Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

New York City Investigation of Hiring Practices

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My colleague Laura A. Stutz  at Epstein Becker Green has a Retail Labor and Employment Law blog post that will be of interest to employers doing business in New York City: “New York City Investigation of Hiring Practices:.

Following is an excerpt:

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Read the full original post here.

Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay

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My colleagues Michael S. Kun and Jeffrey H. Ruzal at Epstein Becker Green has a Wage and Hour Defense blog post that will be of interest to all technology, media, and telecommunications employers: “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”Clock

Following is an excerpt:

More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 hours in a workweek – or receiving salary increases in order that their exempt status will continue.

Read the full original post here.

Five EEOC Initiatives to Monitor on the Agency’s Golden Anniversary

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My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter.   In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5 here.

Mayor Signs NYC Ban-the-Box Law

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On Monday, June 29, 2015, Mayor Bill de Blasio signed into law the bill passed by the New York City Council “banning-the-box.” The law goes into effect on Tuesday, October 27, 2015. As discussed in our earlier advisory, the ban-the-box movement removes from an employment application the “box” that requests criminal conviction history. New York City’s law also imposes additional requirements upon the employer when making an adverse employment decision on the basis of criminal conviction history.

Lessons from the Sony Hack: The Importance of a Data Breach Response Plan

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In a decision emphasizing the need for employers to focus on data security, on June 15, 2015, the U.S. District Court for the Central District of California refused to dismiss a lawsuit filed by nine former employees of Sony Pictures Entertainment who allege the company’s negligence caused a massive data breach.  Corona v. Sony Pictures Entm’t, Inc., Case No. 2:14-cv-09600 (C.D. Ca. June 15, 2015).

In November 2014, Sony was the victim of a cyber-attack, which has widely been reported as perpetrated by North Korean hackers in relation for “The Interview,” a Sony comedy parodying Kim Jong Un.  According to the complaint in this case, the hackers stole nearly 100 terabytes of data, including sensitive personal information, such as financial, medical, and other personally identifiable information (“PII”), of at least 15,000 current and former Sony employees.  The hackers then posted this information on the internet and used it to threaten individual victims and their families.  The nine named plaintiffs purchased identity protection services and insurance, as well as took other measures, to protect their compromised PII.

The plaintiffs filed a class action lawsuit alleging Sony failed to implement and maintain adequate security measures to protect its employees’ PII, and then improperly waited at least three weeks to notify plaintiffs that their PII had been compromised.  The plaintiffs asserted claims of negligence, breach of implied contract, and statutory violations of California, Virginia, and Colorado law.

Sony moved to dismiss the complaint.  First, Sony argued that plaintiffs lacked standing because they had not alleged a current injury or a threatened injury that is currently impending.  The court disagreed, concluding that the allegations of increased risk of future identity theft sufficiently established certainly impending injury.

Sony then challenged the viability of each claim.  While the court dismissed certain of the claims, the court allowed the plaintiffs to proceed with their claims of negligence and violations of California’s Confidentiality of Medical Information Act and Unfair Competition Law.  Key to the court’s decision on the negligence claim were its findings that (a) the costs plaintiffs incurred related to credit monitoring, identity theft protection, and penalties resulting from frozen credit constituted a cognizable injury, and (b) an exception to the economic loss doctrine applied because the parties had a “special relationship” whereby plaintiffs had to provide their PII to Sony in order to get paid and receive benefits.

Regarding the Confidentiality of Medical Information Act claim, the court found sufficient the allegations that Sony failed to maintain the confidentiality of the plaintiff’s medical information, which Sony has admitted included HIPAA-protected health information, and failed to institute reasonable safeguards to protect that information from unauthorized use.

While it remains to be seen whether the plaintiffs will prevail on any of their theories of recovery against Sony, this matter should be a lesson to companies that have not implemented appropriate data security measures more than just the loss of proprietary information.  Employers have a duty to protect the personal sensitive information that they obtain from their employees, and the failure to take preventative measures may result in legal claims, reduction in employee morale, and loss of reputation.

