The Seventh Circuit significantly narrowed the EEOC’s broad interpretation of the American with Disabilities Act (ADA) last month. The court held that the ADA does not cover discrimination based on a future impairment.

The Seventh Circuit determined that the “regarded as having” prong of the ADA does not extend to applicants who are rejected due to an employer’s concerns about future disabilities. Shell v. Burlington N. Santa Fe Ry Co. The Seventh Circuit joins the Eighth, Ninth, Tenth, and Eleventh Circuits in holding that the present tense “having” in the ADA does not include the future tense “will have.” The facts here involved an obese applicant, and not an applicant with an existing predisposition, so its practical impact may be narrower than at first blush.

Continue Reading From The Seventh Circuit: Future Disabilities Not Protected Under The ADA

Co-working or shared working spaces are being leveraged by every level of the workforce to keep up with the volatile and ever-changing business landscape. From gig workers and freelancers to project teams, modern workforce needs are being met through the short-term nature, reduced costs, and diverse and agile environments that these innovative workplaces offer.

I am pleased to share with you, Making Co-Working Work, the second piece in the Space for Agility series which explores the many risk factors employers need to be to be aware of before considering co-working solutions as part of their real estate strategy.

Please click here to view this exciting report.

Hoping for 20/20 vision in the new year? Join us as we bring clarity to employment and compensation laws in Illinois, the US and abroad. This afternoon event will be held in our Chicago office on Wednesday, Dec 4.

We will start with a discussion of emerging trends in advancing Diversity & Inclusion goals followed by key updates and developments on Illinois employment law, immigration law and domestic and global compensation and benefits.

Following the program, we invite you to join us at our 9th Annual Wine and Chocolate Tasting hosted by BakerWomen and the ACC Chicago Chapter. This event begins at 5:30 pm at RPM on the Water. Transportation will be provided.

Key Takeaways From The Event Emerging trends in advancing D&I goals

• Illinois employment law year in review and predictions for the year ahead
• The latest on employment-based immigration law developments
• Developments and trends impacting domestic and global compensation and benefits

Click here to view the invitation and guest speakers.

The California Consumer Privacy Act (CCPA) takes effect on January 1, 2020 and imposes a wide range of new requirements for the collection and processing of personal data of California residents.

Under the CCPA, “consumer” is defined broadly as a natural person who is a California resident. Assembly Bill 25, signed into law on October 11, 2019, provides a temporary and limited reprieve for employee data by establishing an exemption to the CCPA’s requirements to provide rights of access, correction and opt-out of sale of personal information for California residents who are job applicants, employees, owners, directors, officers, medical staff or contractors (collectively, “employees”). The exemption applies only to the extent that an employee’s personal information is collected and used solely within the context of such individual’s role as an employee and only until December 31, 2020.

Even with this exemption, the following two CCPA requirements apply as of January 1, 2020:

  1. At or before the point of collection of any personal information, companies must notify California resident employees of (i) the categories of their personal information collected, and (ii) the purposes for which such personal information will be used.
    • With respect to (i), collection of new categories of personal information requires a new, revised notice to be provided to the employee.
    • With regard to (ii), companies may not use personal information for any additional purpose not specified in the initial notice without first disclosing such use to the employee and obtaining the employee’s express consent to such additional use.
  2. California resident employees have a private right of action if their non-encrypted or non-redacted personal information is affected by a data breach via unauthorized access and exfiltration, theft, or disclosure, where the breach is caused by a company’s failure to implement and maintain reasonable security procedures.

Employer Takeaways

Companies with employees in California will need to adopt procedures to provide a CCPA-compliant privacy notice to such employees on January 1, 2020, with a look back to January 1, 2019 – i.e., companies must disclose how they collected and used employee information in 2019.

Such notices will need to be broad enough to capture all of the specific categories of data that companies need to collect with regard to the employment relationship and all applicable compensation and benefits arrangements. For example, to the extent that companies are granting equity awards to California resident employees, such privacy notices will need to include any specific categories of employee personal information needed to make and administer such grants. Because the notice must be provided “at or before” the point of collection of the data, it will generally need to be provided in advance of the issuance of equity awards or other benefits. However, companies should include in equity award agreements or other compensation and benefits plan agreements an acknowledgment that employees have received the privacy notice required by CCPA.

