As we approach the last quarter of 2020 and the business community begins to plan ahead for 2021, New York employers should be aware of the changes coming to the New York Paid Family Leave (“NYPFL”) program. On January 1, 2021, the amount of employee contributions, the number of weeks of leave and benefits, and the amount of weekly benefits granted under the program are scheduled to increase. This will be the last of three annual increases in weekly benefits.
The NYPFL program, which took effect in 2018, provides partially-paid, job-protected leave for bonding with a new baby, caring ...
Part 6 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Simple in theory. Challenging in practice.
While we all intuitively know that we should stay home when we are feeling unwell, a fall 2019 survey suggests just the opposite—that approximately 90% of workers generally “push through” and come to work anyway. The reality is that employees come to work when they are sick for a myriad of reasons: to stay atop long to-do lists, meet production goals, because they think the business would crumble without them, or that somehow taking a sick day and ...
Updates to USCIS Policy on New Forms, Premium Processing, and Filing Fee Increases Take Effect on October 2, 2020
As previously reported in Epstein Becker Green’s August 2020 Immigration Alert, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will increase filing fees effective October 2, 2020. In line with the announcement, USCIS has updated its Policy Manual and the Federal Register with the following changes:
- USCIS will revise the edition date of certain forms. As a result, any affected form filed on or after October 2, 2020, that does not possess the ...
On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updates to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers (“FAQs”), addressing questions largely focused on return-to-work questions and concerns such as permissible and impermissible inquiries, reasonable accommodation and confidentiality of employee health information.
Notable additions to the FAQs include clarification regarding the types of questions employers may ask as employees ...
Part 5 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
By now, those who have been following this series know the basics. You’ve formulated (or are in the process of formulating) a “return to work” plan, which includes, among other things, implementing policies and guidelines consistent with CDC recommendations (wear masks), as well as other best practices that most of us learned, or should have learned, by the time we were potty-trained (wash your hands), if not by the time we were in elementary school (no touching).
But once businesses ...
As has been true for so many issues arising from the COVID-19 pandemic, growing concerns about safely voting in the 2020 elections are beginning to permeate the workplace, prompting employers nationwide to create or revise policies to address employee apprehensions about voting amidst a pandemic. Time to Vote, a self-described “business-led, nonpartisan coalition that aims to increase voter participation in the U.S. elections,” founded by numerous major companies, reports that, as of August 27, 2020, more than 700 companies, representing about two million workers, have ...
As featured in #WorkforceWednesday: Employers are reevaluating plans after Centers for Disease Control and Prevention (CDC) reversals, and the U.S. Department of Labor (DOL) offers clarification on wage and hour issues related to the pandemic.
New York attorneys could soon have to complete cybersecurity training courses to satisfy their continuing legal education (“CLE”) requirement. The House of Delegates of the New York State Bar Association (“NYSBA”) has approved a report proposing that NYSBA’s Executive Committee recommend to the New York State Continuing Legal Education Board that the biennial CLE requirement be amended to require one credit on cybersecurity. The Committee on Technology and the Legal Profession (the “Committee”), which submitted the report, recognized the mounting ...
Part 4 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
We have said this before, but we will say it again: in the workplace, there should be no touching – ever. The COVID-19 pandemic just provides another reason to follow the advice we give in the anti-harassment context, that employees should maintain distance and not touch others.
No Touching, Ever – Not Even For Handshakes
In almost a long forgotten time, pre-COVID-19, it was a natural tendency for employees to use handshakes, handshakes-plus, and hugs as a way to build rapport and ...
Part 3 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Whether physically in the office or not, regularly washing your hands should already be a routine practice. However, this innate rule is especially important, and recommended by the Center for Disease Control (“CDC”), to help prevent the spread of COVID-19 and to maintain safe, healthy and respectful workplaces.
Wash Your Hands…All the Time
Everyone should already be washing his or her hands – all the time. This is a cardinal hygiene rule that everyone learns in elementary school ...
Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; ...
Featured in #WorkforceWednesday: As employers plan for workers to return to work, utilizing COVID-19 liability waivers is one idea that businesses are thoroughly considering. Attorney Jimmy Oh discusses the risks and effectiveness of these waivers.
Video: YouTube, Vimeo, MP4, Instagram.
Part 2 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Who would have believed that months into this global pandemic, after the innumerable and unspeakable loss to human life, to global economies, and to our own sense of selves and normalcy – that the relatively straightforward issue of whether to wear a mask to curb the spread of this virus would remain such a hot button topic. And yet, here we are.
The overwhelming science – yes, science – reported and confirmed by scientists, physicians, and leading health experts across the globe – is ...
Part 1 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
As Labor Day approaches, with schools reopening (in some form or fashion), and as we approach the end of our collective bandwidth for Zoom meetings, much time and attention has been spent discussing how and when to finally “return to work.”
But in thinking about that seemingly innocuous phrase - “return to work” - employers would be remiss not to take a moment to pause and re-think what that phrase actually means in a post-COVID-world. Is work somewhere that you go? Or is work something ...
As featured in #WorkforceWednesday: As the uncertainty with the COVID-19 pandemic continues, many employers are considering extended or permanent work-from-home (WFH) models. Attorneys Brian G. Cesaratto and Shawndra G. Jones share some tips for employers on cybersecurity and other issues to consider when implementing extended WFH models.
