The Tech Savvy Lawyer by Michael D.J. Eisenberg

June 11, 2024 Episode #90: How Lawyers Can Balance Work and Personal Tech: Insights from Paul Secunda on Privacy and Productivity!

Emerging technologies simplify many aspects of life, but they also make it increasingly challenging to safeguard privacy in both personal and professional settings. As a lawyer, it is essential for you to stay informed about how to protect privacy by utilizing the appropriate tools and equipment. Paul Secunda joined us today to talk about protecting your privacy, building open communication between employer and employee, tech tips to focus on your work, and more.

Paul Secunda is a partner at Walcheske Luzi LLC. He leads the ERISA litigation unit, which focuses on retirement, medical, and disability class action litigation. He also serves as a consultant, testifying expert, and mediator in the fields of employee benefits and workplace law. Paul is a former labor and employment law professor with 18 years of experience at two law schools, focusing on employment law and employee benefits. Throughout his career, Paul has been engaged in litigating, teaching, and writing about workplace law, handling tasks from reviewing employee handbooks to managing complex class action lawsuits and submitting amicus briefs to the Seventh Circuit Court of Appeals and the U.S. Supreme Court. Paul’s expertise spans employee rights and the practical application of technology in both professional and personal contexts.

Join Paul and me as we talk about the following three questions and more!

What are the top three tech tips you would advise any lawyer to maintain a separation from work and personal time?
What are the top three tech rights an employee has when it comes to utilizing a personal tech device for a BYOD firm?
What are your top three tech tips to ensure focus at work, to help prevent necessary work during personal time?

In our conversation, we cover:

[01.28] Tech Setup - Paul’s current tech setup.

[09.00] The Balance – Balancing technology as a small law firm.

[10.00] Tech tips – Paul shares some tech tips for separating personal and professional life.

[11.40] Clients - How to work with overbearing clients?

[13.26] Superiors – Paul explains how you can handle your superiors.

[16.38] Open Communication – The importance of open communication between employer and employee.

[20.06] Tech Rights – Paul explains how employee privacy rights differ significantly between public and private workplaces.

[25.44] Tracking Software – Paul explains why he would advise against letting your employer put tracking software in your computer.

[29.52] Focusing on work – Paul shares three tech tips you can use to focus on your work and prevent working on your personal time.

Resources:

Connect with Paul

LinkedIn - linkedin.com/in/paul-secunda-a17228/
Website - walcheskeluzi.com/

Equipment Mentioned in the Podcast

Fujitsu Scanners - thescannershop.com/fujitsu-scanners/
HP Printers - hp.com/us-en/shop/mdp/printers/laserjet-pro
iPhone 15 Pro - apple.com/iphone-15-pro/
MacBook Air - apple.com/macbook-air/

Software & Services Mentioned in the Podcast

Adobe Acrobat Reader - get.adobe.com/reader/
Clio - clio.com/
Sanebox - sanebox.com/
TurboScan - play.google.com/store/apps/details?id=com.piksoft.turboscan
WordPerfect - wordperfect.com/en/

Transcript

00:00:00] Michael D.J. Eisenberg: Episode 90, Balancing Your Use of Technology Between Your Work and Home with Labor and Employment Lawyer, Paul Secunda.

[00:00:19] Michael D.J. Eisenberg: Paul is a former Labor and Employment Law professor with 18 years of experience at two different law schools specializing in ERISA and Employee Benefits Law. He is now an attorney with Woltersky Luzzi, LLC. Paul's legal career has been devoted to litigating, teaching, and writing about workplace law issues, handling all aspects of the employment relationship, from reviewing employee handbooks and summary plan descriptions, to litigating complex class action cases, and submitting amicus briefs to the Seventh Circuit Court of Appeals and the United States Supreme Court.

[00:00:46] Michael D.J. Eisenberg: Paul caught my attention with his law journal article, The Employee Right to Disconnect, after I come across California's recent Employee Right to Disconnect bill. This bill would require employers to create a written policy guaranteeing California employees the right to disconnect from work communications during non working hours.

[00:01:01] Michael D.J. Eisenberg: Join Paul and me as we discuss how employees, including lawyers, have rights and practical uses of technology in both their workplace and their private lives. Enjoy!

[00:01:09] #Add Read #1: Consider giving us a five star review on Apple podcasts or wherever you get your podcast feeds.

[00:01:09] Michael D.J. Eisenberg: Have you been enjoying the techsavvylore. page podcast? Consider giving us a five star review on Apple podcasts or wherever you get your podcast feeds.

[00:01:21] Michael D.J. Eisenberg: Paul, welcome to the podcast.

[00:01:23] Paul Secunda: Thank you for having me.

[00:01:24] Michael D.J. Eisenberg: I appreciate you being here and to get things started,

[00:01:26] Our Guest's Current Tech Setup!

[00:01:26] Michael D.J. Eisenberg: please tell us what your current tech setup is.

[00:01:28] Paul Secunda: Well, currently I'm working on a MacBook Air, about 11 inch screen and being assisted by the new iPhone 15 pro.

