Tag: Pokémon Go

Pokémon Go: At (Or Coming To) A Workplace Near You

Pokemon GoIf you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.”

Pokémon Go users have been wreaking havoc, day and night, along the way. They have been loitering near, and trespassing on, private property, so much so in Massachusetts that the Boston police are calling for users to be “vigilant” in avoiding private property and the “obvious inherent dangers” presented by playing Pokémon Go. They have disrupted operations at hallowed sites, such as the 9/11 Memorial and the Holocaust Museum. One even interrupted a live weather report. Users have used the app to lure and then rob other, unsuspecting users. One gamer ran his car into a tree while playing the app. Another was hit by a car trying to cross a public highway while playing the app. They have even fallen off a 75 foot-high cliff while playing the app.

Employers are not immune from the Pokémon Go fun. They have been – or soon will be – affected not only as property owners but also as managers of their employees.

Employer as Property Owner

As legal bloggers have noted, Pokémon Go challenges the traditional paradigm for legal property rights. It blurs the lines between reality and augmented reality, raising a number of interesting legal questions in the process. Does placing a Pokémon on private property without permission affect a property owner’s common law right to exclusive ownership of his property? Are Nintendo/Niantic potentially liable for placing characters on private property? Does the presence of virtual Pokémon on a property create an attractive nuisance that could create liability for the owner in the event a child-user injures himself on the property? If so, how would the property owner abate the nuisance? Can the state preclude users from playing Pokémon Go on public property consistent with the First Amendment? The answers to these questions are unclear.

What is clear, however, is a property owner’s right to exclude others from his property under West Virginia law. A property owner generally has the right to exclude other persons from his property, but there are exceptions to this rule. For example, if the property is a place of public accommodation, the property owner may not exclude persons based on their protected status, e.g., race, sex, religion, disability, or national origin. Generally speaking, however, property owners could legally exclude Pokémon Go users from their premises. To wit, in the case of a trespasser, a property owner could seek monetary damages for any damages caused by a trespass, even if such damages are only nominal.

A property owner’s obligation to keep his property safe is also clear. In the case of an invited person, the property owner must exercise reasonable care to protect the invited person from anticipated/foreseeable hazards. In the case of a trespasser, such as a wandering Pokémon Go user, the property owner need only refrain from willfully or wantonly injuring the trespasser to escape liability.

Pokémon Go isn’t all bad from a property owner’s perspective, however. For the right property/business owner, Pokémon Go could be a very useful marketing tool. Just Google “6 Ways To Use Pokémon Go in Your Local Marketing Campaign” to learn how. One New York Pizzeria spent just ten dollars to have a dozen Pokémon lured to its store and saw a 75% increase in their business. How’s that for return on investment?

Employer as Manager

Pokémon Go also raises several concerns for employers as managers. Several of these concerns are obvious. The foremost of these concerns may be workplace safety. In a little more than a week, Pokémon Go users have shown just how dangerous the app can be. Think about what could happen if you added a distracted user to the existing hazards in your workplace. Disaster. In addition, there is the age-old concern of vicarious liability, especially for employers who have employees out on the road. Your mobile device policy should preclude employees from using a mobile device while driving, if it doesn’t already. West Virginia law makes it unlawful to use your phone while operating a motor vehicle on a public road.

Further, Pokémon Go is yet another appealing fad, much like March Madness, that threatens to bring your workforce to a halt while on the clock, particularly if you employ groups of Millennials or Gen Zers. You must set appropriate boundaries and outline clear expectations with your employees, especially where you are relying on broad language in your company handbook. If you need a “catchy” sign to get your employees’ attention, one human resource manager has got you covered:

pokemon forbidden

Otherwise, revisit your personnel policies and update them as needed to mitigate the potential employment carnage that could result from Pokémon Go. At bare minimum, no Pokémon hunts in the bathroom!

There are at least a couple of hidden concerns with Pokémon Go too. For one, users participate on the Pokémon Go program with their phone’s camera and will soon, if they do not already, have the option of recording or even live streaming their Pokémon Go gameplay. That is cause for concern where employees are permitted to play Pokémon Go on breaks in the workplace. In their quest to capture Pokémon “living” around the office, they may record or stream unsuspecting coworkers, or worse, confidential company information. This creates one more avenue for workplace conflict among employees and raises security concerns for private company information.