USCIS Will Increase Filing Fees as of October 2, 2020
On July 31, 2020, the U.S. Citizenship and Immigration Service (“USCIS”) announced it will increase filing fees effective October 2, 2020. The fee increases will impact U.S. employers that hire foreign national workers by adding to the cost of sponsoring employment. The increases most applicable to U.S. employers are:
- H-1B sponsorship: Fee raised an additional $95.
- L-1 sponsorship: Fee raised an additional $345.
- O-1 sponsorship: Fee raised an additional $245.
- TN, H-1B1, and E-3 sponsorship: Fee raised an additional $235.
As we previously reported, in 2019, the New York City Commission on Human Rights (“Commission”) provided legal enforcement guidance (“Enforcement Guidance”) advising that workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles” are a form of race discrimination under the New York City Human Rights Law (“NYCHRL”). Now, the Commission is proposing to amend its rules (“Proposed Rule”) to formalize the Enforcement Guidance. The Proposed Rule states that discrimination based on hair “can function as a ...
Philadelphia is making sure employers err on the side of caution when it comes to COVID-19. As of June 26, 2020, Philadelphia-based employees have additional protections from retaliation through the unanimously passed the Essential Workers Protection Act (“EWPA” or “Act”), which prohibits retaliation against any employee who speaks out about, or refuses to work due to, the employer’s non-compliance with Pennsylvania and Philadelphia COVID-19 public health orders. The EWPA applies to all Philadelphia employers, regardless of their size.
Anti-Retaliation
The ...
While much attention is currently focused on whether Congress will extend, in whole or in part, the emergency $600 increase in unemployment insurance benefits (“UI”) that, until July 31, 2020, had been provided by the CARES Act (“Act”), the U.S. Department of Labor (“DOL”) is continuing to address questions about the other expansions of UI benefits under the Act, most recently, in an advisory letter issued on July 21, 2020 by the DOL’s Employment and Training Administration office (“ETA”). Of particular note, the latest ETA advisory letter instructs that an ...
As featured in #WorkforceWednesday: California provides a detailed COVID-19 employer playbook, and a federal judge vacated parts of the Department of Labor’s Families First Coronavirus Response Act rule.
Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they ...
Featured in #WorkforceWednesday: As enterprises continue to weigh the decisions and risks related to workplace transition, CLOs play a crucial role in addressing everything from leading the legal team and functions remotely, to the heightened organizational data privacy and security risk or the tax and immigration concerns that have arisen from these employee transitions.
Special guests Lori Lorenzo, Research and Insights Director of Deloitte’s Chief Legal Officer Program at Deloitte Transactions and Business Analytics LLP, and David Garland, Chair of the ...
While businesses and their employees continue to operate in the “new frontier” of working-from-home during the COVID-19 pandemic and the gradual reopening of the economy, a serious risk continues to present itself: the threat of cybercrime. The increased use of remote access to work systems and related applications has made businesses a prime target for those unscrupulous individuals seeking to encroach on companies’ cyber-landscape. Flaws in VPNs, firewalls, and videoconferencing, for example, have exposed many companies’ electronic infrastructures to these incursions. Similarly, the at-home workforce has increasingly been subjected to social engineering attacks often cloaked as communications purporting to provide information about pandemic-related issues.
In addition to the technical measures necessary to confront these threats, businesses would be well-advised to ensure that their cyber insurance is up to date and responds to this challenging new environment. Such coverage may be found in a variety of insurance, including property policies, commercial crime bonds or in stand-alone cyber risk policies. Regardless of where it resides, cyber insurance typically provides coverage for data breaches, ransomware attacks and employee wrongdoing, and for loss of business income occasioned by covered occurrences.
While the jurisprudence related to these issues continues to develop, some recent cases provide insight into how courts may decide cyber coverage questions in the current environment.
Ransomware - Covered
Earlier this year the U.S. District Court for the District of Maryland considered the issue of how first-party “computer coverage” responded to data loss resulting from a ransomware attack. In National Ink & Stitch, LLC v. State Auto Property & Casualty Ins. Co., No. SAG-18-2138, 2020 WL 374460 (D. Md. Jan. 23, 2020), the insured was an embroidery and screen printing business that stored business-related art, logos, designs and graphics software on a server that became compromised by a ransomware attack. Id. at *1. As a result, the insured needed to recreate stored data that it was unable to access because of the incursion. Id. Further, after the software was replaced and reinstalled by experts, there remained a likelihood that remnants of the virus lingered on the system, leaving the insured with the unpalatable choice of either “wiping” the entire system or purchasing a new server. Id.
The policy at issue responded to “direct physical loss of damage to Covered Property at the premises…caused by…any Covered Cause of Loss.” Id. “Covered Property” included electronic data processing, recordings or storage media such as film, tapes, disks, etc. in addition to data stored on such media. Id. at *1-2. Software was included as “covered property” in the policy. Id. at *1. The insurer denied the claim on the basis that the insured had not experienced direct physical loss or damage to its computer system to justify reimbursement of the cost of replacing the entire system. Id. at *2. That is, because the insured “only lost data and could still use its computer system,” the insurer took the position that there was no “direct physical loss” and, therefore, no coverage. Id.
