Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

It was another busy year in the California Legislature with regard to employment and labor issues. Of particular note for California employers are the new laws related to employee hiring practices with the prohibitions on requesting an employment applicant’s salary history information, limitations on the use of an employment applicant’s criminal conviction history, and the New Parent Leave Act, which provides 12 weeks of unpaid parental leave for employees of small employers (20 or more). Discussed in detail below are the most significant new laws pertaining to private employers in California that are effective January 1, 2018, unless otherwise noted. California employers should review their policies and procedures, especially those related to employee hiring, to ensure compliance with these new laws in 2018.While California is busy providing additional protections for employees, the U.S. Department of Labor and the National Labor Relations Board under the Trump administration are busy undoing various Obama-era decisions and regulations in a pro-employer shift likely to continue throughout 2018.AB 1008: Ban The Box – Criminal Conviction HistoryEmployers of five or more employees are prohibited from (1) including on a job application, prior to making a conditional offer of employment, any questions regarding an applicant’s criminal conviction history; (2) inquiring into or considering an applicant’s criminal conviction history prior to making a conditional offer of employment; or (3) considering, distributing, or disseminating information about arrests not resulting in a conviction, referral to or participation in a post-trial diversion program, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated. (Government Code § 12952.) In addition, where an employer plans to deny an applicant employment solely or in part because of an applicant’s criminal conviction history, the employer must first undertake an individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship with the specific job position. This assessment must include consideration of: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought. The employer is not required to put the results of the individualized assessment in writing.If the employer makes a preliminary decision that the criminal conviction history disqualified an applicant, the employer must provide the applicant with written notice, which may but is not required to explain the reasons for its decision. The notice to the applicant must include the following information: (1) notice of the disqualifying conviction(s); (2) a copy of the conviction history report (if any); and (3) explanation of the applicant’s right to respond to the notice before the preliminary decision becomes final, which may include submission of evidence challenging the accuracy of the conviction history report and evidence of rehabilitation and mitigating circumstances. The applicant has five business days to respond to the notice. If within those five days the applicant informs the employer in writing that the applicant is taking specific steps to obtain evidence to dispute the accuracy of the criminal history report, the applicant is entitled to an additional five business days to respond to the notice. The employer must consider the information submitted by the applicant before making a final decision.If the final decision is to deny employment, then the employer must provide written notice to the applicant which includes: (1) the final denial or disqualification; (2) any existing procedure of the employer to challenge the decision or request reconsideration; and (3) the right of the applicant to file a complaint with the Department of Fair Employment and Housing (DFEH).Please note that certain limited exceptions apply, including where state, federal, or local law required the employer to conduct criminal background checks and restrict employment based on criminal history.AB 168: Employee Salary History BanWith the addition of Labor Code § 432.3, employers are prohibited from relying on the salary history information of an applicant as a factor for determining whether to offer an applicant employment or what salary to offer an applicant. Employers are also prohibited from seeking salary history information, including compensation and benefits, about an applicant. Further, upon request, employers must provide an applicant the pay scale for the position. However, if an applicant voluntarily and without prompting discloses the applicant’s salary history to an employer, the employer is not prohibited from considering and relying on that information in determining the salary for the applicant.California is not the only jurisdiction banning salary history inquiries as an effort to combat pay inequities. New York City recently enacted its own salary history ban, as detailed below. In doing so, New York City joins California, Delaware, Massachusetts, Puerto Rico, Oregon, Pittsburgh, New Orleans, and San Francisco (Philadelphia has passed a law, but it is presently being challenged; New York has a bill pending before the Senate).New York City's Employee Salary History BanNew York City Local Law No. 2017/067 prohibits employers from inquiring about the salary history of an applicant for employment or relying on the salary history of an applicant in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of a contract. However, employers may discuss an applicant’s expectations with respect to salary, benefits, and other compensation. If an applicant voluntarily and without prompting discloses salary history to an employer, the employer may consider salary history in determining salary, benefits, and other compensation for such applicant and may verify such applicant’s salary history. Salary history may also be considered for current employees seeking an internal transfer or promotion. Penalties for non-compliance resulting in unlawful discrimination under the city Human Rights Law could be as much as $125,000 for an unintentional violation or $250,000 for a willful violation. This