New Jersey Law Journal October 28, 2014

By Jonathan Bick, Bick is of counsel at Brach Eichler in Roseland, N.J. He is also an adjunct professor at Pace and Rutgers law schools, and the author of "101 Things You Need to Know About Internet Law" (Random House 2000).

America's workplace increasingly involves a virtual office. Many workers spend the bulk of their days working "on" the Internet. The injuries suffered by those so-called virtual workers are similar to workplace injuries suffered by workers in the traditional work place. However, the Internet has broadened the definition of the "workplace," and thus broadened the definition of the workplace for purposes of litigating workplace injuries and changing the nature of evidence of such injuries.

Virtual office transactions employ technology such as computers, cellphones and other Internet access devices to allow employees to work from many locations, and allow workers to participate in transactions that are remote from their traditional office locations. Virtual office meetings can be conducted via teleconferencing and video conferencing, and documents can be transmitted electronically. Traditional workers increasingly engage in virtual worker transactions, as their use of the Internet increases.

From the perspective of a workplace injury litigator, the virtual office presents the issues of what constitutes the "workplace." The workplace location in turn both determines the jurisdiction of legal difficulties and the role of workers' compensation. New Jersey and most other states generally adopted the Occupational Safety and Health Convention Article 3(c) "Workplace" definition, namely "all places where workers need to be or to go by reason of their work and which are under the direct or indirect control of the employer."

Workers' compensation is a form of insurance designed to provide income and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. The law and doctrine of workers' compensation has traditionally been tied to notions of accidents that occur within the time and space restrictions of the "workplace."

The United States leaves the issues of workplace injuries largely in the hands of the various states. This policy has led to fragmented coverage. For example, New York generally allows recovery of benefits for mental injuries, whereas Connecticut's definition of injury does not allow recovery for a claim associated with purely mental phenomena. A few states allow apportionment for preexisting conditions; most do not. There is no uniform approach to injuries within the American workplace, thus the Internet, which introduces ambiguity into the litigation of a workplace injury, may result in forum shopping.

During the early decades of workers' compensation law, the nature of the American workplace was generally associated with property owned by the employer. This meant that many workers' compensation claims could be disposed of without exploring the location and hence the appropriate jurisdiction of the injury. The advent of the virtual office has ushered in the need and expense of expert testimony just to determine which state workers' compensation law applies to an alleged workplace injury, if any.

It should be noted that virtually all jurisdictions do not follow a positional risk rule, thus more than mere presence within the "workplace" at the time of the injury is required to establish compensability. Just as mere presence upon the employer's premises is ordinarily insufficient to support compensability, similarly, simple presence within the home office should similarly be insufficient to support a successful claim.

Where employees are known to work virtually, courts have found that workers' compensation is applicable. In a 2011 unpublished New Jersey case, Renner v. AT&T, 2011 N.J. Super. LEXIS 1668 (June 27, 2011), an AT&T manager was known to work after hours from a virtual office located at her home and, in the midst of working from her virtual office, died. A workers' compensation judge awarded death benefits to the worker's surviving spouse in the face of New Jersey's enhanced causation standard governing cardiovascular injury or death. N.J.S.A. 34:15-7.2. In 2014, the New Jersey Supreme Court ((A-71-11) (068744) argued Jan. 6, 2014; decided July 30, 2014) overruled the workers' compensation judge by finding the cause of death was not sufficiently within control of the employer so as to merit dependency benefits under the state's workers' compensation law.

The court left in place the possibility that virtual workers were sufficiently under the employer's control so as to warrant workers' compensation. However, in the Renner matter, Cathleen Renner's death was not caused by a "work effort or strain involving a substantial condition, event or happening" as required by a 1979 amendment to the Workers' Compensation Act.

The virtual workplace has many permutations. The most technologically elementary virtual workplaces are enabled via telecommuting transactions that allow work-at-home arrangements. The most technologically complex is a virtual meeting where employees from many different jurisdictions gather through avatars in an artificial environment such as Second Life.

Virtual workplace injuries may occur prior to employment. Employment agencies like Manpower use virtual offices to recruit candidates, collect résumés and perform interviews. Internet sites such as Elance use the Internet to connect companies seeking short-term help with workers willing to take on short-term assignments, and then allow the work to be conducted in virtual offices. Traditional employers use virtual offices and related Internet telecommunications applications to allow workers to work remotely.

