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With special thanks to our data privacy colleagues Jonathan Tam and Helena Engfeldt for their contributions.

It’s increasingly common for employers to use social media during the hiring process. The temptation is obvious — there’s a wealth of potentially useful information about applicants available online. It’s not unreasonable to wish to use social media to understand a prospective employee’s professional qualifications and skills to determine whether they fit with the criteria for the position. It’s no wonder that a recent survey from The Harris Poll finds that seventy-one percent of US hiring decision-makers agree that looking at candidates’ social media profiles is an effective way to screen applicants. Furthermore, 70% believe employers should screen all applicants’ social media profiles, while the majority (67%) say they use social networking sites to research potential job candidates.

Despite the potential benefits, this sleuthing causes significant heart burn for employment and privacy lawyers and HR professionals. While social media can be a fruitful way to find and recruit candidates, a minefield of legal risks appear when companies use social media during the screening process.

Potential Risks

  • Discrimination! Federal, state and local anti-discrimination laws prohibit discrimination in hiring based on a prospective employee’s protected class. The danger of researching applicants using social media is that you may become aware that the applicant belongs to a protected category – something that through the general application process you otherwise would be unaware of. And, you can’t put the genie back in the bottle. If a recruiter or hiring manager has accessed this data, it is difficult to prove that they were not influenced by it in their hiring decision.

Continue Reading Guardrails For Using Social Media During The Hiring Process

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We are pleased to share a recent Washington Post article, “Ask Help Desk: What should I do when my job gives me lousy tech?” with quotes from Mike Brewer. We’ve all been there or at least know someone who has: You land that coveted job only to get handed disappointing — and maybe even outdated — technology tools that pale in comparison to your own personal devices. Now what?

Click here to view the article.

This article was originally published in The Washington Post.

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Illinois employers have been waiting for answers on two important questions regarding the Illinois Biometric Information Privacy Act (BIPA):

  1. Whether the Illinois Workers’ Compensation Act (the Compensation Act) preempts BIPA statutory damages, and
  2. Whether BIPA claims accrue each time a person’s biometric information is scanned or transmitted without informed consent–or just the first time.

The Illinois Supreme Court just answered one of those questions. On February 3, 2022, the Illinois Supreme Court ruled 7-0 in McDonald v. Symphony Bronzeville Park LLC  (2022 IL 126511) that the exclusivity provisions of the Compensation Act do not bar claims for statutory damages under BIPA. (See our prior Client Alert here for a refresher on BIPA.)

The Court’s Ruling

In reaching its ruling, the Court focused on the purpose of the Compensation Act, the differences in the types of injuries addressed by the Compensation Act and BIPA, and BIPA’s plain language.

The loss of the ability to maintain privacy rights is not a compensable injury under the Compensation Act

The case rested on the fourth exception to the Compensation Act’s exclusive remedy provision: whether the plaintiff’s and the putative class’s alleged injuries were “compensable” under (i.e. are covered by) the Compensation Act.

The Court said the purpose of the Compensation Act is to establish a balance by imposing no-fault liability upon the employer and statutory limitations upon the amount of an employee’s recovery when an employee is injured arising out of and in the course of employment. The Court emphasized that the Compensation Act is a remedial statute with the main purpose of providing financial protection for injured workers until they can return to the workforce, with a compensation schedule corresponding to death, injuries to specific body parts, and the inability to work-all injuries affecting an employee’s capacity to perform employment-related duties.

The Court found that injuries caused by violations of BIPA are instead personal and societal in nature, and drew a line between the loss of an individual’s ability to maintain privacy rights from the physical and psychological work injuries compensable under the Compensation Act, stressing that BIPA’s prophylactic measures prevent the compromise of an individual’s biometrics.

BIPA came later, recognized employment, and provided a private right of action

The Court also looked to the fact that BIPA postdates the Compensation Act, and in the text of BIPA itself, mentions its application in the employment context-but does not differentiate how non-employee and employee claims are treated, with one exception: permissible methods of obtaining consent before the collection of biometric data. BIPA defines the required precollection “written release” as “informed written consent” for non-employees, but in the employment context, “a release executed by an employee as a condition of employment.” (See 740 ILCS 14/10.) The Court found the legislature’s contemplation of the employment context and decision to grant to all BIPA plaintiffs-including employees-a private right of action to be further evidence that the legislature did not intend BIPA claims to go before the Workers’ Compensation Commission.

This is what the legislature intended

The defendant (and amici in support) highlighted several issues for the Court:

  • The Court’s construction means that Illinois employers will have greater protection against significant employee workplace injuries (whether physical, emotional, or mental), but no protection from workplace injuries stemming from technical BIPA violations
  • When workplace injuries can be cleverly characterized to evade the broad sweep of the Compensation Act’s exclusivity provisions, the protections provided to Illinois employers will quickly erode, and Illinois employers will face a flood of litigation
  • The Court’s decision will lead to financially ruinous class actions, and a patchwork landscape of varying results given rapidly evolving BIPA case law

The Court’s response: the legislature intended substantial consequences as a result of BIPA violations, and whether a different balance should be struck is for the legislature to decide.