law went into effect on October 31, 2017.SB 63: New Parent Leave ActEmployers who employ at least 20 employees now must provide employees working at a worksite with at least 20 employees within a 75-mile radius who have more than 12 months of service and have worked at least 1,250 hours in the prior 12 months with 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. (Government Code § 12945.6.) The employer must guarantee employment in the same or a comparable position upon return. Leave is unpaid, but employees may use vacation, paid sick time, or other accrued paid time off during leave. Employers must maintain and pay for health care coverage during parental leave at the level and under the conditions that coverage would be provided if the employee continued to work. If both parents are employed by the same employer, the employer is not required to grant leave to the parents of more than 12 weeks, and may but is not required to provide these parents with simultaneous leave. Further, it is unlawful for employers to refuse to hire, discharge, fine, suspend, expel, or discriminate against employees for exercising their right to leave or giving information or testimony as to the employee’s own or another person’s leave during an investigation or proceeding related to New Parent Leave Act rights, as well as interfering with or denying an employee’s right to leave.The New Parent Leave Act does not apply to employees entitled to leave under the California Family Rights Act or the federal Family and Medical Leave Act. However, to the extent the California Family Rights Act regulations are within the scope and do not conflict with the New Parent Leave Act, the Fair Employment and Housing Council will incorporate those regulations by reference. In addition, through January 1, 2010, the DFEH, upon receiving necessary funding, must create a parental leave mediation pilot program. The pilot program allows employers to request that all parties participate in the DFEH’s Mediation Division Program within 60 days of receipt of a right-to-sue notice issued by the DFEH for a violation of the New Parent Leave Act. If an employer makes a timely request for mediation, an employee may not pursue any civil action until the mediation is complete. The employee’s statute of limitations, including for all related claims not under the New Parent Leave Act, will be tolled upon receipt of the employer’s request to participate in the DFEH’s Mediation Division Program until the mediation is complete. A mediation will be deemed complete when, at any time after the employer’s request, either party notifies the DFEH’s Mediation Division Program and all other parties that it is electing not to participate in, or is withdrawing from, the mediation or the DFEH notifies the parties that it believes further mediation would be fruitless.AB 450: Emplpyment Regulation – Immigration Worksite Enforcement ActionsThis law prohibits employers from voluntarily consenting to an immigration enforcement agent entering any nonpublic areas of a workplace unless the agent has a judicial warrant. (Government Code §7285.1.) Employers also may not voluntarily consent to an immigration enforcement agent accessing, obtaining, or reviewing employee records without a judicial warrant or subpoena. (Government Code §7285.2.) Violations subject employers to a penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for a subsequent violation. In addition, employers must provide employees notice in the language in which the employer regularly communicates employment-related information with any inspections of the I-9 Employment Eligibility Verifications forms or other employment records by an immigration agency within 72 hours of the employer receiving notice of the inspection. The posting must contain the following information: (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted. (Labor Code § 90.2.) The Labor Commissioner is required to provide a template for the required posting by July 1, 2018. Employers are further required to provide employees who are identified through the inspection as lacking work authorization or having deficiencies in their work authorization documents individual notice of the results of the inspection.AB 1701: Labor-Related Liabilities For General Contractor All direct contractors making or taking contracts for the execution, construction, alteration, or repair of a building, structure, or other private work must assume and are liable for any debt owed to a wage claimant (or a third party acting on their behalf) incurred by a subcontractor. The direct contractor’s liability includes unpaid wages, fringe and other benefit payment, and contributions and interest, but not penalties or liquidated damages. The new law will apply to all contracts entered into on or after January 1, 2018.AB 2337: Employment Protections – Victims Of Domestic Violence, Sexual Assault, Or StalkingThe Labor Commissioner has published a notice available on its website as required by Labor Code § 230.1 to notify employees of their rights in regards to protections against discrimination and retaliation and the availability of time off and use of vacation, personal leave, or compensatory time off due to their status as victims of domestic violence, sexual assault, or stalking. Employers must provide this notice (or a notice with substantially similar content) to new employees or to other employees upon request. This requirement went into effect when the notice was posted on the Labor Commissioner’s website earlier this year.AB 2899: Minimum Wage ViolationsLabor Code § 1197.1 provides that an employer or other person who pays less than minimum wage is subject to a civil penalty, restitution of wages, liquidated damages, and penalties under Labor Code section 203. It further allows an employer or other person to appeal a Labor Commissioner’s finding of a violation by a writ of mandate to the superior court. The new amendment to Labor Code § 1197.1 requires an employer or person challenging the Labor Commissioner’s finding of a violation to