The Waiting Is the Hardest Part: Fifth Circuit Rules on Compensability of Pre-Shift Wait Time

The Waiting Is the Hardest Part:  Fifth Circuit Rules on Compensability of Pre-Shift Wait TimeWhile the Portal-to-Portal Act sounds more like a science fiction movie than a wage statute, it comes into play every day for hourly employees. Enacted in 1947 in response to litigation following the relatively new (at the time) Fair Labor Standards Act, the act attempts to provide rules for when employees must be paid when they may not be actually performing their duties. Specifically, FLSA prohibits employees from seeking wages for time spent:

  • Traveling to and from the actual place where they perform the principal activities of their job, and
  • Activities which are preliminary or postliminary to those work activities.

The purpose of the law was to only compensate employees for activities integral and indispensable to their work.

Prior Court Decisions

Case law after the passage of the act further defined what counted and what didn’t. For example, courts held that for employees who manufactured batteries and worked with dangerous chemicals and fumes, time showering and changing clothes after work counted as integral and indispensable to the job and should be paid. However, courts held that time waiting to don protective gear (not the time actually spent putting on the gear) was not compensable under the Portal-to-Portal test.

More recently, courts have addressed post-shift security screenings of employees to see if that waiting time was compensable. In Integrity Staffing Sols., Inc. v. Busk, the Supreme Court held that since mandatory security screenings of warehouse employees’ were not related to their jobs of retrieving and packaging products for shipment, the time waiting for the post-shift security screenings was not compensable. Other state courts have followed suit.

So What Did the Fifth Circuit Do?

On November 9, the Fifth Circuit issued an opinion dealing with construction workers on an oil drilling operation. The plaintiffs were scaffolding workers that had to park in a remote lot and ride company buses to the refinery. While their shifts started at 7 a.m., the buses sometimes delivered them to the refinery earlier, and they had to wait around until the shift started. They filed an action arguing that the time they had to wait between being dropped off and the start of the shift was compensable because they were not allowed to perform any work during that time, but it was beneficial to the employer.

The Fifth Circuit held that the test for Portal-to-Portal compensability was whether the wait time was integral and indispensable to the principal activities they were employed to perform. Here, plaintiffs erected and dismantled scaffolding. During the wait time, they were not undergoing safety training, donning safety equipment or completing paperwork—all of that was done after 7 a.m. and paid. Instead, most of the workers testified that they used the wait time to “chat” or “smoke.” They argued that since the wait time was required by and benefited the employer, they should be paid for it.

The court disagreed. It held that under the Busk decision, the fact that an employer required an activity and that it may benefit the employer was not enough to make it compensable. Instead, the workers had to show that the preliminary wait time was integral and indispensable to their work erecting and dismantling scaffolding. The proof did not show that it was, and therefore they were not entitled to compensation for it.

What to Do with Waiting Employees?

If there are things that your employees are having to do before or after a shift, you need to be sure of what they are actually doing. If they are waiting for something like a post-shift security screening, that time may not be compensable. If they are donning safety equipment or cleaning off after a dangerous activity, it may be compensable. This decision shows that it is important to have well-defined rules as to when a shift begins and what is required of an employee pre- or post-shift.

Tis the Season: The EEOC’s Year-End Reports Are Out Today

The EEOC’s fiscal year just ended and now it is releasing news of its successes. Although this is a look back, it gives us all insight as to what is important to the Commission and, perhaps, how we can stay off its radar. While the official report is being released today, here are some highlights.

Tis the Season: The EEOC’s Year-End Reports Are Out TodayMore Efficiency, Quicker Resolution?

The EEOC is working on being more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges of discrimination in the last fiscal year and, through its improved efficiencies, reduced its backlog to the lowest it has been in 10 years.

Another innovation is the new EEOC Public Portal that was just launched nationwide. This appears to be the flip side of the employers’ Respondent Portal that we have been using for the last few years. Employees can now find out how to file a charge, set up interviews with the EEOC and check the status of their charges all from the comfort of their homes.

More Money, More Lawsuits

As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local government. Of that amount, the vast majority ($355.6 million) was paid voluntarily — through mediation, conciliation and other administrative enforcement.

On the litigation front, the EEOC recovered $42.4 million through litigation last year. The EEOC also stepped up the number of lawsuits it filed. The commission filed 184 lawsuits, more than doubling the number from FY 2016. Of the 184 suits, about 67 percent were for individuals, while only 16 percent were systemic suits.

Training Resources

You can now have the EEOC Training Institute staff train your supervisors (Leading for Respect) and employees (Respect in the Workplace). I have a client who has had the EEOC come provide harassment training for the last several years, and it looks like the Commission is institutionalizing those efforts. As the program is new, I cannot tell you what it is like. However, it is certainly something to consider, particularly in the wake of recent harassment complaints.