For another, Pokémon Go may be a cyber-security concern for company’s using Google products, such as Chrome, Gmail, and Google drive. When the app first debuted, it requested “full access” to the user’s Google account, which meant that Nintendo and/or its partner, Niantic, could not only review your email, your Google docs, Google photos, your location history, your search history, but also, modify all that content, and even send emails as the user of your Gmail account! For users who signed up with a company-related Google account, Niantic was functionally a business partner. It appears that recent outcry has led the Pokémon Go creators to modify the permissions required to download the app. It will be interesting to see whether this change is enough to quell the public outcry. Either way, the initial cyber-security scare is a reminder that employers should remain vigilant in maintaining the wall between work and play with employees that have been granted a company-sanctioned mobile device.

What You Should Do

Pokémon Go is all the rage and promises to be for your employees soon, if it isn’t already. Regardless of whether the app catches on at your workplace, go through the exercise of reviewing your mobile device and social media policies. Are they inclusive of augmented reality apps? If necessary, update them to ensure that they are clear on the use, non-use, or limited use of augmented reality apps like Pokémon Go at your workplace. But don’t stop there. Review your policies with your employees, even if you don’t make any changes. Make sure that employees are aware of the boundaries for augmented reality apps at the office.

ARTICLE BY Benjamin W. Mounts of Steptoe & Johnson PLLC
© Steptoe & Johnson PLLC. All Rights Reserved.

Location Data Gathering Under Europe’s New Privacy Laws

location dataThe rise in popularity of apps and services that use location data (technology that pinpoints a consumer’s location automatically), like the smash-hit Pokémon Go, have EU privacy regulators calling on companies to ‘mind the gap.’ The much-anticipated General Data Protection Regulations (the “GDPR), as well as other EU privacy laws, aim to tighten up the rules for obtaining consent from consumers about what data they are sharing and to restrict how companies can use the data they are mining from consumers. There has been much speculation about how these new regulations, not directives, coupled with a much higher potential for fines, will impact U.S. companies that operate or plan to operate in the EU. Those using location data in apps and for passive tracking should pay close attention to EU regulators as GDPR implementation draws near.

Why are EU regulators particularly concerned about location data?

Location-specific data can reveal very specific and intimate details about a person, where they go, what establishments they frequent and what their habits or routines are. Some location-specific data garners heightened protections, such as where and how often a person obtains medical care or where a person attends religious services.

In the U.S., consumers typically agree to generalized privacy policies by clicking a box prior to purchase, download or use of a new product or service. But the new EU regulations may require more informed notice and consent be obtained for each individual use of the data that a company acquires. For example, a traffic app may collect location data to offer geographically-focused traffic reports and then also use that data to better target advertisements to the consumer, a so-called “secondary use” of the data.

The secondary use is what is concerning to EU regulators. They want to give citizens back control over their personal data, which means meaningfully and fully informing them of how and when it is used. For example, personal data can only be gathered for legitimate purposes, meaning companies should not continue to collect location data beyond what is necessary to support the functionality of their business model; also additional consent would need to be obtained each time the company wants to re-purpose or re-analyze the data they have collected. This puts an affirmative obligation on companies to know if, when and how their partners are using consumer data and to make sure such use has been consented to by the consumer.

What should a company do that collects location data in the EU? 

  1. Consumers should be clearly informed about what location information is being gathered and how it will be used, this does not just mean the primary use of the data, but any ancillary uses such as to target advertisements, etc.;

  2. Consumers should be given the opportunity to decline to have their data collected, or to be able to “opt-out” of any of the primary or secondary uses of their data;

  3. Companies need to put a mechanism in place to make consumers aware if the company’s data collection policies change, for example, a company may not have a secondary use for the data now, but in 2 years it plans on packaging and reselling that data to an aggregator; and

  4. Companies must have agreements in place with their partners in the “business ecosystem” to ensure their partners are adhering to the data collection permissions that the company has obtained.

ARTICLE BY Kathryn T. Allen of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

Pokémon Go – Staying Ahead of Game and Avoiding Unexpected HIPAA Risks

HIPAA RisksIt was inevitable – Pokémon Go fever has swept the nation, and now little cartoon creatures have found their way into your health care facility.

Wait, what!?

Yes, you read that right, those pesky (or beloved, depending on your point of view) creatures are popping up literally everywhere, and unfortunately hospitals and other health care facilities are no exception. As a result, in addition to keeping up with the various advances in mobile technology related to health care and patient management, health care facilities across the country must now add keeping up with virtual and augmented reality to their to-do lists.