The Next Big BIPA Question

Employers are still waiting on an answer of whether BIPA claims accrue each time a person’s biometric information is scanned or transmitted without informed consent, or just the first time. This question is teed up to be reviewed by the Illinois Supreme Court in Cothron v. White Castle System, Inc. On December 20, 2021, the Seventh Circuit certified the question to the Illinois Supreme Court to determine the issue of whether claims asserted under Sections 15(b) (collection of biometric data) and 15(d) (disclosure of biometric data) of BIPA accrue only once–when biometric data is initially collected or disclosed–or each time biometric data is collected or disclosed. Employers should watch for the Illinois Supreme Court’s decision in Cothron because the result could heavily impact a statute of limitations defense, as well as damages calculations under BIPA.

What Should Employers Do Now?

Courts across Illinois paused a plethora of BIPA lawsuits, waiting for the Illinois Supreme Court to weigh in on the question of whether BIPA damages were preempted by the Compensation Act. Those lawsuits will now move forward, and employers can expect employees with allegations of BIPA violations to be emboldened by the more lucrative damages under BIPA which will now definitively rule the day.

Illinois employers and businesses that collect or use biometric identifiers or biometric information should be sure to update and maintain policies and procedures to ensure unequivocal compliance with BIPA, including:

  • Drafting and communicating a clear written policy that describes the purpose and terms of the collection and storage of biometric information;
  • Notifying employees (and consumers) in writing before any biometric information is collected;
  • Obtaining written consent from the data subject; and
  • Making publicly available a written “retention schedule and guidelines” the company uses for permanently destroying biometric identifiers and biometric information within a certain time period.

(See our earlier posts on BIPA here, here, here and here.) For assistance preparing compliant policies, forms and practices, and to reduce your company’s risk of being subject to a BIPA action, contact your Baker McKenzie attorney.

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Special thanks to Lothar Determann, Helena Engfeldt, Jonathan Tam, Andrea Tovar, and Vivian Tse.

2022 is looking to be an unprecedented year for California companies’ privacy law obligations. The California Privacy Rights Act (CPRA) takes effect on January 1, 2023 with a twelve-month look-back that also applies to the personal data of employees and business contacts. The new California Privacy Protection Agency is preparing regulations that will sit on top of existing rules from the California Attorney General. Meanwhile, the California Legislature is enacting privacy laws even though it has not repealed or streamlined any of the myriad California privacy laws that continue to apply in addition to the California Consumer Privacy Act (CCPA).

With this virtual seminar series, privacy specialists from Baker McKenzie offices in California want to help prepare you for new and upcoming privacy compliance tasks in various business areas, in collaboration with other practice groups.

Our first session on Tuesday, March 1 from noon to 1 pm Pacific will focus on privacy law compliance in the HR context, where the California Privacy Rights Act (CPRA) brings major changes in dynamics effective January 1, 2023 with a 12-month look-back to 2022. With colleagues from our employment law practice group, we will provide practical guidance on:

  • preparation for CPRA compliance,
  • data access/deletion requests from employees and contractors,
  • record retention/deletion,
  • processing of vaccination and other health information,
  • background checks,
  • interviews,
  • investigations,
  • treatment of contractors and employees of Professional Employer Organizations (PEOs)/Employers of Records (EORs),
  • and more!

Click here to register.

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Special thanks to Guest Contributor Harry Valetk.

In early May, private sector employers in New York will face new disclosure requirements for electronic monitoring of employees.  Beginning May 7, 2022, New York will join Connecticut and Delaware among the states that now require employers to provide written notice to new hires who are subject to electronic monitoring.  These new disclosure requirements come after Governor Kathy Hochul signed into law amendments to Civil Rights Chapter 6, Article 5, Section 52-C*2.

Here’s what New York employers need to know now about the new law:

Who is covered under the law? All private employers with a place of business in New York regardless of size. “Employer” is defined as any individual, corporation, partnership, firm, or association with a place of business in the state (not including the state or any political subdivision of the state).

What does the law require?  In practice, the law requires employers to (1) provide employees with a notice of electronic monitoring, (2) obtain proof of acknowledgement, and (3) prominently post the notice for all to see.

Continue Reading New York’s New Electronic Monitoring Disclosure Law Requires Action Before May

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On January 13, 2022, the Supreme Court of the United States (SCOTUS) issued an opinion ruling that the parties challenging OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard, which required private US employers with 100 or more employees to mandate vaccination or regular testing of their workforce, were likely to succeed on the merits of their claim that OSHA lacked the authority to impose the standard. On the same day, the Court also issued an opinion upholding the Centers for Medicare and Medicaid Services vaccine mandate, requiring healthcare workers at facilities regulated by Medicare and Medicaid to be fully vaccinated.