In finding that the insured should be reimbursed for its losses, the court determined that the plain language of the policy “contemplates that data and software are covered and can experience ‘direct physical loss or damage’” Id. at *3. The court refused to credit the insurer’s argument that a loss of software and its related functionality was not a direct loss to tangible property simply because the insured could still use the system albeit in a diminished fashion. Id. Instead, relying on relevant case law, the court it recognized that the insured’s computer system, while still functional, had been rendered inefficient and its storage capability was damaged in a way that its data and software could not be retrieved. Id. at *4. Accordingly, the court ruled that the policy did not require the computer system to be completely unable to function in order to constitute covered “physical loss or damage”. Id. at *5.
In granting summary judgment in favor of the insured, the court viewed the system’s loss of use and reliability and impaired function to be consistent with the “physical loss or damage to” language in the policy. Id. This was so because “not only did [insured] sustain a loss of its data and software, but [it] is left with a slower system which appears to be harboring a dormant virus, and is unable to access a significant portion of software and stored data.” Id.
On July 27, 2020, Virginia became the first state in the nation to implement workplace safety and health standards for COVID-19. The Safety and Health Codes Board adopted § 16VAC25-220, an Emergency Temporary Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the “Temporary Standard”), which is designed to supplement and enhance existing Virginia Occupational Safety and Health (“VOSH”) laws, rules, and regulations that may apply to the prevention and control of COVID-19 in the workplace. Virginia imposed these standards because ...
As we previously reported, the COVID-19 pandemic has affected employers and employees across the globe. Since the outbreak of COVID-19, governments have implemented measures to address the economic impact of the pandemic, including job retention schemes and promoting remote work. Many employers have reconsidered the need for employees to return to the office at all. In response, Barbados and Estonia have taken a dynamic approach to these changes and have introduced digital nomad visas that allow individuals to live in the country while they work for foreign employers.
Digital ...
Featured in #WorkforceWednesday: This week, Virginia became the first state to issue workplace safety standards, but with guidance still varying widely, many nationwide businesses have begun requiring masks.
On July 20, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) published new guidance for businesses reopening amid the COVID-19 pandemic. The guidance is in the form of additions to the WHD’s existing Frequently Asked Questions (“FAQs” or “Guidance”) and addresses issues arising under two leave laws—the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”)—and wage and hour matters governed by the Fair Labor Standards Act (“FLSA”).
New FMLA FAQs
The WHD added the ...
In recent years, wage discrimination has been a hot topic and with it, the question of whether employers may rely on a worker’s salary history to justify a pay disparity between male and female employees. In a 2018 case involving the federal Equal Pay Act (“EPA”), Rizo v. Yovino, (about which we wrote here), the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled that employers may not rely on prior salary to excuse unequal pay. On petition, the Supreme Court vacated the decision and remanded the case on a technical ground (i.e., because the judge who ...
Tracking diversity and inclusion efforts on a global basis is often a challenging task for in-house legal, human resources, and diversity and inclusion teams. While employers may be interested in collecting applicants’ and/or employees’ diversity information for worthy reasons, such an effort is a fertile ground for potential litigation involving data privacy violations and discrimination claims.
Risks of Violating Data Privacy Requirements
Globally, diversity information typically constitutes personal data (and, in many jurisdictions, sensitive personal ...
Featured in #WorkforceWednesday: Employers are encouraging employees to use their vacation time this summer to avoid a crush of end-of-year vacations. But what happens when an employee vacations in a COVID-19 “hotspot”? Attorney Nancy Gunzenhauser Popper explains.
As featured in #WorkforceWednesday: The latest FAQs from OSHA recommend wearing face masks, among other suggestions, for employees returning to work. Attorney Robert J. O'Hara discusses the significance of OSHA’s decision to issue recommendations, rather than guidance, and how rules on face masks in the office may differ at the state and local levels.
In a recent Bloomberg Law article, we reported on legislative developments regulating the use of artificial intelligence (“AI”) in employment law decisions. On May 11, 2020, one of the pieces of proposed legislation we discussed, Maryland’s H.B. 1202, became law without Governor Larry Hogan’s signature. As we reported, H.B. 1202 prohibits employers from using facial recognition technology during pre-employment job interviews without the applicant’s consent. To use facial recognition services in interviewing employees, an employer must obtain an applicant’s ...
Trump Administration Amends Presidential Proclamation That Temporarily Suspends New H-1B, H2B, J-1, and L-1 Visa and Travel from Abroad
On June 29, 2020, the Trump administration issued an amendment to Section 3(a)(ii) of Proclamation 10052 (“Proclamation”) to suspend and limit foreign nationals attempting to enter the United States in H-1B/H-2B/H-4, L-1/L-2, or J-1/J-2 employment-based nonimmigrant visa categories.
The original language in the Proclamation read as follows:
Sec. 3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on ...
As featured on #WorkforceWednesday: This week, we finally have some guidance from the Occupational Safety and Health Administration (OSHA), and big employment law changes in Virginia go into effect.
July 1, 2020 represents a milestone for Virginia employers. As we previously reported, nearly two dozen new employment laws take effect, including the Virginia Values Act. In addition, all of Virginia enters Phase Three of Governor Ralph Northam’s Safer at Home plan to reopen the economy in light of the COVID-19 pandemic.
Changes to Virginia Employment Law
Employers with Virginia operations should take note of the following important changes:
- Sexual Orientation, Gender Identity, Military Status, and Pregnancy: The Virginia Values Act amended the Virginia Human Rights Act
Featured in #WorkforceWednesday: Attorney Denise Dadika examines the unique challenges health care employers face as they ramp business back up and reopen for both patients and employees.