[00:01:37] Michael D.J. Eisenberg: Nice. And is your MacBook Air, is it an M1 chip or an M2, M3, or are we looking at an Intel processor?

[00:01:43] Paul Secunda: This is from 2023, and I believe it's an M2 chip.

[00:01:48] Michael D.J. Eisenberg: Very nice. How do you like the speed?

[00:01:50] Paul Secunda: The speed is much better than my previous iteration from 2019, which was a much slower processor, so I very much appreciate it.

[00:01:59] Michael D.J. Eisenberg: So, I'm guessing that was an Intel chip? That is correct. So you should really notice like a boost.

[00:02:04] Paul Secunda: And when you're working and jamming away at five different things at the same time, it really does make a difference as far as getting stuff done on a timely basis.

[00:02:12] Michael D.J. Eisenberg: How has the battery been on that?

[00:02:14] Paul Secunda: The battery's been okay. I would say I could go about three or four hours. But I'm on a high light and I am meaning I'm, I have a high brightness, I should say, and that seems to drain the battery, but I need that just to see things better, but I'm mostly plugged in most of the day.

[00:02:31] Paul Secunda: So I don't really go without the plug, whether I'm at a deposition or whether even if I'm in the courtroom, I usually find a plug to plug in. So I haven't really had to test it that much. Do

[00:02:43] Michael D.J. Eisenberg: you carry a backup battery with you?

[00:02:44] Paul Secunda: I do not.

[00:02:45] Michael D.J. Eisenberg: But I want to check out the anchor. Product line, they come up some really good backup batteries that are usually fairly light will fit in your suitcase or your briefcase.

[00:02:52] Michael D.J. Eisenberg: I should say,

[00:02:53] Paul Secunda: okay, well, I'm ready right now,

[00:02:55] Michael D.J. Eisenberg: just sort of as an emergency. And if you go like on Amazon or something similar, I'm sure you'll find a deal at some point anchors had like 20 percent off. Here and there, and there's some good options. There's also of course other brands, but I would go with a reliable brand to make sure that the battery is made well, gonna last a while, and also doesn't cause some sort of like back feed, some sort of back charge by accident.

[00:03:17] Paul Secunda: No, that's, that's really much appreciated because needless to say, that can be a lifesaver.

[00:03:21] Michael D.J. Eisenberg: And any other tech that you use?

[00:03:23] Paul Secunda: Well, I, I did mention the phone, but really I'm a fairly lean and mean operator, I guess.

[00:03:29] Michael D.J. Eisenberg: So I have to ask, do you have a printer and do you use it a lot?

[00:03:32] Paul Secunda: I tried to avoid printing out copies.

[00:03:35] Paul Secunda: Can I use an app called TurboScan? In other words, I did take whatever I get in the mail or from others and put it in PDF form almost immediately. I digitize. And thereafter, whether I'm dealing with, let's say, a deposition, a court reporter, or various chambers, I try to stick mostly with PDF files. This is also true with dealing with opposing counsel.

[00:04:01] Paul Secunda: We tend not to send things to each other by snail mail anymore. I send documents in discovery through servers and or digital files.

[00:04:11] Michael D.J. Eisenberg: Do you have a PDF reader of preference?

[00:04:13] Paul Secunda: Adobe Acrobat.

[00:04:14] Michael D.J. Eisenberg: Okay.

[00:04:15] Paul Secunda: Yeah, I use Word, Microsoft Word for my word process.

[00:04:18] Michael D.J. Eisenberg: And you don't use Pages? Apple Pages?

[00:04:21] Paul Secunda: Well, only when it, sometimes I get documents in Pages form.

[00:04:26] Paul Secunda: Really? And so what I'll do, unusual, unusual, but what I'll do is I'll redo the format into Microsoft Word. It's what I'm comfortable operating in.

[00:04:34] Michael D.J. Eisenberg: So I have to ask, the app that you use, when you get a lot of, Documents. I mean, isn't that a little time consuming to have to take a picture page by page by page?

[00:04:43] Paul Secunda: Yeah. If I were to get a lot of documents, like a bundle, we'd feed it to the printer we do have in our office. Okay. And I would put it onto a thumb drive and then put it on my server that way. But if you're dealing with anything, let's say less than 25 pages, which is a lot of my documents, It's very handy.

[00:05:01] Paul Secunda: It's very easy to use and the, the pages that are generated are very accurate and look good.

[00:05:06] Michael D.J. Eisenberg: Yeah. I use the Fujitsu scan snap, which is considered like a staple of any cell loan, small practitioners. It's an ADF on a document feeder that. Takes 50 pages at a time and could really move through a lot of documents.

[00:05:20] Michael D.J. Eisenberg: When I started practice way back when I was dealing with a lot of large VA files, Department of Veterans Affairs files for my clients. And that could be like a thousand, two or three thousand pages. And that would just taking, of course, also back then the iPhones and other smartphones, PDF capture was not as good as it is today.