In this video, our Labor and Employment lawyers discuss what the Court’s two opinions tell us about the likely fate of the Biden Administration’s federal contractor vaccine mandate.

Click here to watch the video.

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As we previously reported, at the end of last year, the New York city council passed a bill to require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City. It was enacted on January 15, 2022 after Mayor Eric Adams took no action on the bill. As a result, New York City employers must disclose expected salary ranges on internal and external job listings beginning May 15, 2022.

While we believe the city will issue guidance on the law closer to the effective date, here are several things employers should keep in mind:

  • Multi-state employers should consider a national policy for salary transparency given the growing number of jurisdictions requiring salary transparency (for more information, refer to our previous post).
  • Set (or review) standard salary ranges for all existing positions. Along those lines, consider an internal audit with counsel of current employee salaries to make sure there are no significant discrepancies or inequities. Equal pay claims are on the rise and this is a good time to review how you determine salary and the relevant factors you rely on for determining compensation.
  • Develop a process for consistently publishing information in connection with internal and external job postings.
  • Beyond just job postings, review any other related human resources documents (e.g., job descriptions and compensation policies) to ensure that any salary representations are consistent with the salary range set for a given position.
  • Last, be sure to train supervisors, managers, compliance personnel and human resources professionals on the implications of the new law.

Please contact your Baker McKenzie employment lawyer for help complying with this new obligation.

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Special thanks to guest contributors, Yindi Gesinde and Monica Kurnatowska.

As I&D rises to the top of the corporate agenda, how can organizations bridge the disconnects between workplace functions in order to accelerate progress? This episode explores the findings and shares practical takeaways from our Mind the Gap series, which examines the role that compliance and employment leaders, in particular, play in strengthening corporate I&D strategies.

For additional insights, we invite you to read Part 1 and 2 of our Mind the Gap series.

Please click here for the podcast.

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On January 13, 2022, the Supreme Court issued two opinions in which the Court (1) blocked enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS) and (2) allowed enforcement of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for healthcare workers at Medicare and Medicaid covered facilities.

While the federal contractor vaccination mandate (Contractor Mandate) was not the subject of those cases, the Supreme Court’s decisions hint at its future–and it’s grim.

The Contractor Mandate is Currently Stayed

The Contractor Mandate is currently stayed by multiple district courts. And the 6th Circuit and the 11th Circuit have both declined to lift those stays. There are two more appeals pending in the 5th and 8th Circuits. Resolution of these cases will take months. In the meantime, the federal government cannot enforce the Contractor Mandate. Therefore, the likeliest option is that the Supreme Court simply lets the various Contractor Mandate cases run their course.

However, there’s always a chance the Supreme Court decides to intervene and hear appeals on the stays – as it did with the OSHA ETS and CMS vaccine mandate. If this happens, the Contractor Mandate is in trouble. Here’s why.

The OSHA Opinion (NFIB v. OSHA): OSHA Is Not Authorized to Regulate Public Health

First, an overview of the Supreme Court’s OSHA opinion. On January 13, 2022, the conservative majority of Supreme Court ruled that the parties challenging the ETS are likely to succeed on the merits of their claim that OSHA lacked statutory authority to impose the ETS. The majority held that while OSHA is empowered by statute to regulate workplace safety standards and occupational hazards, it has not been authorized to regulate “public health standards” and “the hazards of daily life” more broadly.

The Court acknowledged that the pandemic is a risk that occurs in many workplaces, but distinguished COVID-19 from the typical occupational hazard because it has spread everywhere “that people gather.” The Court characterized COVID-19 as a “kind of universal risk” that is no different from the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” The Court concluded that permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while working would significantly expand OSHA’s regulatory purview.

The Court said that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” After reviewing the statutory text, the Court found that the Occupational Safety and Health Act (OSH Act) does not clearly authorize OSHA to regulate public health through the ETS. The Court further noted that OSHA has “never before adopted a broad public health regulation…addressing a threat that is untethered…from the workplace.” Put simply, the Court decided that the ETS is not “what the agency was built for.”

Continue Reading What Does the Supreme Court’s Stay of the OSHA ETS Mean for the Federal Contractor Vaccine Mandate? Don’t Count On It Surviving Judicial Review.

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We are pleased to share a recent Corp! article, “Supreme Court Stops Biden’s Vaccine Mandate for Large Businesses,” with quotes from Robin Samuel. The U.S. Supreme Court stopped the Biden administration from imposing COVID-19 vaccine mandates, which called for businesses with 100 or more employees to require workers be vaccinated against COVID-19 or provide a weekly negative test. The court’s ruling leaves in place Biden’s ability to require vaccines for most health care workers.

Click here to view the article.

This article was originally published in Corp!.