Featured in #WorkforceWednesday: As businesses across the United States open up, workers may increasingly turn to unions to help support their safety. Employers should take steps to properly prepare for this resurgence in union activity. Attorney RyAnn Hooper explains more.
Presidential Proclamation Temporarily Suspends New H-1B, H2B, J-1, and L-1 Visa and Travel from Abroad
On June 22, 2020, President Trump issued a proclamation (“Proclamation”) suspending and limiting the entry of individuals into the United States in the following employment-based nonimmigrant visa categories:
- H-1B or H-2B visas, and their H-4 family derivatives;
- J-1 visas, and their J-2 family derivatives; and
- L-1 visas, and their L-2 family derivatives.
The Proclamation takes effect on June 24, 2020, and is set to expire on December 31, 2020, but may be extended. In ...
As featured in #WorkforceWednesday: This week, we saw a landmark employment law decision and received clarifications on return-to-work issues involving older workers.
As featured in #WorkforceWednesday: Mobile technologies, including contact tracing and screening apps, will help safely bring employees back to work. However, there are a range of employment law and privacy concerns to consider before implementing these technologies. Attorneys Adam S. Forman and Karen Mandelbaum tell us more. You can also read more in a recent Law360 article.
Plan participants and their beneficiaries may now have extra time to exercise some of their rights under the employee benefit plans in which they participate. On April 28, 2020, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury issued a joint notice extending certain timeframes applicable to employee benefit plans. The joint notice was published as a final rule in the Federal Register on May 4, 2020 (“Final Rule”), issued pursuant to Section 518 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as recently ...
On May 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced that it was delaying the collection of 2019 EEO-1 demographic data until 2021 because of the COVID-19 public health emergency. Accordingly, the EEOC’s online filing portal for 2019 EEO-1 filings will remain closed for now.
Recognizing the substantial impact the public health emergency is having on businesses across the country, the EEOC determined that delaying collections would put employers in a better position to provide accurate data. It expects to begin collecting 2019 EEO-1 data along ...
Many more millions of employees have been working remotely as a result of the devastating COVID-19 virus than ever before. There is likely no going back. Employers have been relying on a remote workforce by necessity in the short term and are realizing that in the long term they can operate efficiently and productively with their staff largely out of the office. The public health risks will, for the foreseeable future, be the driver both on employers’ need for a remote workforce to achieve continuity of operations and employees’ demand for a safer work location. The increased ...
As featured in #WorkforceWednesday: The COVID-19 pandemic has created a sudden imbalance in the labor market. While many employers are implementing layoffs or furloughs, other “essential” businesses are searching for additional employees to meet demand. Attorneys Nathaniel Glasser and Ian Carleton Schaefer discuss how employers can use creative approaches to address this imbalance. Read more about the strategies for employers (subscription required).
President Trump Signs Executive Order to “Temporarily Suspend Immigration into the United States”
On April 20, 2020, President Trump tweeted, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” The vague tweet triggered many questions and concerns as to the scope of the immigration suspension and the impact it would have on many foreign nationals and their respective U.S. employers.
On the afternoon of April 22 ...
As featured in #WorkforceWednesday: With all the challenges businesses are facing, it is hard to stay focused on data security. Hackers see the newly remote workforce as an opportunity, and phishing attacks are on the rise. Employers can fight back in a few ways:
- Educate employees.
- Update training materials and work-from-home policies.
- Get security patches to employee devices quickly.
- Update your data breach response plan and communicate it.
- Remind your employees to help keep data secure by password-protecting devices with strong passwords and protecting sensitive ...
As we previously reported, the COVID-19 pandemic has altered the global workplace and international employer-employee relations in profound ways. As COVID-19 continues to spread, countries are enacting legislation and issuing guidance to support employers and employees as they confront the global crisis. In particular, Brazil, with a population of over 211 million, and India, with a population of approximately 1.3 billion, each has enacted measures to combat the ongoing economic and financial troubles caused by the COVID-19 pandemic.
Specifically, Brazil has issued ...
USCIS Completes the Initial Selection Process
On April 1, 2020, U.S. Citizenship and Immigration Services (‘USCIS”) announced that the initial selection of H-1B cap-subject registrations for fiscal year (“FY”) 2021 was completed. Petitioners who electronically registered beneficiaries in the H-1B registration process and were selected through the random selection process may file their H-1B cap petition within the period indicated on the relevant registration selection notice. The filing period for the H-1B cap-subject petition will be at least 90 days
As featured in #WorkforceWednesday: Last week, Congress passed and President Trump signed the CARES Act, a $2+ trillion stimulus law, which is the largest stimulus in U.S. history. Attorney Paul DeCamp discusses how this law could benefit certain employers during this unprecedented time in the following video interview.
As many employers and employees in the State of New York know, when an individual files claims for unemployment insurance benefits, New York Labor Law, Section 590, Subdivision 7, has a mandatory seven day waiting period before unemployment benefits may be paid.
On March 7, 2020, Governor Andrew Cuomo issued Executive Order No. 202.1, declaring a State disaster emergency for the entire State of New York (the “Order”). The Order, which is entitled “Suspension and Modification of Laws Relating to the Disaster Emergency,” suspends and modifies many existing laws.
This ...
As featured in #WorkforceWednesday: In the event the coronavirus spreads drastically, many employers will want to implement mandatory work-from-home policies. Employers should consider various aspects of the Fair Labor Standards Act when crafting these policies. Attorney Jeffrey H. Ruzal explains best practices in the following video interview. See also his recent post on the Wage and Hour Defense Blog.