[00:05:38] Paul Secunda: That is true. And so I guess I should say in talking about PACs, since you've brought up the printer, I am using a Let's see if I can find it here. An HP laser jet pro. You eight zero. Wow. Yeah. So

[00:05:53] Michael D.J. Eisenberg: how many pages can you fit into the scanner of that printer?

[00:05:56] Paul Secunda: I think the feeder is up to 50 pages.

[00:05:58] Michael D.J. Eisenberg: Cool. And you know about inkjet superstore, right?

[00:06:01] Paul Secunda: I do, because we all know that inkjet could drive you into bank.

[00:06:04] Michael D.J. Eisenberg: Although I haven't had to order for them in like a couple of years, because since COVID, everything's really gone, really, really gone digital.

[00:06:12] Paul Secunda: Yeah. And that's what I was trying to say, which is I really don't do unless it's sent to me. I am not one to send other people things by hard copy.

[00:06:22] Paul Secunda: I really do try to avoid it, not just because it's inconvenient, but all that sustainability stuff as well.

[00:06:27] Michael D.J. Eisenberg: Gotcha. Gotcha. I'm with you on that. So you have an HP printer and what you have an all Apple.

[00:06:34] Paul Secunda: No, this is very interesting. I'm the only person in my office who uses Apple, all the other partners that I have, of which there are four other partners on a HP slash Lenovo type of platform.

[00:06:47] Paul Secunda: And so the way we handle that is we use a Clio, which is just a management software interacting with a Google business server, this kind of application.

[00:06:58] Michael D.J. Eisenberg: So you have a Google business account, correct? And why don't you use. Google Docs versus Microsoft Word.

[00:07:04] Paul Secunda: I just am a dinosaur, I guess. I've been in practice for 27 years and I just feel more comfortable.

[00:07:11] Paul Secunda: It's not that I don't use Google Docs. I do. And in fact, some clients prefer to use Google Docs and I've I've certainly I have that capability, especially when we're working on documents together. It can be very, but if I'm writing a brief or if I'm writing other types of documents, I tend to feel just more comfortable in the Microsoft world when we're talking about something like that.

[00:07:35] Michael D.J. Eisenberg: Fair enough. Fair enough. So wait, you're not using WordPerfect.

[00:07:37] Paul Secunda: I'm not using it. It's funny. I started my life using WordPerfect. When I was in college and law school, I was a WordPerfect guy, and somewhere in the late 90s, early 2000s, maybe when I became a law professor, which was in 2002, I started using Microsoft Word and never went back.

[00:07:53] Paul Secunda: So at this point, it's been over two decades I've been on Microsoft Word.

[00:07:57] Michael D.J. Eisenberg: Do you believe that they still make WordPerfect and that some lawyers actually still use WordPerfect because of whatever little, the macros that they made, that they're afraid to start over again, which is amazing.

[00:08:07] Paul Secunda: I have co counsel who use WordPerfect and Needless to say, we've come up with a way of interacting that doesn't get all sorts of codes and other problematic things in our documents.

[00:08:17] Paul Secunda: But yes, there are a few people still out there. They're diehards, I would say.

[00:08:20] Michael D.J. Eisenberg: How well does the conversion work between a WordPerfect document and a Microsoft Word document going back and forth with the file itself?

[00:08:28] Paul Secunda: I would compare it to, have you ever used the converter on like an Adobe and gone to a Microsoft Word document?

[00:08:34] Paul Secunda: Yes. So there are problems, right? You have to go through that document and take out codes and other types of information that is either wrong, or like, for instance, it messes up the footnotes, but you have to then remember the footnotes. So I would say it's very similar. I would say that you run into a lot of the same types of problems between Word Perfect and Word that you see between like Adobe and Word.

[00:08:55] Michael D.J. Eisenberg: I commend you for you guys being able to work through that.

[00:08:58] Paul Secunda: We are a. As a sole practitioner, you will understand that as a very small office, we do a lot of things on our own. We have no secretaries, no administrative assistants, no paralegals. We do our own work, and so when we do it, we try to do it in a way that is most comfortable for us individually.

[00:09:17] Paul Secunda: But also we need to interact as a firm. So we're trying to have a tech balance there. If you will.

[00:09:23] Michael D.J. Eisenberg: Yeah. I used to use open office, but I had a paralegal law clerk who had been with me for a while. And it just became too much for her that ultimately ended up getting Microsoft office just because I wanted to sort of keep the peace.

[00:09:35] Paul Secunda: But people have a lot of, this comes up also in the PowerPoint world. When you're used the Google version or with the spreadsheets, people are very comfortable with Excel. So fine. There's a comfort there for a lot of people, including myself. Yeah. Well, let's get into the questions. Yeah. Okay. Please.

[00:09:53] Q?#1: What are the top three tech tips you would advise any lawyer to maintain a separation from work and personal time?

[00:09:53] Michael D.J. Eisenberg: What are the top three tech tips you would advise any lawyer to maintain a separation from work and personal time?