post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation due and owing before filing a writ of mandate. The bond is forfeited to the employee to whom wages are owed if payment is not made to the employee where ordered by the Court, if the writ of mandate is dismissed, or if a settlement agreement is executed.SB 306: Retaliation Actions – Complaints, Administrative ReviewLabor Code § 98.7 has been amended to give the Division of Labor Standards Enforcement authority to initiate an investigation into an employer whom it suspects has discharged or discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction without first receiving a complaint. This includes suspected retaliation occurring during the course of the adjudication of a wage claim, a field inspection, or certain immigration-related threats. Once an investigation is complete, a report will be provided to the Labor Commissioner or a designee. The Labor Commissioner may hold an investigative hearing to fully establish the facts. Labor Code § 98.7 now also permits the Labor Commissioner, during an investigation, to petition the superior court for temporary or preliminary injunctive relief. If an employee has been discharged or otherwise faced adverse action for raising a retaliation claim, the court must order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee was discharged or otherwise retaliated against. However, temporary injunctive relief does not prohibit an employer from terminating an employee for conduct unrelated to the claim of retaliation.SB 396: Employment – Gender Identity, Gender Expression, And Sexual OrientationGovernment Code § 12950.1 was amended to require that the mandatory two-hour sexual harassment training for supervisors include training inclusive of harassment based on gender identity, gender expression, and sexual orientation. The training must include examples of harassment based on gender identity, gender expression, and sexual orientation, and must be presented by trainers with knowledge and expertise in those areas. This training must be completed within six months of a supervisor assuming the supervisory positon, and employers must provide this training to all supervisors at least once every two years. In addition, Government Code § 12950 was amended to require employers to post a poster developed by the DFEH regarding transgender rights in a prominent and accessible location in the workplace.Under Trump, The DOL Is Shifting Its Regulations To Favor EmployersThe federal Department of Labor (DOL) under the Trump administration is busy withdrawing Obama-era administrative guidance and proposing new rules in a pro-employer shift within the DOL. For example, in June, the DOL withdrew 2015 and 2016 informal guidance on joint employment and independent contractor status. The informal guidance made it easier to find that two or more entities were joint employers under the FLSA and therefore liable to employees for FLSA violations and also increased the likelihood that independent contractors were misclassified and therefore entitled to wages under the FLSA.The Overtime Final Rule, which was published by the Obama DOL in May 2016, would have raised the minimum salary requirement for exempt employees under the FLSA to $47,476. Then in August of that year, the Rule was invalidated by the U.S. District Court for exceeding the DOL’s authority by setting any salary threshold. In July of this year, the Trump DOL issued a request for information regarding what changes should be made to the Rule. The DOL plans to appeal the decision on the lack of authority to set a salary threshold and then move to stay the action and engage in further rulemaking to determine what the minimum salary for exempt employees should be. It is expected that the minimum salary level will be significantly lower than the amount in the 2016 Rule.On December 5, the DOL issued a Notice of Proposed Rulemaking regarding tip pooling. The new rule would allow employers to share tips amongst employees who do not traditionally receive direct tips such as cooks and dishwashers. The proposed rule applies to employers who pay tipped employees the federal minimum wage and do not take advantage of a tip credit under the Fair Labor Standards Act (FLSA).NLRB Taking Advantage Of Its Republican Majority Before Chairman Miscimarra’s Term EndsThe National Labor Relations Board (NLRB) is having a busy end of the year, dismantling Obama-era board decisions seen as pro-union and pro-employee. The Republicans are taking advantage of their first majority status in a decade through the end of the year when Republican Chairman Phillip Miscimarra’s term ends. It is not known who President Trump will nominate to be the next chairman. Until a new chairman joins the board, there is likely to be a stalemate with a two-Republican, two-Democrat Board.The Board’s recent activity includes 3-2 decisions on party lines overturning the 2015 Browning-Ferris decision, which set forth a more expansive test for joint employment; the 2011 Specialty Healthcare decision allowing micro-units of workers to organize; the 2004 Lutheran Heritage Village-Livonia decision regarding the standard to be applied in evaluating whether employee handbook policies violate the National Labor Relations Act by infringing on employees’ rights, which had been used in recent years to invalidate numerous employers’ policies; and the 2016 DuPont ruling requiring employers to bargain with unions before implementing changes to employment conditions even where those changes are consistent with the employers’ past practice.In addition, in September 2017, Peter Robb was confirmed as the new general counsel to the Board. It is expected that he will also play a key role in overturning Obama-era board decisions and instituting a pro-management shift within the board under the Trump administration based on the complaints he chooses to issue and the general counsel memoranda he issues to regional directors regarding his positions on current labor issues.ConclusionWith these conflicting forces at work, it promises to be another busy year in employment law in 2018.