Takeaways

First, the EEOC is clearly trying to reduce the amount of time a charge spends with the agency. We have all had charges that were pending for more than two years—which then means you could have to defend a lawsuit with a back-pay figure that is already out of control. Perhaps the improved efficiencies will make these stale charges a thing of the past.

Second, the EEOC wants to resolve the charges early and is having some success doing so. I always talk with clients about EEOC mediation—and it works with many (although not all) charges. I have also noticed that EEOC investigators try to encourage settlement discussions even when the parties have not agreed to mediate the charge. Although I was initially leery of having the purportedly neutral investigator orchestrate negotiations, for the most part I have found the investigators’ efforts to be helpful and have resolved some charges (usually low dollar) in that way.

Third, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals —not multiple plaintiffs or systemic issues. The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the Commission is willing to make that law one plaintiff at a time.

Finally, IMHO the best training involves your employment counsel. However, the EEOC’s training resources are worth considering. If you use these resources, it will be tough for the Commission (or a plaintiff’s lawyer) to argue that you don’t take prevention seriously.

Ahead of Schedule? What Oregon’s Fair Work Week Bill Means to the Retail, Hospitality, and Food Service Industries

In case you didn’t know, Oregon enacted the “Fair Work Week” law, making it the first state to legally restrict the scheduling practices of employers in the service sector. The highlights include:

  • an obligatory rest period for employees between shifts,
  • written work schedules in advance of shifts, and
  • additional pay for employees if employers want to deviate from the written work schedule.

Ahead of Schedule? What Oregon’s Fair Work Week Bill Means to the Retail, Hospitality, and Food Service IndustriesThe obligations for covered Oregon employers are extensive and onerous. Oregon employers would be well served to begin taking steps to ensure they are prepared to comply well before the effective dates (primarily in July 2018).

Which Employers Are Affected?

The law applies to retail, hospitality, and food service establishments in Oregon that employ 500 or more employees worldwide. In calculating the number of employees, a chain or integrated enterprise is considered one employer. If a separate entity controls the operation of another entity, the entities could collectively be considered an integrated enterprise. The factors to consider in this analysis are the interrelationship between the operations of multiple entities, shared common management, centralized control over labor, and common financial control. Oregon’s Commissioner of the Bureau of Labor and Industries is to adopt further rules outlining when and under what circumstances separate entities constitute a single integrated enterprise.

Which Employees Are Covered?

Oregon employees covered under the law must not only be one of at least 500 employees worldwide but also engaged in providing services relating to retail trade, hotels, motels, or food services, as those terms are defined in the 2012 North American Industry Classification System. However, the law excludes salaried employees, workers supplied by a leasing company, and employees of a business that provides services to or on behalf of the employer.

What Are the Key Provisions?

  1. Work Schedule Estimate: At the time of hire, an employer must provide a new employee with a written, good-faith estimate of the employee’s work schedule. The estimate must (a) include the expected monthly median number of hours, (b) explain that the employee may elect to be on a voluntary standby list, (c) indicate whether an employee who is not on the standby list can expect on-call shifts, and (d) set forth an objective standard for on-call shifts.
  2. Standby List: An employer may maintain a standby list of employees who may be asked to work additional hours. The employee must agree in writing to be on the standby list, and the employer must notify the employee in writing of the standby procedures. The employer’s notification must include (a) that the list is voluntary, (b) how an employee can get off the list, (c) how an employer will offer additional hours, (d) how the employee accepts additional hours, and (e) that the employee is not required to accept the additional hours.
  3. Advanced Work Schedule: An employer must provide a written work schedule at least seven days before the first day of work scheduled (beginning July 1, 2020, this advance notice period expands to 14 days.) The work schedule must be posted in a conspicuous and accessible location and written in the language the employer uses to communicate with its employees. If an employer subsequently changes the work schedule, the change must be timely and the employee can decline the change.
  4. Right to Rest: Unless an employee agrees, an employee generally gets a 10-hour break between shifts.
  5. Compensation for Schedule Changes: If an employer changes a work schedule (without the required advanced notice) and the change either (a) adds more than 30 minutes to a shift, (b) alters the date, start time, or end time with no loss in hours, or (c) constitutes an additional shift, then the employee gets an additional 1 hour of pay at the regular rate (over and above wages earned). If an employer changes a work schedule (without the required advanced notice) and reduces or cancels an employee’s scheduled hours, then the employee gets 1.5 times the regular pay rate for each hour scheduled but not worked. Likewise, an employee scheduled for an on-call shift but not asked to perform work gets 1.5 times the regular pay rate for each hour scheduled but not worked.

What Additional Rights Do Employees Have?