[00:09:59] Paul Secunda: Well, the first thing is to put down your darn phone, right? I mean, no one can contact you if you're not constantly getting push notifications by text or by email or by some chat feature. Put down your phone, turn it off. It's good for your mental health and it will be very hard for people to reach you.

[00:10:17] Paul Secunda: Now, needless to say, a lot of people are not going to do that because they feel at least in emergency situations that they need to be contacted. Intactable. So if you're going to keep your phone on, which gets into number two, I would tell you to really evaluate what's being asked. And when I say evaluate, I mean, consider the duration of how long it will take to do what's being asked.

[00:10:40] Paul Secunda: If it's something that will take you a minute or two, okay, no big deal. And if you're helping someone out, go do it. But if you're talking about hours and interrupting your sleep, then really, I think you, you need to write back to the person who is writing you and ask them. them the priority and what's involved that requires you to do this kind of after the whistle blows.

[00:11:00] Paul Secunda: And the third thing I would say to you is talk honestly and openly during the work day with your colleagues, whether they be. Your superiors, your people who are at the same level, people who are your subordinates. Have an honest conversation about electronic communications after the day's over. Because I think a lot of people fail to do that, and sometimes there's just a misunderstanding that can be dealt with if done proactively.

[00:11:28] Michael D.J. Eisenberg: Well, how would you handle, say, an overbearing client? I think in the news, we're aware of at least one potential client like that, who expects to have his calls answered. at any time of the day.

[00:11:38] Paul Secunda: Well, I think my same advice holds up. I think even with overbearing or maybe even anxiety laden people, because that's sometimes what you're talking about people who are just nervous and therefore overbearing, having an open, honest conversation at the beginning of that representation.

[00:11:56] Paul Secunda: If you're Ernie or whatever business you're in and you have a client, set expectations. I think expectation setting is something that unfortunately doesn't happen because people are not having these basic conversations maybe the way they were 20, 30 years ago before the dawning of the age of social media.

[00:12:12] Michael D.J. Eisenberg: What's interesting somewhat on the flip side, my day job, I represent veterans before the Department of Veterans Affairs. And one of my former clients called me on a Sunday, and I wasn't very, I wasn't necessarily happy about that. And I let it go to voicemail and I checked the voicemail if I recall this correctly, I believe I checked the voicemail.

[00:12:29] Michael D.J. Eisenberg: I think he left me a voicemail and he was professing suicidal ideation, like eminent suicidal ideation.

[00:12:35] Paul Secunda: And of course, you're not a mental health counselor. So I guess when you should have probably, I mean, I guess you did have to respond and try to get him to the appropriate person.

[00:12:43] Michael D.J. Eisenberg: And that's what I spent a couple hours that night doing.

[00:12:46] Paul Secunda: Well, that's obviously worth it. No one will tell you, you didn't do the right thing. But that's what I was saying in the beginning, if your phone's on, or if you're listening to your voicemail, evaluate it, I mean, needless to say there, there's nothing to evaluate. It's a life and death situation. It's easy.

[00:13:00] Paul Secunda: You have to do what you had to do. But it's also needless to say that most employers who contact. Employees after hours don't do so in life and death situations. It's a matter of just feeling entitled to have your time and your attention even after the workday is over.

[00:13:17] Michael D.J. Eisenberg: So I think you've kind of talked about how attorneys should handle clients.

[00:13:21] Michael D.J. Eisenberg: How about handling their superiors?

[00:13:23] Paul Secunda: Well, delicately, right? I mean, the problem is you have a power imbalance, right? Right. And one of the reasons in the article that I wrote back in 2018, 2019, the right to disconnect that I ended up focusing on occupational safety and health as opposed to wage and hours or autonomy or other bases, which you could make these kind of distinctions is because to me, workplace safety and health is a universal So.

[00:13:51] Paul Secunda: Right and therefore a human right and therefore the idea is that power imbalances between different people in the workplace between bosses and subordinates should matter less or even if the boss doesn't realize then the subordinate has recourse either through Bringing up a regulation if it exists within your state, occupational and safety agency, or federally.

[00:14:13] Paul Secunda: But at least it can be placed within a framework which your boss is hopefully going to at least acknowledge and discuss with you.

[00:14:21] Michael D.J. Eisenberg: So the right to disconnect law that we're That kind of brought you to my attention. The one that came out in California or is coming out in California. I don't think it's passed yet.

[00:14:30] Paul Secunda: No, it's just been introduced recently.

[00:14:32] Michael D.J. Eisenberg: So are there any states that have this law? And what I'm kind of curious to know is if those that do, has any employer or say former employer been sued for violating that law?

[00:14:42] Paul Secunda: So it did come up in New York a year or two ago. I'm not sure that really anywhere. I am not aware of any lawsuits over the right to disconnect.

[00:14:51] Paul Secunda: One of the issues. And you see this with the California law, which has just been introduced by a democratic assemblyman out in California, is that they're trying to figure out how to implement it. Like, so for instance, California has a very stringent labor code that goes well on many states in the country.

