Author: sjodka

How Employers Can Handle their Biggest Threat to Data Privacy, Their Employees

Given the ever-expanding landscape of privacy laws and regulations, employers are becoming increasingly aware that they are responsible for data breaches caused by their employees. When looking to formally put obligations upon employees to modify employee conduct, employers tend to start with policy, such as in an employee handbook to allow a means of internal discipline, and move to contractual obligations, such as confidentiality/non-disclosure agreements to allow a means for criminal/civil legal penalty.  What does this mean in the employment law context in terms of disciplining employees, and what can employers do to keep employees from exposing protected/confidential data? The two case examples discussed below shed some light. With respect to employers that have privacy requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) the policy requirements have long been in place and can help guide other employers who may not have such regulated privacy requirements. Take for example a matter that finalized in June 2018 with the New York State Education Department suspending a nurse practitioner’s (NP) license for violating the privacy of patients by providing their contact information to her new employer. Come to find out, back in April 2015, the NP had taken a spreadsheet containing the personally identifiable information of approximately 3,000 patients of her former employer and gave the information to her new employer. Not surprisingly, the NP was not supposed...

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U.S. Supreme Court Signals Abandoning the “Narrow” Interpretation Standard for Overtime Exemptions Suggesting More Employer-Favorable Future Rulings

On April 2, 2018, the Supreme Court issued a ruling with narrow application, but it is significant because it likely signals a “new day” favorable to employers regarding how Fair Labor Standards Act (“FLSA”) is interpreted in the future.  The FLSA, of course, is the law that requires the payment of overtime to “non-exempt” workers.  The decision offers hope that future rulings addressing whether or not employees are properly classified as being “exempt” from the overtime requirement, will be more employer-friendly. Case Background and Ruling The case, Encino Motorcars, LLC v. Navarro, 2018 WL 15668025 (U.S. Apr. 2, 2018), involved the FLSA overtime exemption concerning car dealership workers. Historically, “all car dealership employees,” had been exempt from the FLSA’s overtime requirements under the prior language of the regulations. However, this language was later narrowed to exempt only “any salesman, parts man, or mechanic primarily engaged in selling or servicing automobiles.” As one’s imagination takes over, there are plenty of jobs at car dealerships other than “salesmen, parts men and mechanics.” This leaves room for interpretation, argument, legal costs and ultimately, potential liability where workers are misclassified and as a result, overtime is not properly paid. Again, historically, the more narrow language has been interpreted to not exempt service advisors. That was until 2011 when the Department of Labor issued a new regulation reiterating its original view that the language...

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Facebook Evidence of Employee’s “Fore” Play Sinks FMLA Claim

With the news that Tiger Woods will be returning to the Memorial Golf Tournament, which is just a few miles from our Columbus, Ohio office, we thought a golf-related post would be interesting. This post concerns the recent case of Sharrow v. S.C. Johnson & Son, Inc. Case No.: 17-cv-11138 (E.D. Mich. Apr. 12, 2018), which not only relates to golf, but it also involves social media evidence and the Family Medical Leave Act! Our story goes back to the summer of 2015 when David Sharrow, who was an employee of S.C. Johnson & Son, Inc. was on workers’ compensation and FMLA leave for foot pain that he allegedly began experiencing during work. During the weekend of July 17, 2015, which was during the FMLA period, Sharrow attended a charity golf tournament. Because we live in the age where “if it isn’t on social media it didn’t happen”, a picture of the employee at the event captioned “2015 Tim and Ed’s Golf Scramble Champs” found its way onto Facebook. Not to be outdone, the next week, on July 25, 2018, Sharrow’s face showed up again in a Facebook post captioned “Tubing the Rifle River”. Not surprisingly, Sharrow’s supervisor found out about both posts.  On July 29, 2015, the employee was cleared to return to work with no restrictions. By September, the employee put in another request for FMLA leave, but that...

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The Times They are A-Changin’: More States and Cities Move Ahead of the Courts by Prohibiting the Use of Prior Salary Information in Hiring

In the last year a number of states and major cities have passed laws prohibiting employers from obtaining past income/salary information from applicants. States with current legislation include California, Delaware, Massachusetts, New Jersey, New York, and Oregon. Cities with current legislation include: San Francisco; Chicago; New Orleans; New York City; Albany County, New York; Westchester, New York; and Pittsburgh. Not to be outdone, a number of other states, including Illinois, Maine, Maryland, Pennsylvania, Rhode Island, and Vermont, have proposed their own initiatives. The issues then are: (1) what this means for employers who use applicant past salary information to make hiring decisions and to set employee pay rates; and (2) what do the courts have to say about it. Like the Ban-the-Box initiative, which currently boasts 31 states, the District of Columbia, and over 150 cities and counties as implementing laws prohibiting employers from asking applicants about their criminal histories, the flood of recent past-salary prohibitions presented another sea change in hiring criteria arena. Aside from the onslaught of state and local law changes, the anti-pay-history issue was recently supported by the Ninth Circuit in Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) where the court found that employers could not use salary history to justify differences in pay. While some people have claimed that this pay disparity was to be fixed by the Equal Pay Act...

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The GDPR Covers Employee/HR Data and It’s Tricky, Tricky (Tricky) Tricky: What HR Needs to Know

The European Union (EU) General Data Protection Regulation (GDPR) comes into effect on May 25, 2018, so in less than 60 days. While many companies have been working to ensure compliance with respect to their customer and vendor data, one extremely tricky area that must not be overlooked is the GDPR’s application to employee/HR information. While many U.S. companies may think the GDPR does not apply to them because they do not have a location in the EU, the GDPR applies to U.S. or multinational companies that have any employees in the EU. The GDPR specifically applies to the processing of “personal data or data subjects… who are in the EU”. There is no requirement that the employee reside or be a citizen of the EU, just that the employee be in the EU. So, what is “employee data” or “HR data”? Quite simply, it is an employee’s application file, personal file, payroll information, leave/medical file, and all the information employers have about their employee whether it be to hire/fire, pay, provide benefits, enroll in 401k and similar programs, etc. In other words, anything that employer collects that contains an employee’s personal information. Personal information is broad under the GDPR and includes any information relating to an identified or identifiable person who can be identified by reference to an identifier such as a name, an identification number, location data,...

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The HR Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.

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