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Beyond chocolate and conversation hearts, many employers are looking to seriously woo employees this Valentine’s Day, and throughout the year. In fact, for most companies, retaining and attracting the best talent in today’s fierce labor market is a top priority in 2022.

The Great Resignation (aka the “Big Quit”) is in full effect. According to a Bureau of Labor Statistics (BLS) report released January 4, 2022, a record 4.5 million Americans left their jobs in November, with the number of private sector quits (not government or farm employees) hitting 4.3 million-and approximately 20 million people quit their jobs in the second half of 2021. And, there are just 0.62 unemployed job seekers for each available job, according to another BLS report. The forecast: employees are likely to continue to have substantial bargaining power in 2022. So employers who want to hold onto the great employees they have-and perhaps take their shot at hiring more- may need to look for creative ways to up the ante this year.

Here are five things employers are doing to retain and hire the best of the best talent in 2022.

  1. Embracing remote work–because it allows for the flexibility some employees are demanding

Remote work was indispensable for many in the early pandemic. Now, having the option to work remotely-at least some of the time-is becoming an expectation. According to a survey of 209,000 people in 190 countries by BCG, 89% of people expect their jobs to be partly remote after the pandemic ends. Hybrid work is now a norm for many employers as they pivot to navigate the ebb and flow of COVID variants, allowing for the flexibility required by the pandemic and meeting employee desires. According to Forbes, in a recent survey of US workers who can work remotely, 74% would prefer to spend at least one day in an office environment post-COVID-19, with 30% looking to work from a space outside the home two or three days per week. Digital nomad visas-which allow employees to work in a different country after an application and a fee-are another lure for some employees who can successfully work away from the office.

What does this mean for employers? In industries and for positions where working remotely is a viable option, employers who don’t offer employees the ability to work remotely-at least part of the week-may see employees jump ship to employers who do. In one report published by Owl Labs, companies that provide the option for remote work have 25% lower turnover than companies that don’t.

But remote work isn’t as easy as just telling employees they can work from home-or wherever they want.

Employers must consider a myriad of employment law issues before crafting any type of remote work policy, including:

  • How employers will define “remote” for their workforce–i.e. temporary “short stints,” permanent remote work, hybrid work (working some days from home and others in the office), or some combination of these. And, employers must decide whether employees will be permitted to work remotely only from home, or remotely from anywhere.
  • “Guardrails” or boundaries for the workforce. Often, this is based on factors such as whether the company already has a legal presence in the subject jurisdiction and ensuring employees can remain subject to company rules and expectations in the jurisdiction from which the employee is requesting to remotely work. Other factors, such as head count triggers for application of paid sick leave laws, must also be taken into consideration.
  • Designing an application process with established criteria. Where used, an application process should cover details such as which job positions can be performed remotely, eligible locations, whether a justification is required, and the objective criteria for accepting / rejecting applications. Decision-makers must be trained on applying the criteria objectively.
  • Developing policies to support the remote model, including salary/cost of living adjustments, how necessary equipment will be provided and whether certain costs will be reimbursed, how the company will track hours/overtime/mandatory rest breaks, necessary steps to mitigate increased risks of misappropriation of confidential information and trade secrets, and revising the business travel policy as necessary to apply to remote workers.
  • Providing employees with individualized remote work agreements, setting forth important information such as the effective date of the arrangement, expected hours of work, use of equipment, reimbursement/stipends, insurance requirements, and compensation. Agreements should also confirm the work location (to document the employee’s representation of the jurisdiction in which they are working and paying taxes) and protect the company’s right to recall employees to an onsite location.
  • Training managers and supervisors on the importance of treating all employees equally, whether they are in the office daily with substantial “face time,” or almost never in the office with only remote meeting “face time,” to avoid discrimination claims.

However employers decide, any type of remote work program raises a plethora of compliance issues-including employment law as mentioned above, as well as benefits and compensation, tax, privacy, and corporate law issues-all of which change from jurisdiction to jurisdiction. As employers design and implement remote work programs, they should work with counsel to stay compliant.

Continue Reading This Valentine’s Day Embrace 5 Strategies to Show Employees Some Love in a Competitive Talent Market

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Special thanks to Joe Ward, Jacob Kaplan, Christine Streatfeild, Alexander Davis, Sara Pitt, and Erin Shields.

Late last year, after a month-long trial, a Baker McKenzie team secured a complete defense verdict in favor of our client MedMen and its two co-founders. The trial was the culmination of three years of intense litigation. The result was publicized in Law360, among other outlets.

In this unique three-part webinar series, members of Baker McKenzie’s North America Trial Team will provide insight surrounding this litigation win and the steps taken to achieve it, from inception to defense verdict. Each of these one-hour webinars, moderated by Employment Litigation attorney Bill Dugan, will qualify for CLE credit.

Part 1: Investigation / Identifying Key Fact Issues, Witnesses and Theme
Wednesday, February 23
Noon – 1pm, CT
Click here to register.

Part 2: Discovery / Experts – Shaping for Trial
Wednesday, March 16
Noon – 1pm, CT
Click here to register.

Part 3: Presenting a Dynamic Case at Trial 
Thursday, April 7
Noon – 1pm, CT
Click here to register.

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On February 9, California Governor Gavin Newsom signed legislation (Senate Bill 114) providing up to two additional weeks of paid time off if an employee is sick with COVID-19, or if they have to take care of a family member who contracts the disease. The law takes effect immediately and is retroactive to January 1, 2022, but an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) does not begin until 10 days after the governor signs: February 19, 2022. Leave is available through September 30, 2022.

The law is similar to legislation that expired in September last year.

What kinds of employers are covered?

Small businesses are exempt. The new law only applies to businesses with 26 employees or more.

Who are covered employees?

Covered employees are those unable to work or telework due to certain reasons related to COVID-19, including:

Continue Reading California Revives Supplemental Paid Sick Leave Creating Immediate Obligations for Employers | Everything You Need to Know

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Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.

Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.

What Fact Sheet #84 Said Before It Was Withdrawn

The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:

Activities that occur during normal working hours

  • Under the FLSA, employer-required activities during normal working hours are compensable, unless the activity falls within one of the exceptions stated in 29 C.F.R. Part 785 (e.g., bona fide meal breaks and off-duty time).
  • Employees must be paid for time they spend going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours-including COVID-19 related medical attention. Therefore, if an employer requires an employee to engage in COVID-19 activities (such as receiving a COVID-19 vaccine dose, taking a COVID-19 test, or undergoing a COVID-19 health screening or temperature check) during the employee’s normal working hours, the time is compensable time-regardless of where the activity occurs.

Continue Reading Compensability of COVID-related Activities | The DOL May Have Weighed In to Help Employers Avoid Class Actions

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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.