[00:15:08] Paul Secunda: And this is, this would be a state based law. But one of the things that relies upon is this wage and hour distinction, where if you're going to work Your work, you should get overtime. If you're going to put the hours in, you should get paid. No one should But the problem with that, of course, is not all workers are created equally under wage and hour law.

[00:15:27] Paul Secunda: You have exempt workers and you have non exempt workers. And the exempt workers we usually refer to as salaried workers and the non exempt workers, you know, are hourly workers. So if you're an hourly worker, great, you work an additional two or three hours, you get an additional two or three hours of pay.

[00:15:42] Paul Secunda: But if you're a salaried worker, and you're being paid a certain amount of year, no matter how many hours you work, and then you're putting over six hours a night extra, well, that can really add up. So I personally am not a fan of the California approach that is being considered right now, which, again, is based on this wage an hour idea, because I think out a number of workers.

[00:16:04] Paul Secunda: I think it makes more sense if you want a universal right to go to the occupational safety and health route.

[00:16:10] Michael D.J. Eisenberg: Oh, interesting.

[00:16:11] Paul Secunda: Yeah.

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[00:16:21] Michael D.J. Eisenberg: Thanks and enjoy.

[00:16:23] Michael D.J. Eisenberg: Well, let's go back to the question, though, because I think you've given us, I think, two answers. One, of course, is turn off your phone or don't have it with you. The second is better screening.

[00:16:33] Paul Secunda: What would be their third? Well, I think the third is honest and open communication. I think if you are, again, it goes back to what we might call the third is expectation setting.

[00:16:43] Paul Secunda: If you never talk to your employer about how you feel about them contacting you at 11pm at night, and then you start doing work at that time for them, don't be surprised when they ask you again a week or two later. Like, you've set that expectation. But on the other hand. It happens in the beginning, or if you can even address it as part of your beginning work with that employer, then it's less likely that the expectations would be misunderstood.

[00:17:09] Paul Secunda: Look, I understand that American workers are suffering a huge power imbalance in the workplace. In this country, More than almost any other country in the world because we adhere to this employment at will flexibility for employers where you can be fired for a good reason, bad reason, no reason at all.

[00:17:27] Paul Secunda: But on the other hand, I also understand that that's why we have laws and that's why if we can get something on the books that deals with the right to disconnect in a universal manner that applies to all employees. Hopefully employers will come over time to respect that kind of right that employees have to that time to themselves

[00:17:47] Michael D.J. Eisenberg: what you don't pulling it back just a little bit more toward tech.

[00:17:51] Michael D.J. Eisenberg: The one thing I'm surprised you haven't mentioned being an Apple user yourself is the focus modes that the Mac OS. IOS provide you, do you use that?

[00:18:00] Paul Secunda: I have tried them in the past. You have purple mode, you have a sleep mode, you have a drive mode or just universal, do not disturb. I'm looking at it right now.

[00:18:09] Paul Secunda: As you can also create your own focus modes.

[00:18:12] Michael D.J. Eisenberg: Oh, you can do a custom one too.

[00:18:13] Paul Secunda: You can set up any custom mode you want. I found it distracting to be honest. I even in the car and the driving mode had been turning on automatically. I have a hands free. Voice only way of responding to, uh, text messages. And I enjoy that.

[00:18:29] Paul Secunda: So I guess what I'm saying is, and maybe we should take a step back. I am not saying that there should be a blanket prohibition against people working after work. There are some people who, maybe like me and maybe like you, are workaholics and enjoy working after work. And they shouldn't be prevented. I don't want to become paternalistic here.

[00:18:48] Paul Secunda: I'm not saying, even if you want to, I know better what you need and therefore you shouldn't do it. What I'm trying to say is, in a world of an imbalanced workplace between the power the employer has and the less power that employees have, there should be some kind of legal intervention, regulatory intervention that provides employees who want to have the right to be left alone when they go home at night.

[00:19:13] Paul Secunda: So for me, and this goes to the Apple's various kind of focuses, I just found it distracting because I do want to interact with people at different times of the day. And even during sleep, I tried that, but then I found that there were people who, like my family, who needed to contact me and, It would have been nice to know if I had gotten up during the middle of the night, that there was something going on.

[00:19:34] Paul Secunda: So I've turned them all off, to be honest. I, I did not enjoy them personally, but I could see how for others, the focus mode would make sense.

[00:19:42] Michael D.J. Eisenberg: Well, the focus mode definitely comes in handy when I'm recording.

[00:19:45] Paul Secunda: Yeah, I can understand.

[00:19:47] Michael D.J. Eisenberg: Last thing I need is dings, alarms, bells and whistles and the phone going off in the middle of a recording.

[00:19:53] Michael D.J. Eisenberg: But let's move on to question number two. Go ahead.

[00:19:55] Q?#2: What Are the Top Three Tech Rights an Employee Has Qhen It Comes to Utilizing a Personal Tech Device for a BYOD Firm?

[00:19:55] Michael D.J. Eisenberg: what are the top three tech rights an employee has when it comes to utilizing a personal tech device for a BYOD firm?