So why should this matter to your health care facility?

Currently, industry trends suggest that hospitals and other health care facilities are taking two divergent views when it comes to this new frontier – (a) asking to be taken off the “map” (i.e., having Pokémon removed from their property), or (b) embracing the game, as it motivates the young (and old) to be active. While the latter could be tempting – and for some facilities with proper controls it could be successful – for most, we recommend taking whatever steps possible to prohibit game play within your health care facility.

Regardless of the road taken by your facility, there are a few key considerations to keep in mind when evaluating potential HIPAA risks related to virtual and augmented reality games, which are only likely to grow substantially in number in the future.

How do Pokémon Go and augmented reality games work?

On first glance, this specific game (which is fairly primitive as augmented reality) doesn’t appear problematic from a HIPAA perspective. However, there are some hidden risks. The Pokémon game’s functionality allows for a user to switch between a virtual map and camera mode which literally shows the Pokémon in the world around the player. The images seen on the player’s phone do not appear to be saved or shared automatically – however, the mobile application does offer the option of letting you take a photo of what you see from within the app. In a world dominated by social media, this is where the problem arises.

Pokémon Go and other augmented realty games allow a player to engage in a virtual game which takes place in the real world around them. Pokémon Go players are motivated to take photos of their surroundings and share them with third parties and on social media. In a health care environment, this could easily result in a player – whether patient, employee or third-party gamesman – inadvertently sharing protected health information (PHI) with all of his or her followers in as little as four clicks from taking a screenshot.

Many hospitals are already dealing with the unintended consequences of individuals playing Pokémon Go and wandering into areas containing sensitive information. Even if photographs are not taken, the mere presence of individuals who are only on premises for the purpose of playing a game heightens potential information privacy and security risks.

What is this picture worth?

Hospitals have learned the hard way the high cost of a HIPAA violation. In April of this year the Department of Health and Human Services, Office for Civil Rights (OCR) reached a $2.2 Million settlement with New York Presbyterian Hospital for the filming of “NY Med” on the premises, which resulted in the unauthorized sharing of two patients’ images. OCR also determined that the hospital failed to safeguard health information when it offered the film crew access to an environment where PHI could not be effectively protected.

OCR is likely to follow the same logic in the context of augmented reality games and the potential exposure of PHI to unauthorized parties. Having Pokémon Go players on hospital premises – including patients, visitors, employees and, most especially, those present solely for the purpose of playing the game – could lead to unnecessary HIPAA risks.

Best practices for Pokémon Go and its successors:

  • Take yourself off the “map,” but remember this is not where the story ends: To alleviate the a number of risks, you can, of course, submit an online request to Niantic Labs – the creator of Pokémon Go – to be removed as an in-game location. However, this step alone will not be sufficient to end all possible risks related to Pokémon Go, and the universe of augmented realty that could pop up next. It is also notable the removal process to be a stop has proven lengthy, therefore it would be advisable to also take additional steps regarding your stance on Pokémon Go and augmented realty games. To speed up the process, consider writing a formal demand – above and beyond the online system – to have your coordinates removed from game play.

  • Determine your stance on patient play: Aside from hospital policies on visitor and patient cell phone use, determine if your establishment wants to promote patient use of Pokémon Go. Many facilities are finding Pokémon Go to be a valuable tool in promoting exercise and activity – especially post procedures. If your hospital wants to take that approach – consider limited play to “Pokémon Zones” where PHI is less accessible and adequately protected. However, keep in mind that significant risks remain related to permitted access to PHI to unauthorized individuals.

  • Determine if health care providers and hospital staff should be prohibited from playing: Reevaluate your social media and bring-your-own-device policies to determine if augmented reality games such as Pokémon Go need to be specifically addressed. The player base of Pokémon Go appears to be growing exponentially, and it is highly unlikely that facilities’ employees are not among those playing or considering playing. While taking photographs is often prohibited in hospital settings, make sure the policy is clear that the prohibition applies to photos in the augmented reality space. Take the opportunity to clarify and reiterate acceptable social media practices. Also, if your hospital is creating “Pokémon Zones,” stress to health care providers and staff that this applies to them as well.

While Pokémon Go took over the scene almost literally overnight, this is just a glimpse of what the future holds. As augmented reality mobile applications and games become even more popular, and more immersive, these issues are bound to come up again and reinvent themselves in the form of new challenges. Now is the time to determine your organization’s policy on augmented reality and revisit social media and BYOD policies. Pokémon Go may or may not be here to stay – but it is definitely not one of a kind.