As noted, the limited exemption under AB25 will be valid for only one year and expires on January 1, 2021. After the expiration of the exemption, companies will be subject to the full requirements of the CCPA with respect to employee data.

For details on the full scope of the CCPA, please refer to the following alert published by Lothar Determann.

The D.C. Circuit Court of Appeals decision in First Student Inc. v. NLRB suggests the judicially-created “perfectly clear” successorship standard to determine whether a company inherited its predecessor’s bargaining agreement is ripe for a challenge.

A divided panel concluded that under the National Labor Relations Act, the “perfectly clear” successor standard applied to a successor employer in order to prevent employees from being “lulled” into a false sense of security or into not looking for other work.

The Sept. 3 decision is a stark example of the need for attorneys to anticipate and to shape arguments based on the sea change occurring in America’s courts despite the “current” state of the law.

Click here to continue reading.

This article was originally published in Bloomberg Law.

Despite the hubbub, a new California law purportedly banning mandatory employment arbitration agreements does not completely change the game, and federal law still allows employers to use such agreements.

On October 10, 2019, Governor Newsom signed AB 51 (to be codified as Cal. Lab. Code § 432.6(c)). The new law on its face prohibits employers from requiring California employees to arbitrate certain employment disputes, even if the employees are given the option of opting out of arbitration. More ominously, AB 51 criminalizes retaliation against employees who refuse arbitration, among other remedies.

Continue Reading Slow Your Roll: Federal Law Preempts California’s Latest Assault On Employment Arbitration Agreements

Companies can be more confident that liability under the National Labor Relations Act will not flow from the misclassification of its workforce alone, thanks to a recent NLRB decision. Baker McKenzie attorneys call this welcome news for companies, but say they still must look at workforce relationships and properly classify independent contractors.

In a much anticipated decision, the National Labor Relations Board recently ruled that misclassifying employees as independent contractors does not violate the National Labor Relations Act. The Velox Express Inc. and Jeannie Edge decision brings clarity to companies that rely on independent contractor relationships to grow and drive their businesses.

Click here to review the key takeaways for employers and the board’s rationale behind its decision.

This Article was originally posted in Bloomberg.

Companies with operations in California can exhale slightly, with the Ninth Circuit Court of Appeal and another California appellate court recently concluding, separately, that the rigid “ABC Test” established in Dynamex v. The Superior Court of Los Angeles County does not apply in the joint employer context.

Continue Reading Courts Confirm Martinez – Not Dynamex – Applies To Joint Employer Claims In California

Join us for a lunch briefing on November 12 in Palo Alto as we explore the top 5 trends impacting multinational employers in Latin America.

Hear from leading practitioners in 5 key LATAM jurisdictions – Argentina, Brazil, Colombia, Mexico and Venezuela – as we address these key developments:

1. Tips for operating under the new leadership in Argentina, Brazil, Colombia, Mexico and Venezuela
2. Navigating significant labor reform in Argentina, Brazil and Mexico
3. Managing a modern workforce, from contingent workers to outsourcing service models
4. Addressing the gender pay gap, including gender pay legislation and expectations
5. Complying with changes in termination and anti-harassment legislation

Click here to view the invitation.

Ten years from now there may well be no more Employee Retirement Income Security Act (ERISA) class actions. The law, like the rest of life, is not immune from disruptive innovations. In our own lifetime, we have seen disruptive innovations from chemical photography to digital photography, from personal computers to smart phones, and from snail mail to Instagram. Just as Brown v. Board of Education, 349 U.S. 483, 495 (1954) created a legal sea change by finding racial discrimination in public education unconstitutional, a series of recent U.S. Supreme Court decisions has established another legal sea change: class action lawsuits are no longer necessary. These new cases taken together indicate that ERISA plan sponsors can kill off all future ERISA class actions if they adopt mandatory arbitration provisions with class action waivers.

Read more here.

This article was originally published in The Recorder.