Employers should begin by auditing their information technology infrastructure and network for security vulnerabilities.  Any such audit should be done under the supervision of counsel to maintain the privilege and confidentiality of the audit.  Based on that audit, employers should take steps to mitigate the vulnerabilities found to a reasonable and appropriate level given the threats to the organization.  The Sony breach, like nearly all recent breaches, had an element of social engineering. To protect against these types of attacks employers should also train their workforces on information security best practices.  Finally, employers should be prepared to respond to breaches when they occur.  Employers should formulate and implement a breach response plan to minimize the time from the discovery of the compromise to the reporting of the incident to affected persons.

If a data breach does occur, the company should immediately execute the data breach response plan and quickly investigate the nature and scope of the data breach.  A forensic review should be conducted using an IT specialist that can trace the origins of the breach.  Employees and anyone affected should be notified so that they may take appropriate steps to prevent or limit identity theft and other damages.  Employers also should consider proactively notifying the police to work with the local cyber-crimes unit, as well as filing a civil suit against the perpetrator(s) to obtain injunctive relief and reduce further damage.  Appropriate legal counsel can assist in pursuing these options.

NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity

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My colleague Nancy L. Gunzenhauser at Epstein Becker Green has a Management Memo blog post that will be of interest to many of our readers: “NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity. ”

Following is an excerpt:

While we have been reminding readers of the fact that  the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently  a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice (“ULP”)  hearing based on a charge filed by a teacher at New York City’s prestigious Dalton School that should serve as an object lesson for employers in all non-union businesses.

Read the full original post here.

Massachusetts AGO Provides Safe Harbor on New Sick Leave Law

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My colleagues Nancy L. Gunzenhauser and Barry A. Guryan published a Health Employment And Labor Law blog post that will be of interest to many of our readers: “Massachusetts AGO Provides Safe Harbor on New Sick Leave Law.”

Following is an excerpt:

On May 1, 2015, we reported on proposed regulations to the Massachusetts paid sick leave law, which becomes effective on July 1, 2015.  The regulations have not yet been adopted, and in light of the uncertainty about many provisions of the law, the Massachusetts Attorney General’s Office has issued a “Safe Harbor for Employers with Existing Paid Time Off Policies.”  Under the safe harbor, any employer with a paid time off policy in existence as of May 1, 2015, which provides employees with the right to use at least 30 hours of paid time off per year, will be deemed in compliance with the new sick leave law.  The safe harbor will expire on December 31 of this year, and as of January 1, 2016, all covered employers will be required to comply with the provisions of the new law. Our November 10, 2014 Advisory summarizes the law’s provisions and requirements.

Read the full blog post here.

DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations

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My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”

Following is an excerpt:

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016.  This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA.  While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.

Read the full original post here.

First Challenge to NLRB’s New Election Rules Dismissed – Rules Held Constitutional

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My colleague, Steven M. Swirsky, published a Management Memo post that will be of interest to many of our readers: “First Challenge to NLRB’s New Election Rules Dismissed –Rules Held Constitutional.”

Following is an excerpt:

One of two lawsuits challenging the National Labor Relations Board’s authority to issue the expedited election rules that took effect on April 14, 2015, has now been dismissed by Judge Robert L. Pitman of the United States District Court for the Western District of Texas in Austin.  In his 27 page decision, Judge Pitman that the plaintiffs, including Associated Builders and Contractors of Texas and the National Federation of Independent Businessmen, could not establish that the NLRB’s December 14, 2014 rule “Representation – Case Procedures; Final Rule,” (the “New Rule”) should be declared by the Court to be invalid under the Administrative Procedures Act, that the New Rule violated employers’ rights under the National Labor Relations Act (the “Act”) by compelling them to provide unions with employees’ names and information before an election is directed or agreed to, by denying employers of their rights to a hearing prior to an election and by interfering with employers’ rights to free speech as provided for in Section 8(c) of the Act.

Read the full blog post here.

Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections

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My colleague, Adam C. Abrahms, published a Management Memo blog post that will be of interest to many of our readers: “Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections.”

Following is an excerpt:

A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days.  Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.

More Union Petitions Under Ambush Elections Rule

Between April 14 (the day the rules when into effect) and May 14, 280 representation cases were filed.  This was a 17% increase in filings over the same period in 2014 and a 32% increase from the last month under the old rules.  While some of the increase is likely attributable to unions strategically waiting for the new rules to go into effect, employers can certainly expect increased union activities and more petitions.

Read the full blog post here.

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