ARTICLE BY Mita K. Lakhia of Drinker Biddle & Reath LLP
©2016 Drinker Biddle & Reath LLP. All Rights Reserved

Pokémon GO – Next Stop: Regulation & Litigation

pokemon go litigationAs everyone is aware, the Pokémon GO craze has taken the world by storm in the past month. Reports estimate there have been over 75 million downloads of the digital game since the program became available on July 6.  Apple has not issued any concrete numbers, but has confirmed that it was the most downloaded app ever in its first week of availability.

When the game was first offered, users were required to grant permission not only to use a player’s smartphone camera and location data but also to gain full access to the user’s Google accounts — including email, calendars, photos, stored documents and any other data associated with the login. The game’s creator, Niantic, responded to a public outcry – including a letter from Minnesota Senator Al Franken – stating that the expansive permission requests were “erroneous” and that Pokémon GO did not use anything from players’ accounts other than basic Google profile information.  The company has since issued a fix to reduce access only to users’ basic Google account profile information.

As is often the case, remarkable success naturally attracts critics who take aim. In a letter dated July 22, 2016, the Electronic Privacy Information Center (EPIC) wrote to the Federal Trade Commission (FTC) requesting government oversight on Niantic’s data collection practices. EPIC is a non-profit public interest research center in Washington, D.C., focusing public attention on privacy and civil liberties issues.

Niantic’s Privacy Policy

EPIC’s letter highlighted a number of alleged issues with Niantic’s privacy policy:

  • Niantic does not explain the scope of information gathered from Google profiles or why this is necessary to the function of the Pokémon GO app.

  • Niantic collects users’ precise location information through “cell/mobile tower triangulation, wifi triangulation, and/or GPS.” The Company’s Privacy Policy states Niantic will “store” location information and “some of that location information, along with your … user name, may be shared through the App.” The Privacy Policy does not indicate any limitations on how long Niantic will retain location data or explain how indefinite retention of location data is necessary to the functionality of the Pokémon GO app.

  • With Pokémon GO, Niantic has access to users’ mobile device camera. The Terms of Service for Pokémon GO grant Niantic a “nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license” to “User Content.” The Terms do not define “User Content” or specify whether this includes photos taken through the in-app camera function.

  • The Pokémon GO Privacy Policy grants Niantic wide latitude to disclose user data to “third-party service providers,” “third parties,” and “to government or law enforcement officials or private parties as [Niantic], in [its] sole discretion, believe necessary or appropriate.” Niantic also deems user data, including personally identifiable information, to be a “business asset” that it can transfer to a third party in the event the company is sold. This issue has been identified as a particular concern to another non-profit organization – Common Sense Media, an independent non-profit organization focusing on children and technology. According to Common Sense Media, location information and history of children should not be considered a “business asset.”

EPIC’s Request to the FTC

Based on the issues highlighted above, EPIC requested that the FTC use its authority to regulate unfair competition under the Federal Trade Commission Act (15 U.S.C. § 45) to prohibit practices by Niantic and other similar apps that fail to conform with FTC’s Fair Information Practices and the principles set forth in The White House 2012 report, “Consumer Data Privacy In A Networked World.”

According to EPIC, Niantic’s unlimited collection and indefinite retention of detailed location data, violates 15 U.S.C. § 45(n) because it is “likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”

EPIC also contends that the unlimited collection and indefinite retention of detailed location data violate the data minimization requirements under the Children’s Online Privacy Protection Act (COPPA), which requires providers to “retain personal information collected online from a child for only as long as is reasonably necessary to fulfill the purpose for which the information was collected.” 16 C.F.R. § 312.10.

Private Lawsuit Filed Against Niantic

Subsequently, a Pokémon GO user has filed suit in Florida State Court alleging that the terms of service and privacy policy are deceptive and unfair, which violates the Florida Deceptive and Unfair Trade Practices Act. Beckman v. Niantic Inc., case number 50-2016-CA-008330, Fifteenth Judicial Circuit for Palm Beach County, Florida.

Practice Pointer

The issue of consumer privacy continues to garner significant attention. Whether you are an app developer or any other company that collects and retains personal information, it is time to review your applicable policies and take appropriate steps to ensure that your company is not the subject of government agency inquiry, litigation, or a data breach.