The California Legislature and The Trump Administration: Different Directions

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The California Legislature and The Trump Administration: Different Directions

The Era of Comprehensive Federal PFAS Regulation Has Arrived:  Industry Braces First for EPA’s Expansive Retroactive Reporting and Recordkeeping Requirement 

elcblog-december- 2017

It was another busy year in the California Legislature with regard to employment and labor issues. Of particular note for California employers are the new laws 

Increasing digitalisation of the workplace means that many routine activities nowadays entail the processing of employees’ personal information. Sophisticated data management tools allow for greater efficiency and help to identify and contain business risks. What often follows is harmonisation of HR data platforms within an employer’s group of companies, seeking to deliver consistent and seamless HR management across business units and national borders.With the growth of workplace digitalisation, employers need to ensure that their policies and procedures adapt to a growing awareness amongst the general population of privacy rights and to expanding regulatory requirements and oversight, especially in the European Union (EU). As of 25 May 2018, privacy law within the EU will be governed by the EU General Data Protection Regulation (GDPR). This framework updates and modernises the principles enshrined in the 20-yearold EU Data Protection Directive, and will be directly applicable in all EU Member States. Notably, the GDPR provides for an unprecedented sanctions framework, with fines of up to 4% or EUR 20 million of an undertaking, whichever is higher.In this article, we consider three key areas that can become data privacy minefields for employers in the EU:<ol><li>Conducting background checks, or vetting staff or potential hires: in the EU, in-depth screening is only permitted on an exceptional basis;</li><li>Monitoring IT equipment and workplace correspondence, both on a systematic basis and as a one-off (e.g., into suspected misconduct): getting it wrong can be costly, as EU laws can require significant works-council involvement and may result in criminal liability in some cases; and</li><li>Transferring employee data outside the EU: where an employer seeks to integrate its workforce planning tools with affiliates in the EU, it will need to be mindful of the restrictions on data transfers under the EU privacy regime.</li></ol>The UK will leave the EU in March 2019. In the sidebar adjacent, we consider the impact of Brexit on UK employee data privacy rights and wider UK employment law.Pre-Employment Screening It has become common practice for employers to check the internet for publicly available content about job candidates. However, just because information is publicly available does not mean an employer should review it. A recently published opinion by the Article 29 Working Party (WP29), an advisory body made up of a representative from the data protection authority of each EU Member State, provides useful guidance in determining whether employers may use information collected online. As far as social media platforms are concerned, a distinction is made between social media for mainly private purposes and social media for mainly professional purposes. The WP29 stresses that employers should not assume that merely because an individual’s social media profile is publicly available they are then allowed to use that information for their own purposes. Much depends on the source of the information. Employers will typically have a legitimate interest in reviewing candidates’ profiles on LinkedIn and other sites, which contain information relevant to the candidates’ professional qualifications. Social media such as Facebook and Twitter, on the other hand, contains private content that is typically irrelevant to the candidate’s application and is therefore offlimits. Searches on public websites and via search engines such as Google serve a legitimate interest, if they are limited to information relevant to a candidate’s position.Information provided by the candidate during the application process may be used, and the employer is free to verify this information and contact references provided by the candidate for this purpose. However, this process should again focus on relevant information and should not be used as an opportunity to gather unrelated information, such as on the candidate’s private life or any health issues (save where the information is necessary in order to make reasonable adjustments to the recruitment or interview process for disabled candidates) or union activities. In the UK, questions about health (other than information necessary to make reasonable adjustments for disabled candidates) would only be defensible after an offer of employment has been made.Whether information is relevant will depend on the specific position in question. For example, checks on a candidate’s financial probity or criminal