[00:20:01] Paul Secunda: Yeah, I'm going to sound a little bit redundant here, but it's about expectations that in the privacy world. So in employee privacy, first of all, I have to separate the world into two different areas.

[00:20:12] Paul Secunda: One is the public employment world, right? The other. Private employment world. In the public employment world, believe it or not, because the government is your employer, you have constitutional rights. They're not vibrant constitutional rights, but you do have the right under the Fourth Amendment, uh, which is the privacy amendment under the Constitution, and even under the First Amendment, uh, to a certain amount of autonomy and privacy in the public workplace.

[00:20:36] Paul Secunda: Uh, and then you're saying, well, don't I have that in the private workplace? And the answer is, you don't. Definitively, no, you do not. And the problem is there is no state action in the private workplace and therefore under our state action based Constitution, you don't have a right to privacy just because of the constitution to the extent that you have privacy rights in the private workplace They're either granted to you statutorily or by the common law.

[00:20:59] Paul Secunda: So statutorily, there are Now, in a number of states, somewhere between 10 and 15, what we call off duty conduct statutes, and basically off duty conduct statutes say is as long as you're engaged in legal, lawful, recreational activity outside the workplace, your employer has no business seeing you. Now, obviously, this becomes a little gray when you get into certain types of contact.

[00:21:26] Paul Secunda: Maybe using marijuana on your own time, or engaging in certain, let us say, avant garde sexual types of proclivities. So, those have been litigated, and to be honest, the cases are all over the place. In the common law, there is, under the tort restatement, a right to be free from an invasion of privacy. And the invasion of privacy right comes in a lot of different flavors.

[00:21:51] Paul Secunda: It can be akin to a defamation right, where people can't put you in a false light. Or it can be just a matter of autonomy. That your autonomy is sacred and People shouldn't interfere with what you consider your own private affairs. So in that situation, it goes back to what is your legitimate expectation of privacy?

[00:22:10] Paul Secunda: If you're at your employer's brick and mortar business and you're in the bathroom, you have a fairly significant right to privacy, right? There's going to be very little reason that an employer should be spying on you on your bathroom breaks. On the other hand, if you're in your office and you're on your computer and they want to make sure that you're not engaging in Amazon shopping or other inappropriate activities, they can do a basic keystroke surveillance and that is considered acceptable if it's business based.

[00:22:40] Michael D.J. Eisenberg: I want to pause you on that one specifically. So since we are more at a work from home right now and say the employee Perhaps a lawyer is working from home on their computer and they have to be button seat from like 8am to 5pm and they're working on whatever. Does the employer have a right to watch those same keystrokes and or more so put like certain monitoring software in the person's own personal computer?

[00:23:09] Paul Secunda: I would say it depends on the expectations and the workplace policies that are in place. I mean, If you and your employee handbook have an electronic communications policy that says we will be keeping track of what you're doing during the day, we expect that you will only focus on our business during the workday, then that's a re, then, then an employee says, well, I didn't realize they were doing that when they signed an acknowledgement form saying I realized they were doing that.

[00:23:37] Paul Secunda: That's problematic for the employee. A lot of employers, it goes without saying, including law firms, don't have electronic communication policies. Or if they do, they're much more narrow. Don't, don't surf porn. Don't, won't shop. But how about the in between when your kids call you or have to deal with something that's come up during the day that's almost akin to an errand?

[00:23:58] Paul Secunda: That's less clear. And so, What I would say is, in my, I've been an employment lawyer for over 27 years now, and I would tell you, and mostly on the employee side, and I would tell you that, generally speaking, most employers do not have such restrictive workplace policies. If anything, as the employee becomes more sophisticated, has more discretion during the workday, like most attorneys, this isn't a huge issue.

[00:24:25] Paul Secunda: It's more in. Kind of the warehouses, the blue collar workplace where employees are being monitored much more diligently. Take for instance, the Amazon drivers or even people who deliver packages for UPS or Federal Express. Right being very closely, not only because they want to keep track of where the packages are, but they want to make sure that you're not stopping off and getting a beer when you should be delivering the package to Mr and Mrs Jones.

[00:24:53] Paul Secunda: So I really don't think there's a an answer I can give you. I mean, you could see how I kind of. Very lawyerly kind of divided the workplace. And then I said, well, even in the private, you have statutory protections and common law protections. And then even then it depends on what's in your workplace policies and what kind of expectations you've established with your workers,

[00:25:14] Michael D.J. Eisenberg: but would you generally speaking without giving legal advice, would you advise someone who's like, all right, I don't want to specify lawyers, but you advise a lawyer.

[00:25:25] Michael D.J. Eisenberg: Who has a work from home policy to allow their boss to put on their personal computer, some sort of tracking software sites that they look at typing times logged in, et cetera.

[00:25:39] Paul Secunda: Absolutely not. I would push back very hard against that. An unnecessary violation of my privacy and autonomy. And that's because I believe what lawyers do is not so necessarily only within the time bounds of the day.