For employers whose employees may be bumping into each other in the hallway while playing the game, consideration should be given to ban or otherwise regulate employee involvement. Certainly a drop in productively is a concern. However, even if accessing the game during work time is barred, employers should be concerned about the potential compromise to proprietary and confidential information that could occur as the result of data breaches or through counterfeit games that are designed to allow hackers access to your protected information.

ARTICLE BY Jeffrey M. Schlossberg of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Executive Incentive Pay, Race Discrimination, Pokémon Go, Commercial Non-Competes: Employment Law This Week – August 1, 2016 [VIDEO]

Executive Incentive PayWe invite you to view Employment Law This Week – a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work.

This week’s stories include . . .

(1) Chamber: Executive Incentive Pay Rule Could Stunt Growth

Our top story: The U.S. Chamber of Commerce claims that the new executive incentive pay rule could stunt economic growth. The proposed rule lays out a tiering system for regulating bonus pay for bank executives and other employees in the financial sector. The Chamber’s 26-page letter argues that the rule could deter the best minds from entering the financial sector and discourage economic growth and job creation. The FDIC has said that the letter will be taken into account during the review process.

(2) Eighth Circuit Rules for Employer in Race Discrimination Suit

The U.S. Court of Appeals for the Eighth Circuit upholds an employer’s win in a race discrimination suit. An African-American employee of medical technology company Siemens was terminated as part of a reduction in force. The employee alleged that his selection was race-based, and he provided evidence of racial discrimination by his direct supervisor. The plaintiff claimed that poor evaluations by that supervisor “duped” the service director into firing him. The court found that the supervisor who wrote the evaluations did not know about the workforce reductions and, therefore, could not have intentionally triggered a discriminatory termination.

(3) Pokémon Go Sparks Privacy Concerns

Pokémon Go creates privacy concerns for employers. The first mainstream augmented reality game is sweeping the nation, and the game never stops, even during work hours. Despite a recent update to the game that reduces its access to players’ Google accounts, Pokémon Go’s data collection practices are under fire from privacy advocates. This week, the Electronic Privacy Information Center joined the fray, calling for the Federal Trade Commission to investigate security risks associated with the game. In light of the popularity of the game, employers should consider adding more detail to their policies about how and where business mobile devices can be used.

(4) Michigan’s High Court Changes Standard for Commercial Non-Competes

The “rule of reason” standard applies to commercial non-competes in Michigan, the state’s highest court says. Innovation Ventures contracted with a manufacturing plant to produce and package the “5-Hour ENERGY” drink. After the relationship was terminated, the plant began to produce competing energy drinks. Innovation Ventures argued that this action violated a non-compete clause in its termination agreement. Lower courts found that the clause was unenforceable under a provision in the Michigan Antitrust Reform Act (MARA). On appeal, the Michigan Supreme Court remanded the case, ruling that the MARA provision applies only to non-competes between employers and employees and that the federal “rule of reason” standard should be applied to commercial non-competes in Michigan.

(5) Tip of the Week

Ariel Merkrebs-Finkelstein, Director of Human Resources at HelloFresh, is here with some advice on best practices for developing company culture.

“It’s important for you to establish a strong company culture within your organization, because it will help you attract and retain top talent. One thing you can do is call each other a ‘family’ or a ‘team,’ rather than coworkers or colleagues. This will help you break down the barriers and facilitate conversations more easily. . . . Create opportunities for interacting with one another outside of the formal landscape of the office. This might include something like exercise classes, interactive games like ‘Escape the Room,’ or even just a picnic in a nearby park. . . . I also recommend that you recognize your employees. It’s a really great way to make them feel valued, and it’s free. So get creative.”

ARTICLE BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

IFrame©2016 Epstein Becker & Green, P.C. All rights reserved.

Pokémon Go in the Workplace: Oh Look There’s a Pikachu!

Did you know that the world is now inhabited by creatures called Pokémon?  (Or maybe they’ve always been there?)  Some run across the plains; others fly through the skies; and some live in the mountains….and some, yes, some, are located right in your workplace.

Through the magic of downloading Pokémon Go to your smartphone, you too can see these creatures and catch them for some apparently critical scientific testing.

Workplace, Pokémon GoEmployers not familiar with Pikachu, Charizard, and Lucario can rest assured – your employees are.  In less than one week,Pokémon Go became the most downloaded smartphone videogame ever, and employers are clamoring for advice on how to deal with a workforce that already seems sufficiently and consistently distracted.