background checks may be appropriate for some positions, e.g., to screen delivery staff for past road traffic offences. For other positions, such as in securities trading, they may even be required by local law. For most jobs, however, a criminal background check will not be relevant and is prohibited. Similarly, drug tests will only be permitted on an exceptional basis, e.g., where the position requires the employee to operate heavy machinery or vehicles.The “relevance test” will also inform the applicable retention periods for data collected in the recruitment process. Personal information collected during the recruitment process should generally be deleted as soon as it becomes clear that an offer of employment will not be made or is not accepted by the candidate. If data is required to justify the employer’s rejection of a candidate, however, it may be kept for a longer period of time (not longer than the applicable statute of limitations). If employers wish to retain the candidate’s information for future vacancies, they should obtain explicit consent (e.g., in their rejection notification). Consent is also required if, within a group of companies, affiliates intend to share candidates’ information.Candidates must receive fair notice about the processing of their data. Art. 14 GDPR provides a list of specific items to include in this notice and requires that notice be given, at the latest, one month after the processing. For reasons of transparency, it is advisable to provide notice beforehand by way of a privacy policy or similar document posted on the recruitment page. Where employers have established uniform recruitment policies or staff questionnaires, these may require works-council approval in some EU jurisdictions. Moreover, the employer’s data protection officer, if there is one, may have to be involved when conducting background checks.Employee MonitoringMonitoring employees has become standard practice in many workplaces, and the rapid adoption of new information technologies provides employers with an ever-increasing visibility over employee behaviours. At the same time, the reasons for monitoring can vary greatly. In some industries, monitoring may serve to ensure workers’ safety in hazardous working environments or even be required by industry-specific regulation (e.g., in the financial services sector). Employers may monitor to check the smooth operation of their IT systems. For many employers, however, the primary motive for monitoring is to check employees’ performance, detect misconduct, or ensure compliance with specific company policies and procedures.Under the EU’s privacy regime, any processing of personal information is permitted only if either the individual consents or the employer can rely on a basis stipulated under statutory privacy law. The WP29 has, however, consistently stressed that employers should not rely on employees’ consent to workplace monitoring (with few exceptions). This is because of the inequality in bargaining power between employer and employee, which calls into question whether employees can ever validly consent. The WP29 reasons that employees are in a situation of dependence and might fear adverse consequences if they refuse to consent. Monitoring may be permissible where it is required in order to perform the employment contract or serves legitimate interests of the employer, provided the monitoring is strictly necessary for a legitimate purpose and complies with the “principles of proportionality and subsidiarity.” The “proportionality test” requires the employer to balance its business needs with the counterweighing privacy interests of the affected employees, taking into account, inter alia, the degree of invasiveness and potential consequences for the employee’s private life. “Subsidiarity” means that the employer should first investigate other, less invasive means to protect its interests. For example, monitoring of every online activity of the employees is usually disproportionate. The WP29 stresses that prevention should be given much more weight than detection, as the employer’s interests are better served by preventing IT misuse through technical measures (such as blocking certain websites) than by expending resources in detecting misuse.These principles have been confirmed by a recent judgement of the European Court of Human Rights in Strasbourg (ECHR – not to be confused with the Court of Justice of the European Union in Luxembourg). In the case before the Court, a Romanian employee, Mr. Bărbulescu, had used his workplace email account to exchange private messages with his fiancée and his brother – and was subsequently dismissed. His employer had recorded his messages and introduced the transcriptions as evidence in the dismissal procedure. While the employer had expressly forbidden personal use of company resources, it was unclear whether he had been given adequate notice of this policy. The Court ruled that the monitoring had breached Mr. Bărbulescu’s right to respect for private life per Article 