Video: YouTube, Vimeo, MP4, Instagram.
Podcast: Apple Podcasts, Google Play, Overcast, Soundcloud, Spotify, Stitcher.
Following are the top stories featured in this week's #WorkforceWednesday, from Employment Law This Week:
Employee Travel and the Coronavirus
The threat of COVID-19 is growing, and U.S. companies are on high alert. International travel by employees is an area of particular concern to employers. For more, check out our resource center at https://www.ebglaw.com/coronavirus.
NLRB Joint-Employment Rule to Take Effect
The National Labor Relations Board ...
We are pleased to present Workforce Bulletin, the newest blog from law firm Epstein Becker Green (EBG). We've combined a decade of posts from five of the firm's well-regarded blogs, spanning employment law topics impacting employers in a range of industries and areas, including financial services, hospitality, OSHA, retail, technology, and more.
Workforce Bulletin will feature thought leadership from EBG attorneys on cutting-edge issues, such as sexual harassment, diversity and inclusion, pay equity, artificial intelligence in the workplace, cybersecurity, and the impact ...
In our new Advisory, "Responding to the Coronavirus (COVID-19) Outbreak: Update on Best Practices for Employers," we review significant developments since our January 30th Advisory.
Following is the "What Employers Should Do Now" section of the new Advisory:
- Appoint a single individual or department as the point of contact within your organization for questions about Coronavirus and to ensure a coordinated and consistent response to all inquiries.
- Provide updated information to employees about the symptoms of COVID-19 and affected areas.
- Educate supervisors on the ...
A Trending News interview with our colleague Michael Ferrell of Epstein Becker Green, as featured in #WorkforceWednesday. As Mike discusses, Kickstarter employees voted to unionize last week. This is the first big unionization in the technology industry, and it could signal more union activity to come.
A Trending News video featured in #WorkforceWednesday: According to The New York Times, over 200 executives have been ousted since 2017, leaving some wondering – is #MeToo over? Far from it.
This dynamic, macro-equity movement has led to numerous workplace regulations that encompass broader pay equity and diversity and inclusion efforts. Privileged pay equity audits are one proactive tool.
Time is running out. The effective date of New York’s cybersecurity law mandating that organizations implement an information security program to protect “private information” of New York State residents, including employee and consumer data, is now only 45 days away. New York’s law requires the implementation of a cybersecurity program, including reasonable protective measures such as risk assessments, workforce training and incident response planning and testing. Businesses should immediately take steps to comply with the Act’s requirements effective March ...
As we have previously blogged, use of third-party digital hiring platforms to select job applicants using video interviews can present an array of potential legal issues. A recent Complaint filed with the Federal Trade Commission (“FTC”) by a consumer advocacy organization, Electronic Privacy Information Center (“EPIC”), illustrates some of those potential pitfalls. EPIC asks the FTC to investigate the recruiting technology company HireVue for alleged discriminatory screening of job applicants through its face-scanning software. HireVue asks job applicants to ...
As we enter the last quarter of 2019 and the business community begins to plan ahead for 2020, New York employers should be aware of the changes coming to the New York Paid Family Leave (“NYPFL”) program. On January 1, 2020, both the amount of employee contributions and weekly benefits allowed under the program are scheduled to increase. This will be the second of three annual increases in weekly benefits.
The NYPFL program, which took effect in 2018, provides partially-paid, job-protected leave for bonding with a new baby, caring for a seriously ill family member, and matters ...
This week, a one-year “revival” period of statute of limitations began for individuals who assert civil claims of child abuse to file claims against institutions and individuals pursuant to New York’s Child Victims Act, even if those claims had already expired and/or were dismissed because they were filed late. The premise behind the Child Victims Act is that children are often prevented from disclosing abuse due to the social, psychological and emotional trauma they experience.
Additionally, the Child Victims Act, also expands the statute of limitations for bringing ...
This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in August 2019.
This episode includes:
- Increased Employee Protections for Cannabis Users
- First Opinion Letters Released Under New Wage and Hour Leadership
- New Jersey and Illinois Enact Salary History Inquiry Bans
- Deadline for New York State Anti-Harassment Training Approaches
- Tip of the Week
See below to watch the full episode – click here for story details and video.
We invite you to view Employment Law This Week® – tracking the latest developments that could ...
New York is the latest state to adopt a law that requires businesses that collect private information on its residents to implement reasonable cybersecurity safeguards to protect that information. New York now joins California, Massachusetts and Colorado in setting these standards. New York’s law mandates the implementation of a data security program, including measures such as risk assessments, workforce training and incident response planning and testing. Businesses should immediately begin the process to comply with the Act’s requirements effective March 21, 2020 ...
We have long counseled employers using or contemplating using artificial intelligence (“AI”) algorithms in their employee selection processes to validate the AI-based selection procedure using an appropriate validation strategy approved by the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”). Our advice has been primarily based on minimizing legal risk and complying with best practices. A recently updated Frequently Asked Questions (“FAQ”) from the Office of Federal Contract Compliance Programs (“OFCCP”) provides further ...
Our colleagues Maxine Neuhauser, Nathaniel M. Glasser, Denise Dadika, & Anastasia A. Regne,
Following is an excerpt:
In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage ...
The recently proposed amendment to the California Consumer Privacy Act (CCPA) should be a wake up call to those employers who are not already actively planning for the January 1, 2020 compliance deadline.
