When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Start Spreading the News – EDNY Denies Motion to Dismiss Website Accessibility Complaint.”

Following is an excerpt:

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing. Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public. …

Read the full post here.

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 workforce, to protecting confidential information in an increasingly vulnerable digital world, to managing resources across less and less predictable borders, and to harnessing (while tempering the power of) intelligence exhibited by machines.

The time is now (if not yesterday!) to develop a long-term strategy to help navigate these current issues and anticipate the challenges and opportunities of the future.

The articles in this Take 5 include:

  1. Embracing the Gig Economy: You’re Already a Player in It (Yes, You!)
  2. AI in the Workplace: The Time to Develop a Workplace Strategy Is Now
  1. Best Practices to Manage the Risk of Data Breach Caused by Your Employees and Other Insiders
  1. News Media Companies Entering the Non-Compete Game
  1. Employers Dodge Bullet in Recent U.S. Supreme Court Travel Ban Order

Read the full Take 5 online or download the PDF.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits.”

Following is an excerpt:

Today marks the 27th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.  The Court rejected Five Guys’ arguments.  Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III).  …

Read the full post here.

Our colleagues , at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the technology industry: “DFEH Publishes Materials to Assist Employers With Handling Harassment Allegations.”

Following is an excerpt:

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force. This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available. The guide addresses all forms of workplace harassment, including harassment based on sex. …

Read the full post here.

Our colleagues , and Corben J. Green at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “The Department of Consumer Affairs Publishes Rules Governing FIFA.”

Following is an excerpt:

On May 15th, the Freelance Isn’t Free Act (“FIFA”) went into effect in New York City. The Department of Consumer Affairs (“DCA”) recently issued guidelines to help employers comply with the law. …

As previously explained, FIFA requires parties that retain freelance workers to provide any service where the contract between them has a value of $800 or more to reduce their agreement to a written contract. Under the DCA guidelines, the value of the contract includes “the reasonable value of all actual or anticipated services, costs for supplies, and any other expenses under the contract.” …

Read the full post here.

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 financial performance of the Payroll, Human Resources and Benefits functions of his clients through advanced technology, process improvement and auditing. In his spare time, he researches new and exciting ways to use Big HR Data to address broader business issues vis-à-vis predictive analytics.

MC: How do you define Big HR Data?

HG: In my humble opinion, Big HR Data applies to the leveraging of “wide and “deep” HR data assets in conjunction with non-HR specific enterprise data as well as external, third party data. Examples of non-HR specific data include: sales, production output, production quality, customer satisfaction surveys and financial results. Examples of third party data include: consumer (e.g. household composition, home ownership, shopping, interests and hobbies), census, health rankings and competitors (i.e., the local labor market).

The key idea is to leverage these collective data sets to:

1) Better understand what has happened (analytics), and

2) Identify what is likely to happen (predictive analytics).

From a business perspective, Big HR Data can be applied to virtually any HR functional area such as talent management, employee engagement, and health benefits.

For example, Big HR Data can address important talent management questions, such as which candidate is likely to succeed? Or, which employees pose a “flight risk?” Regarding employee engagement, Big HR Data can be utilized to identify which employees are more likely to have higher levels of productivity and conversely, which employees are likely to have lower levels of productivity. This information can then be applied to creating budget estimates, for example. Lastly, in the context of health benefits, Big HR Data can be leveraged to identify which employees are likely to have ineligible dependents.  

MC: Which types of “golden nuggets” might an organization uncover by mining Big HR data sets?

HG: “Golden nuggets?!” Can I get some fries with that? In all seriousness, “golden nuggets” can be found in many places. To get the best yield, forensic, or CSI-type tactics need to be employed. Leveraging all data, including written information stored in filing cabinets needs to be included.

Example 1 – High Turnover

Case-in-point, while performing a turnover analysis for a manufacturing client, we initially zeroed in on locations with the highest turnover. Interestingly, it turns out 24/7 plants had the highest turnover. Upon further review, we discovered new hires working the “graveyard shift” had the highest resignation rates. The average “newly resigned” employee lasted only 8 weeks. Naturally, HQ sensed the likely suspects were either environmental, the “job” or local management. This was not the case, it turned out the root cause was never documented in any system.

