including LLCs and Partnerships; Commercial Transactions / UCC Law; Litigation and Controversy – Tax; Mergers and Acquisitions; Tax Law; Trusts and Estates

Mary Holloway Richard – Health Care Law

Jim A. Roth – Energy Law; Energy Regulatory Law; Environmental Law; Government Relations Practice; Litigation – Regulatory Enforcement (SEC, Telecom, Energy); Natural Resources Law

G. Calvin Sharpe – Insurance Law; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants; Product Liability Litigation – Defendants

Robert N. Sheets – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Commercial Litigation; Litigation – Bankruptcy; Litigation – Land Use and Zoning; Litigation – Real Estate

Ellen K. Spiropoulos – Corporate Law; Mergers and Acquisitions Law; Real Estate Law

D. Craig Story – Business Organizations (including LLCs and Partnerships); Real Estate Law, Trusts and Estates

Kathryn D. Terry – Insurance Law; Labor Law – Management; Litigation – Labor and Employment

Beverly I. Vilardofsky – Mergers and Acquisitions Law

Amy D. White – Commercial Litigation; Product Liability Litigation – Defendants

Lyndon W. Whitmire – Commercial Litigation; Commercial Transactions / UCC Law; Product Liability Litigation – Defendants

Thomas G. Wolfe – Bet-the-Company Litigation; Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Oil and Gas Law; Product Liability Litigation – Defendants

Raymond E. Zschiesche – Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation – Defendants

 

The Best Lawyers in America: Ones to Watch 2021

Oklahoma City:

Justin G. Bates – Commercial Litigation

Hilary Hudson Clifton – Appellate Practice; Commercial Litigation

Jessica N. Cory – Tax Law

Erica K. Halley – Mergers and Acquisitions Law, Real Estate Law

Travis E. Harrison – Mergers and Acquisitions Law; Oil and Gas Law; Real Estate Law

Mark E. Hornbeek – Commercial Litigation

Martin J. Lopez III – Health Care Law

Kendra M. Norman – Mergers and Acquisitions Law; Real Estate Law; Tax Law

Ashley M. Schovanec – Commercial Litigation

Molly E. Tipton – Family Law; Oil and Gas Law

 

Dallas:

Kim Beight Kelly – Product Liability Litigation – Defendants

Employers should examine paid parental leave policies

The notorious absence of any federally mandated paid family leave in the United States was a significant issue during the 2016 presidential election. Recent legislative proposals indicate that the issue will only gain steam through 2020 and beyond. Paid parental leave is not a partisan issue, as demonstrated by legislators on both sides of the aisle introducing bills in 2019, including Marco Rubio and Kirsten Gillibrand.

Phillips Murrah litigation attorney Hillary Clifton discusses holiday legal hazards.

Hilary Hudson Clifton is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Click photo to visit her attorney profile.

With parental leave policies under particular scrutiny, it is a good idea for employers to examine their existing policies. As it looks ever more likely that paid leave will be federally mandated in the not-too-distant future, now might be the right time for employers without a paid leave policy to consider implementing one.

Though some states have passed laws requiring paid parental leave benefits, Oklahoma is not among them, and employers in Oklahoma currently offering paid leave to new parents do so voluntarily. Still, employers could find themselves in legal trouble if their policies impermissibly distinguish between different classes of parents. For example, while it might be tempting to offer a certain period of paid maternity leave to a mother, and a different period of paternity leave to a father, employers must be careful to draft policies that do not discriminate on the basis of sex, sexual orientation, and other potentially protected categories.

Paid parental leave to care for a new child, sometimes referred to as bonding time, should apply equally to all new parents, including biological mothers and fathers, adoptive parents, and same-sex couples. However, with biological mothers requiring medical attention and recovery time related to pregnancy and childbirth, it is not discriminatory to offer biological mothers an additional period of paid leave, provided the policy specifies that such leave is for the mother’s medical/physical needs.

Increasingly, employers around the country are opting for generous parental leave policies to attract and retain qualified employees. In that regard, employers considering a policy that offers a birth mother significant paid leave for recovery but little time for bonding and childcare might consider whether such a policy could encourage fathers or adoptive parents to look elsewhere for job opportunities.

With no federal or state mandate in Oklahoma, there remains room for any employer to adopt a policy in line with its particular needs and preferences. That said, well-intentioned employers should take measures to avoid inadvertent discrimination in their policies.

Hilary H. Clifton is a litigation attorney with the law firm of Phillips Murrah.


Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on July 18, 2019.