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As we previously reported, in January, in Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Privacy Act (BIPA).

(By way of reminder, the Illinois BIPA prohibits gathering biometric data such as fingerprints without notice and consent. It also requires data collectors adopt a written policy and a destruction policy for data which is no longer required.)

In the wake of Rosenbach, dozens more class actions have been filed in Illinois state courts. Following Rosenbach,plaintiffs can seek injunctive relief and statutory penalties under the BIPA on a class-wide basis. Despite the flurry of activity by the plaintiff’s bar over the past several years, Illinois courts have only recently started addressing such claims. The rulings since Rosenbach demonstrate a strong commitment not to deviate from the Illinois Supreme Court’s holding. Continue Reading BIPA After Rosenbach — A Broad Interpretation By Illinois Courts

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Hiring Entity:  When are gig workers employees?

Four Government Agencies & Courts:  It depends!

Trying to track the employment status of gig workers will make your head spin. Contractors? Employees? Super heroes?

In the last few weeks, four federal and California state agencies and courts — the US Department of Labor, the National Labor Relations Board, the Ninth Circuit Court of Appeals and the California Labor Commissioner — have all weighed in on the debate. And, the answer is — it depends.

Follow our script below to help make sense of the patchy legal landscape.

Continue Reading The Essential Question Of The Gig Economy

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How to bridge the gap between HR and legal to avoid exposure in the US and beyond

Effective HR departments are imperative to the operation of any company and functions including benchmarking and non-solicitation agreements serve an important need. However, increased scrutiny from antitrust regulators means that companies and staff that agree not to poach employees from others, or fix wages, are increasingly in danger of serious financial and even criminal penalties.

Join our Antitrust and Employment partners from the US and Europe (the UK and Germany) for a complimentary seminar on June 18 and 19 to discuss the current state of enforcement and to understand how to mitigate risk.

Among other things, we will cover:

  • HR practices under the antitrust spotlight: why this and why now?
  • When do legitimate non-solicitation clauses become illegal no-poach arrangements?
  • Benchmarking: can exchanges of data amount to wage-fixing conspiracies?
  • Practical takeaways for managing HR risks

For more details on the Chicago seminar on June 18, click here.

For more details on the New York seminar on June 19, click here.

We hope you can join us!

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Once again, Baker McKenzie attorneys, industry thought leaders and key clients from around the world convened (this time in New York) to answer this essential question: What is the future of work? 

One consistent theme that permeated many of our discussions can be summed up as: Inclusion or Bust.

What does this mean?

It means that as global employers, we’re moving beyond a singular focus on diversity. As guest speaker Vernā Myers says,

Diversity is being invited to the party. Inclusion is being asked to dance.”

To truly reap the rich rewards of a diverse workplace, companies must invest generously and continuously in inclusion. Many senior business leaders predict that companies that don’t will be left behind and may actually cease to exist entirely in the not too distant future.

Continue Reading Inclusion Or Bust

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In last Thursday’s Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:

  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex’s ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of “passing” the ABC test.

Continue Reading In Expansive Decision, Ninth Circuit Rules Dynamex Applies Retroactively

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On April 10, the EEOC released its charge filing statistics for Fiscal Year 2018, which ran from October 1, 2017 to September 30, 2018. These annually disclosed statistics reveal continued trends in the employment litigation space and provide an opportunity for employers to ensure their policies and practices address issues arising in the ever-changing modern workplace.

Continue Reading EEOC FY 2018 Enforcement & Litigation Data Reveal Trends In Employment Litigation

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Even as IPOs bloom this spring in the technology sector, there exists well publicized macro-economic uncertainty, stemming from Brexit concerns, among other developments. Real threats to free trade and investment flows remain, with the potential for a much more serious outbreak of protectionism and isolation on a global scale. A recession may or may not be looming, depending on the day and your media outlet.

In these uncertain times, the best counsel know to be prepared for everything, including business change. To successfully manage global business change, in-house counsel must identify potential legal roadblocks, plan ahead and provide a strategic approach. Counsel must be prepared for everything, including some tough decisions:

  • Cost-realignment such as furloughs, compensation reduction or benefit forfeitures;
  • Workforce reductions;
  • Reorganizations; and
  • Transfer relocation and seconding of employees.

Continue Reading Preparation Is Key To Effectively Managing Global Business Change

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Less than two weeks ago we reported that all employers with 100 or more workers in the US would have until September 30 to provide the EEOC with pay data (read more here).

Then, just days later, on May 3rd, the Justice Department appealed the two rulings resurrecting the Obama-era mandate. Ironically, the appeal came just one day after EEOC Acting Chair Victoria Lipnic declared:

[W]e are committed to meeting the court’s order, working with employers, and making this happen by the end of September.”

Despite the appeal, in a court filing and on its website, the EEOC insists employers should still prepare to submit their 2017 and 2018 pay data to the EEOC by September 30.

Accordingly, we continue to recommend, per our earlier alert, that employers prepare their revised EEO-1 form to meet the September deadline.

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Only one thing is certain: Nothing is certain. The global transactions market remained robust in 2018 and still into 2019, despite well publicized macro-economic uncertainty, stemming from Brexit concerns, among other developments. Real threats to free trade and investment flows remain, with the potential for a much more serious outbreak of protectionism and isolation on a global scale. A recession may or may not be looming, depending on the day of the week and your news source.

So, as in-house employment counsel managing an international workforce, what can you do to best position your company to thrive in uncertain times? The short answer: Be prepared … for anything and everything.

To get you started, read this article. Our team of authors outline approaches, tips and preparation pointers to help effectuate some of the most common types of actions that in-house employment counsel are likely to face in the near future.

And for help managing business change, reach out to your Baker McKenzie employment lawyer.

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All employers with 100 or more workers in the US have until September 30 to provide the EEOC with pay data as part of the annual workforce data report known as the EEO-1.

On April 25, US District Judge Tanya Chutkan accepted the EEOC’s proposal (more here) to make employers submit their 2018 pay data this fall. She also ordered the EEOC to collect a second year of pay data, giving it a choice between collecting employers’ 2017 data or making it collect 2019 data down the road. Her ruling is expected to impact more than 60,000 employers.

Continue Reading US Employers Must Submit Revised EEO-1 Forms With Pay Data By September 30, 2019