The amendment reaffirms that employers must (i) provide employees with notice of the categories of personal information collected and the purposes for which the information shall be used at or before collection; and (ii) implement reasonable cybersecurity safeguards to protect certain employee personal information or risk employee lawsuits, including class actions seeking ...
Our colleague Amanda M. Gomez
Following is an excerpt:
Additionally, employers that can demonstrate a good faith effort through proactive measures to comply with the Act may be able to mitigate liability should a claim arise. Similar to “safe harbor” provisions in equal pay laws in Massachusetts and Oregon, such ...
Increasingly companies are using third-party digital hiring platforms to recruit and select job applicants. These products, explicitly or implicitly, promise to reduce or eliminate the bias of hiring managers in making selection decisions. Instead, the platforms grade applicants based on a variety of purportedly objective factors. For example, a platform may scan thousands of resumes and select applicants based on education level, work experience, or interests, or rank applicants based on their performance on an aptitude test – whatever data point(s) the platform has been ...
A recent WSJ article about a private equity firm using AI to source investment opportunities by Laura Cooper presages a larger challenge facing employees and employers: AI tools do “the work of ‘several dozen humans’” “with greater accuracy and at lower cost.” In the competitive and employee-dense financial services sector, AI tools can provide a competitive advantage.
Ms. Cooper cites San Francisco based Pilot Growth Equity Partners, one of many of a growing number of equity investment firms to utilize AI. Pilot Growth that has developed “NavPod’ a cloud based ...
Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.
In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.
In our newest installment, Cassandra Labbees, an ...
On May 9, 2019, the United States Department of Justice announced the indictment of two Chinese Nationals as members of a sophisticated hacking group responsible for the hack of Anthem, Inc. and other unnamed U.S. based large technology, communications and basic materials companies. The hack resulted in the breach of personally identifiable information of over 78 million individuals held by Anthem and the theft of confidential business information from the victimized organizations. The indictment provides a roadmap to advanced hacking attacks regularly faced by technology ...
On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act ("NJFLA"), Family Leave Insurance Act ("NJFLI"), and Security and Financial Empowerment Act (“SAFE Act”). We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees.
In response ...
Washington State has begun implementing its new Paid Family & Medical Leave program (“PFML”). Other states, such as New Jersey, New York, and Rhode Island already have paid family and medical leave programs in place, and now Washington, Massachusetts and Washington, D.C. are set to join them over the next few years. Although the benefits portion of Washington’s program does not kick in until 2020, employers’ reporting and remitting of premiums for Quarters 1 and 2 are due between July 1 and July 31, 2019.
The Washington Employment Security Department (“ESD”), which will ...
In an attempt to reduce the gender wage gap, the Washington State Legislature passed HB 1696,(“the Bill”), legislation that will prevent all private employers in Washington State from inquiring into the salary history of prospective employees or requiring that an applicant's prior wage or salary history meet certain criteria. Additionally, the Bill mandates that, upon an applicant’s request, an employer with 15 or more employees must provide the applicant with certain details about the pay rate or salary range for the open position.
If, as expected, the measure is signed ...
Our colleague Stuart Gerson recently authored an article in the Washington Legal Foundation’s Legal Backgrounder that will be of particular interest to our readers focused on privacy and cybersecurity: “Federal Preemption: An Essential Component of an Effective National Data-Security and Privacy Regime.”
Following is an excerpt:
Significant data breaches at every level of national life have pushed the privacy and security of personally-identifiable information (PII) to the forefront of state and federal policymakers’ agendas. In the interests of efficiency and ...
A Trending News video has been posted now that the Stop Sexual Harassment in NYC Act is in effect. New York employers must provide annual anti-harassment training for their workers, and there are specific rules that apply to independent contractors. Contractors shouldn’t be harassed, and they can also create exposure if they engage in harassment. As a reminder to NYC employers: Don’t forget your contractors!
What the full video below.
Our colleague Brian Cesaratto at Epstein Becker Green has a post on the Health Law Advisor Blog that will be of interest to our readers in the technology industry: "Harden Your Organization’s Domain Name System (DNS) Security to Protect Against Damaging Data Loss and Insider Threat."
Following is an excerpt:
Although there is no specific mention of DNS in HIPAA, the Gramm Leach Bliley Act, the GDPR or State cybersecurity laws or regulations, including California, Massachusetts or New York, an organization cannot comply with those regulatory frameworks requiring ...
Technology, media, and telecommunications organizations are at the forefront of tackling new challenges in handling employee information and managing employee populations. As legislatures (from the federal level down to states and cities) address how technology impacts today’s new workforce, employers must grapple with changes in managing data—from privacy concerns to the use of artificial intelligence in employment matters—and keeping workers happy, including dealing with wage increases, the rise in union activity, and contingent workers in the #MeToo era. A changing workplace landscape requires creative thinking and outside-the-box solutions.
Washington State is considering sweeping legislation (SB 5376) to govern the security and privacy of personal data similar to the requirements of the European Union’s General Data Protection Regulation (“GDPR”). Under the proposed legislation, Washington residents will gain comprehensive rights in their personal data. Residents will have the right, subject to certain exceptions, to request that data errors be corrected, to withdraw consent to continued processing and to deletion of their data. Residents may require an organization to confirm whether it is processing ...