8 of the European Convention on Human Rights. The Court recurred to the principles of proportionality and subsidiarity and held that the employer had failed to substantiate a legitimate reason for the monitoring and take into account potential repercussions for the employee (his fiancée had subsequently decided to end their relationship). The Court also stressed the need for proper notification, in particular of (i) the possibility that the employer may take measures to monitor communications, (ii) the implementation of such measures, and (iii) the extent of the monitoring (including whether it applies only to the flow or additionally to the content of communications and any limits in volume/portion, time, space, and number of individuals accessing the monitoring results).As an example of good practice, monitoring should be subject to a prior privacy impact assessment. This vetting mechanism has been introduced under Art. 35 GDPR for high-risk processing activities and requires the employer to, inter alia, identify safeguards and security measures for the privacy risks arising from the anticipated processing (irrespective of the technology concerned or the capabilities the technology possesses). In addition, the conditions of potential monitoring should be transparently set out in a privacy policy, and employers should introduce acceptable-use policies, outlining the permissible use of the company’s IT equipment, as well as its limits. In some countries, such as Germany, the introduction of technology capable of monitoring (even if it is not intended for that purpose) must also be negotiated with the works council. More generally, employers should be aware that the monitoring of employee communication is subject to country-specific regulation, in particular by local telecommunications and telemedia law. These regulations may impose even more stringent requirements, including criminal liability for violations of telecommunication secrecy.Transfer of Employee DataMost US employers with UK operations are likely already aware of the potential barriers to data flows between the EU and the US In 2015, the once commonly used mechanism, known as the Safe Harbor regime (under which organisations receiving data in the US self-certified adherence to certain data privacy principles), became defunct after a ruling by the Court of Justice of the European Union that the regime did not provide adequate protection to personal information transferred from the EU. Whilst a replacement framework and self-certification regime (the “Privacy Shield”) has now been approved by the European Commission, most multinational employers deal with cross-border transfers of employee data using “binding corporate rules” (if the transfer is intra-group) or European Commission–form “standard contractual clauses” (if the transfer is between the employer and a third party, and one of them is based outside the EU).As part of preparation for GDPR, multinational employers should audit what employee data is transferred outside the EU and the purpose for which it is transferred and ensure that, to the extent such transfers are necessary, data is transferred securely and adequate mechanisms are in place (such as those described above) allowing the non-EU recipient to receive the data.Employers are also well advised to keep an eye on Brexit negotiations to see what approach will be taken to UK data privacy standards post-Brexit. The UK will be subject to the GDPR prior to Brexit, but it remains to be seen whether it will be deemed to provide adequate protection post-Brexit to receive employee personal information from the EU.ConclusionWorkplace digitalisation presents employers with vastly growing opportunities but brings along an array of new compliance risks as well. Within the European Union, the processing of employee data is subject to a number of stringent tests set out under statutory law. Most often, employees cannot waive the protection afforded to them by the law. Consequently, while employers are required to provide transparent notice, they will typically not be able to rely on employees’ consent for their data processing.As the GDPR enters into force on 25 May 2018, introducing an unprecedented catalogue of financial sanctions, the stakes will be rising considerably. Employers are advised to review their processing operations, and implement any necessary changes, well before this deadline. Depending on the type of data processed, employers may be required to consult their data privacy officer (if there is one) and conduct a prior privacy impact assessment. Under local law in various EU Member States (such as Germany), the processing may also trigger works-council codetermination rights and even potential criminal liability, in particular where employee data falls under the protection of local telecommunication and telemedia law. The latter will typically be the case if the employer introduces technology that permits the monitoring of workplace communication, via phone, email, or other devices.