So, what was the culprit? Drum roll please…During the exit interviews it was learned that these “newly resigned” employees NEVER worked the “graveyard shift” before; these employees had no idea how different the “graveyard shift was from their own day-to-day routine and the impact it would have on their family and social life. While each of these same people as candidates needed a job, they didn’t think through the lifestyle difference between working a traditional 9 to 5 job and a “graveyard shift” job. To remedy the problem, management improved the selection process which included adding a “do you have “graveyard shift”” experience question, as well as the inclusion of probing related questions during the interview process.

Net, net – management recognized the value and importance of a richer HR dataset. Moreover, the new owner (which was a private equity firm) enjoyed the productivity and financial improvements derived from these improvements.

Example 2 – Lowering Healthcare Costs

Another “golden nugget” example pertains to reducing healthcare costs (yes, that’s not a typo – Big HR Data can be used to save money in a transparent, immediate and recurring manner!). For example, a large employer with several thousand employees decided to confirm the eligibility of the dependents enrolled in the medical plan. In spite of the compelling ROI, management sensed the audit would be disruptive and costly. Rather than require 100% of the employees to submit supporting documentation, management sensed there would be a way to leverage its HR and claims data. Essentially, this data would be used to audit only those that made most sense to audit.

To bring the vision to life, we were hired to calculate a risk score for each employee and to stratify the population. Inputs to the risk score included two major categories 1) Demographic outliers and 2) Dependents whose medical/Rx claim costs were higher than the respective per capita costs for their dependent category (spouse, domestic partner, young adult, child). External, third party consumer data was also integrated. Employees representing all geographies, divisions and departments were included. “True” random employees were also added to balance the model. The results were stunning. Approximately 90% of the savings were realized simply by auditing 25% of the population. The “icing on the cake” was an interesting discovery. It turns out about 30 of the spouses had gastric bypasses. Ironically, gastric bypasses were excluded from the plan design. At $30,000 each, this drove the savings even higher!

Net, net – management became a strong proponent for Big HR Data.

Example 3 – Insider Threats

Cybercrime continues to be a material threat for ALL employers. Basically, no firm is safe – even from its own employees! While employers have increasingly strengthened physical controls, fortified processes, updated data security programs, and provided employees with requisite training as an effort to mitigate enterprise risk, cybercrime continues to be an area where employers simply continue to feel exposed.

To that end, the C-suite and the Board are under continuous pressure to make sure tangible and intangible assets are not compromised. Ironically, the same employees who are touted as the “number one asset” are under scrutiny. Here’s where leveraging human capital data assets in conjunction with enterprise as well as external, third party data comes in real handy!

First, please allow me to illustrate a realistic scenario. John, a loyal 12-year veteran of the company did not get the promotion he was counting on. Needless to say he didn’t get the big bonus either. In the short 12 years he worked there, John always got top reviews and got good bonuses. The word on the street was he was a strong contender. While his historical performance was solid, his recent results were off. John attributed his recent performance to stronger competitors and management’s unwillingness to make deals.

Much to everyone’s surprise, John abruptly resigned. To exacerbate the issue, not only did he take valuable clients with him (and millions of dollars in business), but he also took trade secrets and all the pertinent client data files. The sad thing is, part of the problem could have been avoided. Here’s how Big HR Data could have tipped off management that John was at-risk.

Using external legal data, management would have seen that John filed for bankruptcy earlier in the year. He also had a DUI just a few months earlier. A pattern analysis of his network usage also would have shown that he accessed folders that he never previously accessed. Moreover, his visits to social media sites, such as Linkedin and job sites including Indeed would have tipped management off that John was potentially, looking for a job.

Again, the use of data could have lessened the severity of what became a big issue. Imagine a world where Big HR Data in conjunction with legal data, network usage data and website visit data co-existed! While it would not change John’s promotability, management could have leveraged the data to then take appropriate measures.

MC: What types of systems might an organization need to organize and cross check their data to confirm it is accurate?

HG: Hmmmmm, those are two great questions! Let’s first explore the systems an organization needs. The answer varies based upon 1) the business question you’re trying to answer, and 2) the data that’s available. At a minimum, we only require a minimum amount of indicative data, such as employee name, address, birth date, hire date, department and title. We can then append third party data to get a more comprehensive understanding of each employee’s demographics, interests and even legal history (legal history includes arrests, bankruptcies, liens and judgments). Other HR and non-HR data as listed below can also provide value.