Virtual workplaces allow remarkable opportunities for workers and employers to meet face-to-face without physical proximity. A virtual office allows workers from various jurisdictions to engage in single transactions that may result in employment discrimination, sexual harassment and injuries which may result in workers' compensation.

Just as in the traditional workplace, solicitations and inappropriate comments transmitted and received in the virtual office environment are the basis of sexual-harassment workplace injuries. However, jurisdictions vary with respect to burden of proof and extent of evidence required with respect to compensatory damages (personal injury, lost wages or health-care expenses), or money from punitive damages (money awarded to the victim in order to punish a company) associated with workplace injuries. Filing a case with more than one agency—both Equal Employment Opportunity Commission (EEOC) and state or local agency—is also an option. They sometimes work together or share information on cases. But the EEOC has a huge backlog and will often refer cases to local agencies or local Federal Employee Program automatically.

A closely related issue is the fact that the potential for sexual harassment, as well as other types of harassment, abound in virtual work. Part of this may be due to the misconception that Internet transactions are anonymous. In fact, due to Internet protocols which require Internet messages to be transmitted by transferring content from server to server, most Internet content is stored at various locations for long periods of time after the original transaction has been terminated. This allows litigators several sources of evidence of the virtual workplace injury.

In Pa. State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court found that sexual harassment by hostile environment must meet the high standard of "severe or pervasive," but the court did not address what constitutes an environment. In particular, the court does not limit said environment to a brick-and-mortar facility. Thus, if a company establishes an Internet site that is accessible only to employees and everyone understands that this is a space set aside for work, then there should be no distinction between sexual harassment via the Internet and sexual harassment that would take place in a brick-and-mortar office building. Just because harassment takes place on the Cloud, unwanted advances and crude sexual content are no less offensive.

Just as in the case of traditional workplace litigation due diligence, litigators should determine if the employer established the same kinds of anti-harassment processes and procedures that are in place in the employer's brick-and-mortar locations. For example, the presence of an effective reporting system establishes an affirmative defense for an employer to a claim for sexual harassment.

Since the United States has comparatively weak protection of privacy rights at work, it is lawful to monitor workers' workplace communications, including phone calls and emails. Videotaping workers is also permitted. Thus, workplace litigators will have a wealth of evidence in virtual work environments, as it is conceivable in a virtual workplace that the employer can record every move, gesture and statement that is made within the virtual world.

Evidence of virtual transactions has taken the form of emails, digital video or audio files, word-processing documents, instant message histories, files saved from virtual meeting programs, Internet browser histories, databases and the contents of computer memory. In short, the electronic trail of a person who has accessed the Internet.

Many courts in the United States have applied the Federal Rules of Evidence to evidence of virtual transactions in a similar way to their treatment of any digital evidence. It should be noted that unlike much digital data evidence of virtual workplace activity, the lack of established standards and procedures is associated with much digital evidence. Like digital evidence, evidence of virtual workplace transaction tends to be difficult to destroy, easily found, modified and duplicated. Evidence of virtual transactions is subject to the Federal Rules of Civil Procedure requiring the preservation and disclosure of electronically stored evidence.

As with any evidence, the proponent of evidence of a virtual transaction must lay the proper foundation. Courts have found evidence of virtual transactions to be computer data, and computer data has been found to be treated as any other record. U.S. v. Vela, 673 F.2d 86, 90 (5th Cir. 1982).

Internet use leaves a discoverable trail, sometimes known as an Internet footprint. As more and more personal information is put online, attorneys are increasingly turning to the Internet to investigate and research what a defendant knew and when he knew it. Such Internet evidence attenuates the resulting litigation difficulties for both workers and employers.

The Federal Rules of Civil Procedure include the phrase "electronically stored information" in Rules 26(a)(1), 33 and 34, to acknowledge that electronically stored information is discoverable. This phrase has been widely interpreted to include any type of information that can be stored electronically.

In the case of litigating workplace injuries in the virtual office, both the worker and the employer may readily show who knew what and when they knew it. Discoverable Internet activity, such as email, website posting and other Internet communication and publishing applications make settlements and reduced trial times more feasible, because they are ample evidence of the virtual office injury and possibly evidence of the failure to remediate it.