[00:25:52] Paul Secunda: I think lawyers, because of the discretion and the creativity they bring to their work, tend to do their work at various times of the day. So perhaps the right to disconnect means something different in our industry than it might mean Let's say in a blue collar industry, but I would advise if an employer said to an attorney, a young attorney, Hey, I understand you're going to be working remotely.

[00:26:16] Paul Secunda: Please know that we're tracking you. I would say I'm going to look somewhere else. I don't know many firms that do that, to be honest,

[00:26:23] Michael D.J. Eisenberg: but there was some articles. I remember a couple of years ago during COVID that they were employers were actively tracking some of their employees. And I'm talking about lawyers.

[00:26:33] Paul Secunda: Yeah. I mean, There's an exception to every rule. I think it's, I think first of all, it leads to very low morale and less productivity. So I think it's foolhardy. I think if you're going to have professionals working for you, giving them independence and discretion is part of saying you trust and believe in them, but I'm not the employer and therefore people do all sorts of different things for different reasons.

[00:26:54] Paul Secunda: I'm saying personally, and it's not legal advice. If someone came to me and said, Hey, I'm going to track you. I'd say, okay, well, I'm not working for you because to me, personal privacy and autonomy are important intangibles in my life.

[00:27:09] Michael D.J. Eisenberg: So from the obvious of not looking at porn, not shopping, not looking at information to overthrow the government.

[00:27:16] Michael D.J. Eisenberg: Are there any other tech tips you might give employees when it comes to things they should obviously not do with devices that are BYOD or even if it's the employer's device?

[00:27:28] Paul Secunda: Yeah, there are a lot of employees and actually this was very relevant because last week the Federal Trade Commission came out with a new proposed rule about getting rid of all covenants not to compete.

[00:27:40] Paul Secunda: Needless to say, that will be tied up in litigation for the next two to three years. So any such rule will probably be enjoined until it's worked out by the courts. But needless to say, there are employers who have employees who have sensitive information which they have protect, whether it be through confidentiality provisions.

[00:27:58] Paul Secunda: They can do it through non solicitation clauses or non competition clauses. And so what I would say to employees is again, make sure you understand what information you have that is protectable by your boss. I mean, in the law area, we're not allowed to have covenants, not to compete under our professional rules of conduct, but nevertheless, you are under an obligation under attorney, uh, client privilege and other privileges to keep things.

[00:28:26] Paul Secunda: Confidential under also the model rules of professional conduct. So maybe law is kind of a little unique, but in, in other parts of the workplace, you have to understand that depending on the types of information you have, if you're dealing with pricing information or customer databases or trade secrets, then yeah, you don't want to be kind of dealing with that type of information without Providing some protection.

[00:28:50] Paul Secunda: Let me give you an example in the legal. When I exchange Discovery as a litigator with other law firms, either the other law firm or I don't just send that information attached to an email, almost never. We always use a server which has dual authentication. So we make sure the person getting it is only getting it because they have a user ID and a password.

[00:29:12] Paul Secunda: Plus they didn't have to authenticate. They are who they say they are. So that is the reality of whether you're using Dropbox or a lot of these large law firms these days have their own servers with the capability of sending out large swaths of documents. So. There's an example of where you just don't want to deal with sensitive documents in a way that they can be intercepted or used inappropriately.

[00:29:38] Michael D.J. Eisenberg: Let's move on to our last question. Sure.

[00:29:40] Q?#3: What are Your Top Three Tech Tips to Ensure Focus at Work to Help Prevent Necessary Work During Personal Time?

[00:29:40] Michael D.J. Eisenberg: What are your top three tech tips to ensure focus at work to help prevent necessary work during personal time?

[00:29:46] Paul Secunda: Yeah, well, one we've already discussed, and this is a harder one, which is you can't turn necessarily your phone off, but what you can do is eliminate a lot of those push notifications.

[00:29:56] Paul Secunda: This is from personal experience. Used to have every newspaper and every person possible able to kind of get through my screen and kind of tell me they're looking for me or want to sell me something, tell me about a new news tip. And what I would tell you is go to your notifications, whether you're on an app or another phone and really only limit them to the things that you really need.

[00:30:19] Paul Secunda: And even with. And your text, you can set up VIP lists so that only those people who are most important in your family, your children, your spouse, whatever, can get in contact with you. I've done that increasingly. So that's number one. Number two, it's a matter of, Learning how to screen your text, emails and other information that you're looking at in a efficient manner.

[00:30:44] Paul Secunda: I have, I use an Apple mail, right? And it has kind of a preview where within probably 5 to 10 seconds, I can tell from just when it comes up whether I need to deal with it now. An hour from now, tomorrow, a week from now, and then I categorize stuff that way using that technology. So that's number two. And then number three, I would say it's just a matter of focus, which is kind of funny to say.

[00:31:10] Paul Secunda: I don't mean focus like the Apple tech focus, but you have all this technology coming at you through computers and phones and don't people use the telephones I'm told, but you have to focus. I mean, we are a society of attention. Deficit disorder. And I, I don't mean that cavalierly or in a flip way. I mean that honestly, as a society, we have trouble paying attention.