  • Applicant (e.g. previous addresses, work history)
  • Skills
  • Training
  • Time & attendance
  • Performance
  • Medical Claims (self-insured plans only)
  • Pharmacy Claims (self-insured plans only)
  • Workers’ Compensation Claims
  • Disability Claims
  • Retirement Elections
  • Stock Purchase Plan Activity
  • Voluntary Insurance Elections
  • 401(K) Loans
  • Production (e.g. sales, units produced, quality metrics)
  • Exit Interviews

While this may appear to be a lot of data, that’s the point! Big HR Data is by default, BIG. It is only when disparate data sets are linked that give real gems the opportunity to “pop.”   Ultimately, management will learn which data types have positive and negative affinities; this will enable management to only work with data that provides value.

The second question pertains to data quality. As everyone knows, it’s critical the foundation of the house is solid before the first and second floors are built. The same applies here. The first thing that comes to mind is the use of internal controls. Since many different datasets are likely to be involved, management should first take an inventory of each dataset. This includes taking a point-in-time record count by business unit and/or geography. This will help establish data compatibility. In the event there’s a data gap, either a replacement data set should be created or the gap needs to be accounted for in the analysis.

For employers that don’t have the requisite controls in place, “approximate math” could be used. For example, an employer embarks on a workforce planning exercise and the goal of the project is to identify future workforce gaps. A critical input is skills inventory data. A quick computation reveals the average employee has 10 different skills.   Management could then determine whether 10 skills “makes sense.” If it does, great! If not, management would need the employees to update their respective skills before the analysis started. Please note, in this scenario it would also be prudent for management to review sample employee skill inventories to make sure they’re current.

MC: How has the use of Big HR Data by organizations changed over the last five years and how do you see it being most useful to an organization going forward?

HG: Big HR Data itself has not really changed at all. What has changed is the mindset of the HR community. Whereas 5 years ago most analyses were limited to data that was sourced from one system due to system constraints as well as limited IT resources, today power HR users can do their own analyses by using intuitive data visualization tools.

Going forward expanded HR data sets will continue to be leveraged by best practice organizations. Given the pervasive use of analytics in every part of the enterprise, it will be “data or die” as the C-suite will no longer accept we don’t have the data or we don’t have the technology to access the data. Net, net – Big HR Data will continue to play a critical role in helping employers maintain a best practice human capital ecosystem.

Editor’s Note:  Proper analysis of Big HR Data can assist organizations in achieving cost-savings across a myriad of programs and departments.  It can also provide great insights into the composition and actions of the workforce itself.  As technology, and its usage, advances, it will be important for employers to monitor and comply with changing laws and regulations as well as ensure that any personally identifiable information is secured and protected.  Employers should also take care that they are not violating applicable laws, such as employment-related or privacy laws, when obtaining data and implementing decisions based on data analytics.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility. In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

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 and include information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. Notably, the definition of “consumer report” also includes oral or other communications, and is not limited to written communications.

If your business uses background screening reports to assist with hiring decisions, remember, the FCRA requires the following steps:

  1. Prior to obtaining a background screening report about a prospective employee, employers must inform the person that they plan to get the report, and obtain the individual’s written permission allowing the employer to do so.
  2. If the background screening report discloses information that may cause the employer to not hire the prospective employee, the employer must notify the individual of the report’s findings and provide them with a copy of the report. The employer must then give the prospective employee a sufficient amount of time to review the report so they can contest any findings that might be incorrect. Although the law is silent on what constitutes “sufficient time,” the FTC has generally found that five business days satisfies this requirement.
  3. If the employer eventually chooses not to hire the prospective employee based in whole or in part on information provided in the background screening report, the employer must give notice to the prospective employee that says they were not hired due at least in part to the result of the background screening report.

One of the biggest sources of litigation with respect to background check reports recently has been over the disclosure and authorization requirements. The disclosure must be in a clear and conspicuous format that prospective employees will understand. Employers must also get the prospective employee’s written permission prior to getting a background screening report. Per the FCRA, employers may either separate the disclosure and authorization or combine the two into a single document.