As we previously reported, since 2017 employees have filed dozens of employment class actions claiming violations of Illinois’ 2008 Biometric Information Privacy Act (“BIPA”). In short, BIPA protects the privacy rights of employees, customers, and others in Illinois against the improper collection, usage, storage, transmission, and destruction of biometric information, including biometric identifiers, such as retina or iris scans, fingerprints, voiceprints, and scans of face or hand geometry. Before collecting such biometric information, BIPA requires an ...
There is a visceral and palpable dynamic emerging in global workplaces: tension.
Tension between what is potentially knowable—and what is actually known. Tension between the present and the future state of work. Tension between what was, is, and what might become (and when). Tension between the nature, function, and limits of data and technology.
The present-future of work is being shaped daily, dynamically, and profoundly by a host of factors—led by the exponential proliferation of data, new technologies, and artificial intelligence (“AI”)—whose impact cannot be understated. Modern employers have access to an unprecedented amount of data impacting their workforce, from data concerning the trends and patterns in employee behaviors and data concerning the people analytics used in hiring, compensation, and employee benefits, to data that analyzes the composition of the employee workforce itself. To be sure, AI will continue to disrupt how virtually every employer views its human capital model on an enterprise basis. On a micro level, employers are already analyzing which functions or groups of roles might be automated, augmented, or better aligned to meet their future business models.
And, yet, there is an equal, counterbalancing force at play—the increased demand for accountability, transparency, civility, and equity. We have already seen this force playing out in real time, most notably in the #MeToo, pay equity, and data privacy and security movements. We expect that these movements and trends will continue to gain traction and momentum in litigation, regulation, and international conversation into 2019 and beyond.
We have invited Epstein Becker Green attorneys from our Technology, Media & Telecommunications (“TMT”) service team to reflect and opine on the most significant developments of the year. In each, we endeavor to provide practical insights to enable employers to think strategically through these emergent tensions and business realities—to continue to deliver value to their organizations and safeguard their goodwill and reputation.
Join Epstein Becker Green attorneys, Brian G. Cesaratto and Brian E. Spang, for a discussion of how employers can best protect their critical technologies and trade secrets from employee and other insider threats. Topics to be discussed include:
- Determining your biggest threat by using available data
- What keeps you up at night?
- Foreseeing the escalation in risk, from insider and cyber threats to critical technologies
- New protections and remedies under the Trade Secret Protection Act of 2014
- Where are your trade secrets located, and what existing protections are in place?
- What ...
This extended interview from Employment Law This Week will be of interest to many of our readers. Attorney and co-editor of this blog, Michelle Capezza explains how recent legal developments have prepared employers for their future workforce, which will include artificial intelligence technologies working alongside human employees. She also looks at the strategies employers should start to consider as artificial intelligence is incorporated into the workplace.
We published an article with NYSBA Labor and Employment Law Journal, titled “Employee Threats to Critical Technologies Are Best Addressed Through a Formalized Insider Threat Risk Assessment Process and Program.” With the New York State Bar Association's permission, we have linked it here.
Our colleague at Epstein Becker Green has a post on the Health Law Advisor blog that will be of interest to our readers in the technology industry: “NIST Seeks Comments on Cybersecurity Standards for Patient Imaging Devices.”
Following is an excerpt:
The National Institute of Standards and Technology (“NIST) has announced that it will be seeking industry input on developing “use cases” for its framework of cybersecurity standards related to patient imaging devices. NIST, a component of the Department of Commerce, is the agency assigned to the ...
The European Union’s (“EU’s”) General Data Protection Regulations (“GDPR”) go into effect on May 25, 2018, and they clearly apply to U.S. companies doing business in Europe or offering goods and services online that EU residents can purchase. Given that many U.S. companies, particularly in the health care space, increasingly are establishing operations and commercial relationships outside the United States generally, and in Europe particularly, many may be asking questions akin to the following recent inquiries that I have fielded concerning the reach of the ...
James D. Schutzer is the Vice President at JDM Benefits, a consulting group that provides strategic benefits services to small and mid-size employers. His career in healthcare spans over 20 years and has included leadership roles in employee benefits and insurance sales. He spent 10 years working in sales for carriers like Wellpoint and Oxford Health Plans. Jamie frequently presents and lectures to many organizations on the topic of the Affordable Care Act and sat on the New York State Health Benefit Exchange Regional Advisory Council. In addition, Jamie is the Immediate Past ...
Our colleague Daniel R. Levy, at Epstein Becker Green, has a post on the Trade Secrets & Employee Mobility blog that will be of interest to our readers: "It’s a Brave New World: Protecting Trade Secrets When Traveling Abroad with Electronic Devices."
Following is an excerpt:
Consider the following scenario: your organization holds an annual meeting with all Research & Development employees for the purpose of having an open discussion between thought leaders and R&D regarding product-development capabilities. This year’s meeting is scheduled outside the United States and ...
On January 30, in New York City, our colleague Michelle Capezza of Epstein Becker Green will be a panelist at the "2018 Technology Economic & Financial Outlook," hosted by the New Jersey Tech Council (NJTC).
From the “internet of things,” to the cloud, to autonomous cars, there is not a single industry segment that has not leveraged technology to develop better products and services for the benefit of their customers as well as their stakeholders. As technology makes the world smaller, it also opens up endless opportunities for creativity and innovation. The panel will ...