Hot Topics For Multinational Employers: Privacy In The Workplace, The EU General Data Protection Regulation, And Brexit

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For more than two decades, Hanno has advised and represented leading domestic and international corporations in a wide variety of industries, including technology, consumer products, automotive, and 

Hanno Timner

Hanno Timner is a partner in the Berlin office and head of the Employment and Labor practice group in Germany. He advises and represents national and international employers in all labor law issues and disputes.

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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Associate

Lara Sirimanne is an associate in the London employment practice of Morrison & Foerster. She advises domestic and international clients on the full spectrum of both contentious and non-contentious emp

Lara M. King

Lara King

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Hot Topics For Multinational Employers: Privacy In The Workplace, The EU General Data Protection Regulation, And Brexit

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Increasing digitalisation of the workplace means that many routine activities nowadays entail the processing of employees’ personal information. Sophisticated d

It was only a couple of years ago, on March 27, 2015, that a jury rejected Ellen Pao’s gender discrimination claims and rendered a defense verdict in favor of her former employer, a prominent Silicon Valley venture capital firm. The Ellen Pao case, and the media attention it received, helped place concerns about bias and gender pay equity in the spotlight in Silicon Valley. Now issues of bias and pay equity in the workplace are again taking center stage in Silicon Valley, with almost daily media reports about Silicon Valley’s gender problem, and a continuing list of companies and notable Silicon Valley figures being taken to task with allegations of inappropriate conduct towards women, including but not limited to Binary Capital co-founder Justin Caldbeck and 500 Startups founder Dave McClure. Also high-profile lawsuits recently have been filed, including against UploadVR with allegations of a sex room in the office, and against Google for violation of the California Equal Pay Act.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt97378393f2fd47ac/62731608deee7329767e764c/171009-employment-law-commentary.pdf" target="_blank">newsletter</a>.

Workplace Bias and Gender Pay Equity in Silicon Valley

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

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Workplace Bias and Gender Pay Equity in Silicon Valley

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It was only a couple of years ago, on March 27, 2015, that a jury rejected Ellen Pao’s gender discrimination claims and rendered a defense verdict in favor of h

The Third Circuit has recently taken steps to resolve inconsistent precedent regarding the standard for pleading hostile work environment harassment. In Castleberry v. STI Group, decided in July, the Third Circuit held for the first time that a single, isolated offensive comment could give rise to liability for harassment. Although Supreme Court precedent has long provided for the possibility that a lone incident can give rise to a harassment claim, in practice, employers have been able to defend these claims with success on the basis that isolated actions are rarely, if ever, severe enough to alter the conditions of employment. Castleberry reminds employers that harassment claims based on single statements should not be presumed insignificant; instead, they should be evaluated in their full factual context.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt00964c8f6493e301/627316090d4d8e1d7f10f272/170907-employment-law-commentary.pdf">newsletter</a>.

Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

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Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

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The Third Circuit has recently taken steps to resolve inconsistent precedent regarding the standard for pleading hostile work environment harassment. In Castleb

Some prayers go unheard; others go to the Equal Employment and Opportunity Commission. Recently, employers in three states have faced actions from Muslim employees demanding increased accommodation for prayer in the workplace. In May, an employer in Minnesota refused to schedule prayer breaks requested by employees, and subsequently fired some workers who refused to comply with the work schedule. In response, the Council on American-Islamic Relations (CAIR) filed a complaint with the Equal Employment and Opportunity Commission (EEOC). Similar situations have recently arisen with employers in Wisconsin and Colorado.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt289da1d9dde7e5be/6273160e4886af2aa2be106e/170726-employment-law-commentary.pdf">newsletter</a>.

Let Us Pray: The Challenges of Accommodating Muslim Prayer in the Workplace

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Let Us Pray: The Challenges of Accommodating Muslim Prayer in the Workplace

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Some prayers go unheard; others go to the Equal Employment and Opportunity Commission. Recently, employers in three states have faced actions from Muslim employ

A California jury recently awarded a $3.3 million verdict to a California Department of Transportation (“CALTRANS”) employee who alleged a variety of disability-related claims involving CALTRANS’s failure to properly accommodate his allergy to certain scents and his supervisor’s and co-workers’ retaliatory actions in light of his requests for accommodation. The basis of the award was failure to accommodate the plaintiff’s disability – his allergic reaction to certain scents – and retaliation under the Americans with Disabilities Act (“ADA”) and a similar state law. While it may be easy to dismiss such claims as insignificant or overwrought, the jury awards and settlements described below make clear that these claims can be serious and must be addressed.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt039af4d340e65018/62730eee5f7b601eaaebcd8a/170628-employment-law-commentary.pdf" target="_blank">newsletter</a>.