The disclosure must be in a stand-alone format, meaning it cannot be in an employment application or a part of a lengthy onboarding packet. Employers can include some minor additional information in the disclosure, such as a brief description of the nature of consumer reports, but only if such information does not confuse or detract prospective employees from the substance of the disclosure.

The FTC guidance provides some examples of the types of provisions that should not be in a disclosure or authorization request:

  • Employers should not include language that purports to release them from liability for conducting, getting, or using a background screening report.
  • Employers should not include a certification by the prospective employee that all information in his or her job application is accurate.
  • Employers should remove any language that purports to require prospective employees to acknowledge that the employer’s hiring decisions are based on legitimate non-discriminatory reasons.
  • Employers should remove overly broad authorizations that allow the release of information that the FCRA does not allow to be included in a background screen report – for example, bankruptcies that are more than 10 years old.

According to the FTC guidance, a disclosure statement (including a combined disclosure and authorization) containing complex legal jargon, additional acknowledgements, or waivers of liability makes it more difficult for prospective employees to understand the main purpose of such documents. Additionally, including other acknowledgements or releases of liability is beyond the scope of what the FCRA permits in the disclosure statement, and the inclusion of such provisions may cause employers to run afoul of the statute. If employers have additional waivers, authorizations, or disclosures that they wish to give to prospective employees, they should present them in a separate document rather than in the FCRA disclosure and authorization.

Failure to comply with the FCRA is not without consequences. Indeed, employers who do not act in accordance with the FCRA are subject to civil penalties under the statute. Willful non-compliance may result in damages up to $1000, court determined punitive damages, and the recovery of costs and reasonable attorney’s fees in successful actions to enforce liability.  The FCRA also contemplates negligent noncompliance.  Employers who are negligently non-compliant with the FCRA can be liable for any actual damages sustained by the consumer, as well as the recovery of costs and reasonable attorney’s fees in successful actions to enforce liability.

Employers who conduct background screenings on potential employees should be mindful of the FTC’s continued enforcement efforts with respect to the FCRA.

Growing a company from the ground-up can be immensely rewarding but also challenging.  With the proliferation of start-up companies in this Digital Age, the question is often asked how a business can grow from a handful of like-minded individuals with a common goal while maintaining its culture and staying in compliance with a myriad of laws that impact its operations and workplace.  On May 17, 2017, Epstein Becker Green’s TMT service team was delighted to co-host with WeWork Dumbo Heights (Prospect): When Jeans Meet Suits: Keeping Your Startup Culture & Staying Compliant with Workplace Laws.  Panelists Jonathan Truppman (Casper), Adam Greenberg (Warby Parker) and AJ Pires (Alloy Development) shared with us their insights as to what builds a best-in-class workplace.  My takeaways from the discussion are as follows:

  • Hire Carefully – It’s important to get to know potential hires, their character and personality, and whether they will share the common goals and mentality of the organization.  Specific skills for the job can be taught.  Try not to hire too quickly, if possible, before you have a sense that the person will fit in with the company culture. Once the organization has its defined culture and values, it will become easier to identify like-minded individuals to hire.
  • It’s OK to Hire the Over Talented – When trying to fill positions, even entry-level, think long-term.  The people that you bring into the organization should be people that you’d like to see grow with the company and move up.  They may be overqualified at first, but give them the skills and training they need to progress even further.  Nurture their ambition and their talents.
  • Create an Open Door – Create an atmosphere where employees feel comfortable speaking with senior management.  Not only will employees appreciate the feedback and guidance, but also, open communication can serve to address any employee concerns early on.  Empower employees to make good decisions with integrity which can help stave off workplace compliance issues.
  • Infuse Social Responsibility – There are many ways to give back to the community and instill philanthropic goals in employees.  Foster a do-good mentality, sponsor programs and allow employees time from work to volunteer.  Not only does this help the community, but it builds strong bonds and a shared vision among employees in the workplace.
  • Engage Advisors When Needed – In the ordinary course, it may become necessary to seek outside advisors, especially as the business grows.  It is helpful to do a gut check periodically to assess whether there are any changes in the law that can impact the business or workplace.
  • Maintain Levity – Try to have fun along the way!

It certainly makes a lot of sense to build a company culture of transparency and inclusion, where talents are recognized and promoted, and giving back is a shared value.  What is good for the human heart is most certainly good for the bottom line.