Steven R. Blackburn, Member of the Firm in the Employment, Labor & Workforce Management practice will co-present a Practising Law Institute in-person event and webcast on January 25, 2018 at 10:00 a.m. PST titled “Tech Sector Employment Law Hot Topics for the California Lawyer.”
This event will address current California employment law issues, with the added focus of how the latest, state-specific legal developments impact the tech sector, in particular.
Steven R. Blackburn’s program is titled, “Sexual Harassment in the Tech Sector - Employer Duties, Investigations ...
As 2017 comes to a close, recent headlines have underscored the importance of compliance and training. In this Take 5, we review major workforce management issues in 2017, and their impact, and offer critical actions that employers should consider to minimize exposure:
- Addressing Workplace Sexual Harassment in the Wake of #MeToo
- A Busy 2017 Sets the Stage for Further Wage-Hour Developments
- Your “Top Ten” Cybersecurity Vulnerabilities
- 2017: The Year of the Comprehensive Paid Leave Laws
- Efforts Continue to Strengthen Equal Pay Laws in 2017
When deliberations began regarding the first tax reform legislation in over thirty years, many raised concerns that tax reform measures would adversely affect retirement savings programs such as the 401(k) plan. Now, as the tax reform proposals have become further vetted, the 401(k) approach to pre-tax retirement savings appears to remain intact and may actually survive “Rothification”. The IRS also recently increased the 401(k) pre-tax savings contribution limit to $18,500 for 2018. Despite the confirmed importance of retirement savings vehicles such as the 401(k ...
In a recent update to the IRS’ Questions and Answers on Employer Shared Responsibility Provisions under the Affordable Care Act, the IRS has advised that it plans to issue Letter 226J informing applicable large employers (ALEs) of their potential liability for an employer shared responsibility payment for the 2015 calendar year, if any, sometime in late 2017. The IRS plans to issue Letter 226J to an ALE if it determines that, for at least one month in the year, one or more of the ALE’s full-time employees was enrolled in a qualified health plan for which a premium tax credit (PTC) was ...
Employers continue to incorporate the use of biometric information for several employee management purposes, such as in systems managing time keeping and security access that use fingerprints, handprints, or facial scans. Recently, Illinois state courts have encountered a substantial increase in the amount of privacy class action complaints under the Illinois Biometric Information Privacy Act (“BIPA”), which requires employers to provide written notice and obtain consent from employees (as well as customers) prior to collecting and storing any biometric data. Under ...
For the second time in as many years, California Governor Jerry Brown has vetoed “wage shaming” legislation that would have required employers with 500 or more employees to report gender-related pay gap statistics to the California Secretary of State on an annual basis beginning in 2019 for publication on a public website. Assembly Bill 1209 (“AB 1209”), which we discussed at length in last month’s Act Now advisory, passed the Legislature despite widespread criticism from employers and commerce groups. This criticism included concerns that publication of statistical ...
Our colleague of Epstein Becker Green authored an article in Confero, titled “Managing Employee Benefits in the Face of Technological Change.”
Following is an excerpt - click here to download the full article in PDF format:
There are many employee benefits challenges facing employers today, from determining the scope and scale of traditional benefits programs to offer that will attract, motivate and retain multigenerational employees, to embracing new models for defining and providing benefits, while simultaneously managing costs. In the midst of ...
New York State has issued proposed regulations extending existing regulations requiring banks and other financial institutions to have in place a comprehensive cybersecurity program to credit reporting agencies. Governor Mario Cuomo announced that “The Equifax breach was a wakeup call and with this action New York is raising the bar for consumer protections that we hope will be replicated across the nation.”
Under the proposed regulations, every consumer reporting agency that assembles, evaluates or maintains a consumer credit report on NYS consumers must register with ...
Employers across all industries are deep in the midst of exciting but unchartered and fluid times. Rapid and unforeseen technological advancements are largely responsible for this dynamic. And while there is a natural tendency to embrace their novelty and potential, the reality is that these advancements are often outpacing our regulatory environment, our bedrock legal constructs, and, in some cases, challenging the traditional notions of work itself.
For employers, this presents numerous challenges and opportunities—from the proper design of the portfolio of the modern ...
Howard Gerver is a self-proclaimed human capital data geek. His “day job” specializes in finding innovative and practical ways to save money by identifying “golden nuggets” mined from Big HR Data sets, such as claims and human capital data. A lot of this work includes analytics, claim auditing and eligibility auditing. His “nights and weekend” job focuses on helping clients leverage their HR, Benefits, Leave and Time & Attendance data to help improve compliance with the Affordable Care Act (Obamacare). Throughout his career, he has focused on improving the ...
The Federal Trade Commission (“FTC”) recently issued guidance discussing certain disclosure and authorization requirements that employers must satisfy prior to obtaining background screening reports for prospective employees. If your company obtains background information to screen prospective employees, now is a good time to make sure you are complying with the Fair Credit Reporting Act (“FCRA”).
Under the FCRA, background screening reports are either “consumer reports” or “investigative consumer reports” when they are used for employment purposes ...
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Recent Updates
- Podcast: Can FTC’s Non-Compete Ban Survive Without Chevron Deference? – Employment Law This Week
- Video: Chevron Deference Overturned - Employment Law This Week
- California District Court Rules That Software Vendor Is Subject to Title VII, the ADA, the ADEA
- Pumping the Brakes: New York Seeks to Curb AI Acceleration in Labor Market
- Video: California Governor’s PAGA Deal: What Employers Need to Know - Employment Law This Week