[00:31:34] Paul Secunda: We're being pulled in a hundred different direction. And so this is where it's very unique to each person's individual circumstance. What allows you to focus for me? I can't have music on. I can't have other like talk radio or talk, whatever, because it's too, I need complete silence, but someone else Might be able to put on their air pods and put on some soft music in the background and that's the way they kind of tune other things out.

[00:31:58] Paul Secunda: So my point is use tech to allow you to focus. That would be my third point.

[00:32:03] Michael D.J. Eisenberg: Well, I'm going to go back and pull a little bit on your last two answers. Your second answer, this is something I want to share. I use a service called SaneBox and it sort of adds onto your email. Are you familiar with it? I'm not.

[00:32:17] Michael D.J. Eisenberg: So SaneBox is a monthly subscription. It's like 10 bucks a month. I think you'd have to double check. And what it does is it allows you to set special rules into your email. And quite frankly, like it works with all, like almost all different email server types, whether it's Gmail, whether it's personal, whether it's this or that or whatever.

[00:32:35] Michael D.J. Eisenberg: And it works in the background, not on your computer, but on a server. And if you put, say, an email, like, a constant solicitation. Right. If you put it in the same black hole box, you'll never see that again. In other words, if they send you another one, you'll never see it again. So, I'm just Throw it in there just to help kind of declutter.

[00:32:53] Paul Secunda: As opposed to unsubscribing from every unwanted piece of spam you get.

[00:32:57] Michael D.J. Eisenberg: Well, the problem with unsubscribing is you're telling them there's a warm body there.

[00:33:02] Paul Secunda: Yeah, and then that gives them more incentive to try to get in contact with you.

[00:33:06] Michael D.J. Eisenberg: Whether it's through that in particular email or perhaps like a different service they may be working with as well.

[00:33:12] Michael D.J. Eisenberg: So it opens you up to more spam email. But it also has some neat tricks to it like saying. Tomorrow, say next week, so that it doesn't stay in your inbox right now, but it goes, disappears for a day or a week or three hours or until 5 p. m. and then it repopulates to help manage. And like, it also, there's some other functions I'm probably not remembering, but I encourage you to take a look at it.

[00:33:36] Michael D.J. Eisenberg: Somewhat of a godsend for me because Lord knows I'm getting more and more. Spam and I no longer answer my own phone because half the calls are not business. Right. Yeah. The other thing I do, you know, you talk about focusing at work and as a small and solo practitioner, you're sort of like the, you wear many hats.

[00:33:55] Michael D.J. Eisenberg: And when I have to focus on writing a brief, what I'll do sometimes. Or often is I will take my laptop and I'll go to a Starbucks or coffee shop and just plant myself there for like an hour and a half or two hours and I can usually pop out some solid writing and I'm not constantly being interrupted by everything else that's going on around here.

[00:34:15] Paul Secunda: That makes a lot of sense too.

[00:34:16] Michael D.J. Eisenberg: And if it's too noisy in there, I just pop in my Apple AirPod Pro Mac to the headphones, and I can drown out most of the noise, but I'm usually pretty good about drowning out noise around.

[00:34:27] Paul Secunda: Yeah, well, that's a good, that's a good skill to have, I have to say.

[00:34:31] Michael D.J. Eisenberg: Yeah, the only thing I can't deal with is screaming children and crashes.

[00:34:36] Paul Secunda: Yeah.

[00:34:37] Michael D.J. Eisenberg: No offense to parents out there.

[00:34:39] Paul Secunda: Yeah, I can't help you with that one, but yeah, I understand.

[00:34:42] Michael D.J. Eisenberg: Excellent. Paul, I wanna thank you for being here.

[00:34:44] Where You Can Find Our Guest!

[00:34:44] Michael D.J. Eisenberg: Please tell us where people can find you.

[00:34:46] Paul Secunda: They can find me online at kunda E-S-E-C-U-N-D-A. Mm-Hmm at zeke luzi.com. It's a difficult Wisconsin name, so I'm gonna spell it.

[00:34:55] Paul Secunda: W-A-L-C-H-E-S-K-E-L-U-Z i.com. That is the name of the law firm I'm at in the Milwaukee, Wisconsin area. And my email and contact information is there. And if you'd like to hear more about the right to disconnect or any other employment law topics, feel free to give me a ring.

[00:35:13] Paul Secunda: I will be sure to have all that in the show notes.

[00:35:15] Paul Secunda: And if there's anything else you'd like to share, please feel free to send it to me before we publish. But again, Paul, I want to thank you for being here.

[00:35:21] Paul Secunda: It's a pleasure, Michael. So nice to talk to you today. Likewise.

[00:35:24] Thank You for Listening and Join Us in Two Weeks for a New Episode!

[00:35:24] Michael D.J. Eisenberg: Thank you for joining me on this episode of the techsavvylawyer. page podcast. Our next episode will be posted in about two weeks.

[00:35:30] Michael D.J. Eisenberg: If you have any ideas about a future episode, please contact me at michaeldj at the techsavvylawyer. page. Have a great day and happy lawyering.

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