Minimize Litigation Risks When Using Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the second article in a two-part series on biometric technology and the law. The first article explains the legal requirements for using biometrics in the workplace. This article provides tips on avoiding liability.

Under various state laws, the potentially extensive legal exposure to individual and class-action lawsuits stemming from the collection, storage and use of biometric data should give employers pause before they implement biometric-data programs in the workplace.

Companies that acquire and use biometric data face the thorny task of complying with an intricate web of regulations governing the use of that data—a task that will only become more difficult as more states adopt their own versions of biometric data privacy legislation.

A new wave of biometric-data lawsuits, particularly in Illinois, will likely build as a result of the Illinois Supreme Court’s Jan. 25 ruling in Rosenbach v. Six Flags Entertainment Corp., No. 123186, which determined that plaintiffs can pursue claims for mere technical violations of Illinois’ Biometric Information Privacy Act (BIPA), even absent any actual injury or harm. Many lawsuits have not centered on challenges to employers’ use of biometric data but instead have focused on the collection of such data.

Fortunately, employers can implement several best practices to minimize the risk of becoming embroiled in litigation stemming from the use of workers’ biometric data. Continue reading “Minimize Litigation Risks When Using Biometric Data”

Learn the Rules on Employers’ Use of Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the first article in a two-part series on biometric technology and the law. This article explains the legal requirements for using biometrics in the workplace. The second article provides tips on avoiding liability.

With the recent rapid advancement of biometric technology, more employers have begun relying on biometric data to accomplish a range of objectives in the workplace.

According to a 2018 survey by Gartner, 6 percent of U.S., European and Canadian companies surveyed tracked workers using biometrics.

Employers who use biometrics can achieve real economic and security benefits, but the practice comes with litigation risks.

Three states—Illinois, Texas and Washington—have enacted laws regulating biometric data to protect employee privacy concerns. An individual’s biometric information is not a secure identifying feature once it has been compromised. Continue reading “Learn the Rules on Employers’ Use of Biometric Data”

The Uncertain Future of Gender Pay Reporting

Mark Blondman and Emery Gullickson Richards

As you may recall, in 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a Rule requiring private employers with more than 100 workers to include certain pay data, based on gender, race, and ethnicity, on their Form EEO-1s. The Rule, which purportedly was aimed at encouraging employers to ensure that compensation was directly related to jobs being performed and as a means of combating pay disparities, was slated to go into effect with the filing of EEO-1 forms in March 2018.

Under President Trump, the Office of Management and Budget (“OMB”) blocked enforcement of the Rule and announced that decision in August 2017.

On March 4, 2019, Judge Tanya Chutkan of the United States District Court for the District of Columbia, in response to a 2017 lawsuit filed by advocacy groups including the National Women’s Law Center, issued an Opinion and Order directing that the OMB reinstate the EEOC’s 2016 pay reporting Rule. Continue reading “The Uncertain Future of Gender Pay Reporting”

It’s Back!! New DOL Salary Threshold Rule Is on the Doorstep!

Jason E. Reisman

Just when you thought it was safe to go back in the water, the U.S. Department of Labor (“DOL”) reappears to address an issue that has most American employers on edge: How far will it expand the scope of who is eligible for overtime pay? After taking what seems like forever, the Trump DOL—despite the government shutdown—has apparently now completed its long-awaited revised new rule to reset the minimum salary threshold for employees subject to the Fair Labor Standards Act’s white collar exemptions.

We all remember the Obama DOL’s effort to expand overtime eligibility to four million currently-exempt employees by increasing the salary minimum by more than double, to $47,476 (which was blocked by a federal judge in Texas). The real question for now is, what has the Trump DOL decided is the “correct” new salary level? All signs point to a figure in the low to mid-$30,000s. We should find out very soon.

For now, sources are reporting that the finalized proposed new rule is about to be submitted (maybe today) to the White House’s Office of Information and Regulatory Affairs (“OIRA”) for review. This is the first step in the process before the proposed rule is released to the public for comment. Though the federal government is currently shut down, the White House is working. The last agenda issued by the DOL stated that this new rule would be released in March, so they seem to be on track for that.

So … stay tuned— “Same Bat time, same Bat channel!” More to come.

Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors

Andrew A. Napier

On December 6, the Philadelphia City Council passed two pieces of legislation that already are being touted as altering the landscape for workers in the city, especially those in the service industry.

“Fair Workweek” Bill

The “Fair Workweek” Bill, introduced by Councilwoman Helen Gym in June, applies to large chain businesses with more than 250 employees in the retail, food, or hospitality sectors, and at least 30 locations across the country or state (“Covered Employers”). If signed it would go into effect on January 1, 2020, and will require Covered Employers to give employees (including full-time, part-time, and seasonal and temporary workers) who work within the geographical boundaries of the City, 10 days’ advance notice of their work schedule. The amount of advance notice will increase to 14 days beginning January 1, 2021. An employee may decline, without penalty, any shift that occurs less than nine hours after the end of a shift, and if the employee agrees to work the shift, the employer must pay the employee an extra $40 per shift. Continue reading “Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors”

Requesting a Background Check to Make an Employment Decision? Read This First.

Thomas J. Szymanski

The Fair Credit Reporting Act (“FCRA”) provides federally-imposed limitations on all employers who seek information from a Consumer Reporting Agency about an applicant or employee for use in making an employment decision, such as a hiring or promotion. The FCRA contains specific notice, authorization, and reporting requirements related to obtaining a Consumer Report, including credit reports and criminal background checks, and potentially taking an adverse employment action based on that information.

Requirements before you request a Consumer Report: Continue reading “Requesting a Background Check to Make an Employment Decision? Read This First.”

Goodbye Uber Class Action, Hello Individual Arbitration

Natalie Alameddine and Caroline Powell Donelan

Last week, in a significant blow to claims that gig economy workers are entitled to pursue disputes on a class or collective basis, and possibly whether those workers will be able to establish that they are employees and not independent contractors, a three-judge panel of the Ninth Circuit Court of Appeals unanimously decertified a class of 240,000 Uber drivers. The decision in O’Conner v. Uber is a victory for the ride-share company, which will now be able to defend claims that it misclassified employees as independent contractors on an individual basis—one arbitration at a time.

For the past five years, there has been an ongoing and contentious dispute over whether Uber drivers (and similarly, Lyft and other ride-share drivers) are independent contractors or employees. If the workers are deemed to be employees, Uber could face hundreds of millions of dollars in alleged California labor code violations and business expense claims. To combat the possibility of having to litigate this issue on a class-wide basis, Uber entered into arbitration agreements with each driver, requiring that any driver’s claims be arbitrated and that each case had to be arbitrated individually (rather than as a class action). Continue reading “Goodbye Uber Class Action, Hello Individual Arbitration”