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 co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters 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, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

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Co-Chair, Global Employment and Labor Practice

Partner

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.

Andrew Turnbull

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

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

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

Hot Topics For Multinational Employers: Privacy In The Workplace, The EU General Data Protection Regulation, And Brexit | MoFo ELC | Latest Employment Law Developments and Commentary

Hanno Timner

Annabel Gillham

Lara M. King

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.

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