While employers may be used to seeing brief levels of high distraction during community events like March Madness, uncertainly surrounds this new obsession.  And an obsession it seems to be: sometimes when you look around Manhattan, you think you are in the least threatening version of the Walking Dead.  We even heard that someone just opened the first ever Pokémon-friendly hotel in Australia!  And this may only be the beginning as “augmented reality”-based gaming technology will likely improve in the coming years.

So what should employers do in response?

The first thing we’d say is to keep some perspective.  Before you do anything else, make a judgment call over whether you think the Pokémon Go craze will be short-lived – just a temporary blip on the employee-distraction radar, and if you think it will be, consider whether your planned reaction would really amount to an overreaction.  Remember: everyone could not get enough of Angry Birds, Words with Friends, and Candy Crush.  Is this just more of that?  If so, perhaps a quick and friendly preemptive reminder to employees that working time does not mean training your Bulbasaur to fight a Charmelon.  But if you think this is something different; something more serious, then a stronger communication/directive or an outright workplace ban may be in order.

The second thing we’d say is to consider converting this into an employee engagement opportunity.  Determine whether embracing this latest fad rather than suppressing it will pay morale boosting dividends.  There may be tremendous team-building and social engagement opportunities available, given the game’s team-based format.  Further (and we never thought we’d write something like the following, but), consider whether incentivizing your employees to search for imaginary monsters is an effective employee wellness activity.  (See: a more creative version of paying someone to walk 10,000 steps a day.)

Driving, Pokémon GoThird, remind employees to play safely. This picture says it all.  People are playing Pokémon Go while driving, and two men even fell off a 90-foot cliff in San Diego searching for Pokémon! The humorous and not-so-humorous Pokémon-related accident examples grow by the day. There have even been reports of employees leaning out of windows to get better reception and chasing Pokémon critters and nearly falling downstairs.  And problems can and often will arise when employees encroach on another employee’s work space or enter dangerous workplace areas while playing.  Employers therefore, should consider prohibiting their employees from playing the game on company premises or at least restrict it to certain areas and to certain times.

And the risk of an accident becomes even greater when employees operate company vehicles.  Employers should remind employees that while the game creates an augmented reality, they live in plain old regular reality, so if they see an ultra-rare Articuno Pokemon in the center lane of the 405, ignore it and keep driving.  At the same time, it’s not just the game-playing employee who creates the danger; often times, it is the game-playing civilian.  So tell employees, like your delivery drivers, to be on the lookout for individuals not paying attention to their surroundings as they cross streets even if it seems ridiculously obvious that they should know this already.

Pokémon Go, Work, Lastly, remind employees about your electronic use policies’ application toPokémon Go (or scramble to put some in place)!  Within certain parameters, employers have widespread discretion to monitor employees’ internet use on employer-provided computers and devices, to track employees’ data usage on the company’s purchased bandwidth, and to block certain websites and traffic patterns.  And this is no different when it comes to using employer-provided mobile devices where employees play Pokémon Go, or when employees are playing Pokémon Go in workplaces on work time.  Employers therefore, should seize this opportunity to review existing acceptable use policies to ensure that the risks posed by this “phenomenon” are specifically addressed – and if your company does not have an electronic use or acceptable use policy, this is absolutely the time to get one in place.  Some of the more immediate risks (beyond the loss of productivity) that should be addressed, include the following:

  • If using company-owned devices, a download of this app or any related app should be prohibited.  Some of the Pokémon Go-related applications have been proven to contain malware and depending what is on the device, this may be creating a potential data leak (or even data breach) situation.

  • Depending on where employees might be wandering, they are recording what they see while playing Pokémon Go, and could create privacy issues or even create data breaches that may be reportable.

  • Registration using a company-provided email address should be prohibited.  Collection of email addresses ofPokémon Go players have been reported to have been used in “phishing” involving the game and could put company information at risk.

Conclusion

In an age where technological innovation can negatively affect productivity by making it easier for employees to indulge in frivolous distractions (not to mention impact the overall quality of the labor pool when employers mistakenly hire candidates who have merely wandered into an interview in pursuit of an Ivysaur), employers can sometimes overlook the benefits of a tech-savvy workforce and the technology they have at their disposal. While employers should take steps to limit the employee distraction, safety, data breach and privacy-related concerns associated with Pokémon Go, they should also recognize the potential employee engagement opportunity that this novel game presents.

ARTICLE BY Michael S. Arnold, Cynthia J. Larose & Brent Douglas of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.