When One Person's Scent Is Another Person's Disability

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When One Person's Scent Is Another Person's Disability

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A California jury recently awarded a $3.3 million verdict to a California Department of Transportation (“CALTRANS”) employee who alleged a variety of disability

It took 124 years, but the California Supreme Court in Mendoza v. Nordstrom, Inc., No. S224611, 2017 WL 1833143 (Cal. May 8, 2017) finally addressed in detail California’s day-of-rest statutes (Labor Code Sections 551, et seq.) originally enacted in 1893. Such a seemingly simple statute: “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” No one knew this could be so complicated.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltbc750b22d773f8ae/62730eef220ab5285f518e4b/170525-employment-law-commentary.pdf">newsletter</a>.

“On The Seventh Day He (She) Rested” . . . Maybe

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“On The Seventh Day He (She) Rested” . . . Maybe

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It took 124 years, but the California Supreme Court in Mendoza v. Nordstrom, Inc., No. S224611, 2017 WL 1833143 (Cal. May 8, 2017) finally addressed in detail C

The Economic Policy Institute has reported that, in 2016, as many as 4 million workers nationwide wanted but were unable to obtain full-time work. While some have debated these numbers, the City of San Jose, California, has attempted to tackle the issue with a voter-enacted ordinance that imposes new restrictions and obligations on when employers can hire additional workers to meet their needs.While San Jose is currently one of the only cities in the nation with such a law, it is unlikely that this status will last for long. San Francisco passed a narrower ordinance in 2014, the Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance, applicable to large retail chains that employ 20 or more individuals in the City of San Francisco and have 20 or more locations worldwide. A legislator in California has already followed San Jose’s lead and introduced proposed legislation.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltf4f152bd2a437f24/62730f988e09542a15b7dc88/170503-employment-law-commentary.pdf">newsletter</a>.

San Jose Thinks It Knows The Way

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San Jose Thinks It Knows The Way

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The Economic Policy Institute has reported that, in 2016, as many as 4 million workers nationwide wanted but were unable to obtain full-time work. While some ha

The Place: A car wash in Los AngelesThe Time: The 1970sThe Scene: A busy afternoon at the car wash. Immigration agents burst onto the property in search of undocumented workers. The cashier—wife of the manager— yells frantically into the public address mic, “¡La migra! Immigration!” Soapy cars stand abandoned on the chain as employees scatter. Some get away. Others are not so lucky. They are detained and promptly deported. Even the deported employees, however, return to work within a week, easily reentering the U.S. through its porous southern border.1[The curtain drops.]Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt62efb6535d49855f/62730f9e5f7b601eaaebcd8e/170406-employment-law-commentary.pdf">newsletter</a>.

The Don(ald) Of A New Era: Are Workplace Immigration Raids On The Horizon?

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The Don(ald) Of A New Era: Are Workplace Immigration Raids On The Horizon?

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The Place: A car wash in Los Angeles
The Time: The 1970s
The Scene: A busy afternoon at the car wash. Immigration agents burst onto the property in search of un

Although strides have been made over the past few decades to achieve pay equity for women and other protected classes of individuals, the facts (and the sentiment expressed in the above quote) make clear that there is still a ways to go.Indeed, new numbers from the U.S. Bureau of Labor Statistics reveal that women’s weekly earnings in California average approximately 15% below those of similarly situated male workers. The gap equates to an approximate loss of $7,000 per woman annually— the largest it has been since 2002. In fact, the gender pay gap grew in 31 states and in Washington, D.C. Nationally, women’s wages dropped to 81.1% of men’s wages in 2015—down from 82.5% in 2014.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt6002a49e7c04373d/62730fa0a1a1dd2aa9f6c798/170307-elc.pdf">newsletter</a>.

The Movement For Equal Pay In The Workplace: Progressive State Laws Carry The Torch

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The Movement For Equal Pay In The Workplace: Progressive State Laws Carry The Torch

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Although strides have been made over the past few decades to achieve pay equity for women and other protected classes of individuals, the facts (and the sentime