The law also contains anti-retaliation provisions and provides employees with a private right of action. Employers are expressly prohibited from interfering with an employee’s rights protected under the law and from retaliating or discriminating against an employee for asking about the law. Also, an employer may not retaliate against an employee who either (a) chooses not to be on the standby list, (b) requests removal from the standby list, or (c) declines to work additional hours as a result of being on the standby list. An employer is subject to a civil penalty (not to exceed $2,000) for coercing an employee into being added to the standby list, with each violation constituting a separate offense.

If You Are a Retail, Hospitality, or Food Service Employer, What Should You Do?

As of today, Oregon is the only state to have enacted this kind of scheduling law. Therefore, so long as you are not a qualifying “employer” with a business establishment in Oregon, there is no need to take any immediate action. However, if you are covered under the law or anticipate entering the Oregon market, you should begin preparing. The first step is to determine whether your business is a qualifying “employer” and is, thus, affected by this law.

The passage of Oregon’s Fair Work Week law – coupled with the recent passage of similar citywide legislation – suggests that you can expect more restrictions on the scheduling practices of retail, hospitality, and food service businesses in the coming years. Apart from the economic effects resulting from the discontinuation of on-call scheduling, the penalties for violating such laws (if Oregon’s law is any example) could be significant. Therefore, employers should keep an eye on this apparent legislative trend and should not hesitate to seek out legal counsel if they believe they might be affected.

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a violation of her company’s social media policy. The company said that the image was “lewd” and “obscene.” The woman argued that she was not at work when the photo was taken and did not mention her employer in the post. No litigation or charges have been filed yet, but would they be successful?

Can an Employer Regulate Political Social Media Speech?

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

What comes to most people’s mind when reading this type of scenario is the First Amendment guarantee of free speech. However, the First Amendment protects against governmental censorship of speech. With some restrictions, a private employer can restrict speech in the workplace. This right to restrict also may be extended to social media speech, especially when the employer has a written social media policy and if the employee is using employer-provided equipment (cell phone or computer) to engage in the speech. Coupled with the fact that many states are “at-will” employment states, it may be perfectly acceptable for an employer to terminate an employee who engages in speech that the employer finds offensive or non-productive.

One complication outside of the First Amendment is the National Labor Relations Board’s recent decisions that employees cannot be restricted from commenting on social media about their conditions of employment. The NLRB considers such comments to be “concerted protected activity” for which an employer may not retaliate. However, as seen here, there may be social media posts that have nothing to do with the conditions of the workplace, but that the employer doesn’t like. For those posts, discipline or termination may be an option.

This story is a good prompt for employers to review their social media policies and to talk about them with their employees. Remind employees that, although they may not expressly identify each post with the place they work, they still may be considered the face of the organization. Political discussions are not per se taboo—but the tone and language used may sometimes stray into offensive territory. As always, an open dialogue about employment policies usually results in happier employees and less difficult situations.

Whatever Happened to Those New Overtime Regulations? DOL May Be Sending a Signal with Its Notice of Appeal

Whatever Happened to Those New Overtime Regulations? DOL May Be Sending a Signal with Its Notice of AppealRemember last year when everyone was getting ready for the big change to the salary threshold for the overtime exemption that was set to go into effect on December 1? And then, seemingly out of nowhere, a judge put a stop to all of those worries? Ever wonder what happened to those pesky regulations? Although we still don’t know what is going to happen, it is worth a look back and a status update.

The Timeline

  • May 23, 2016: The DOL revised the FLSA overtime regulations to more than double the minimum salary a company must pay an employee for that employee to qualify as exempt from overtime status. The revised regulations were set to go into effect on December 1, 2016.
  • November 22, 2016: Judge Amos L. Mazzant, United States District Judge for the Eastern District of Texas, issued a nationwide injunction, enjoining implementation of the revisions.
  • August 31, 2017: Judge Mazzant ruled that the proposed revisions were invalid, finding that the department had exceeded its authority in making them.

The Latest

On October 30, 2017, the DOL Wage and Hour Division announced that the Department of Justice had filed a Notice of Appeal of Judge Mazzant’s ruling. According to the DOL’s statement, once the appeal is docketed, the Department of Justice will file a motion to hold the appeal in abeyance until after the DOL has undertaken “further rulemaking to determine what the salary level should be.”

This announcement indicates that the DOL is in the process of modifying the revisions — potentially rendering the appeal moot — however, it needs more time to do so. As noted in the October 30 statement, the DOL is currently reviewing the submissions to a Request for Information that went out in July 2017. Given the tenor of the current administration, I suspect any new revisions will be more business-friendly than the invalid 2016 revisions. Only time will tell.

Why the Harvey Weinstein Scandal Should Scare the Pants Off Employers

Unless you have been living in a cave for the last month, you have heard about the sexual misconduct allegations against Hollywood mogul Harvey Weinstein. The story has all of the makings of a Hollywood blockbuster, except this time it’s not a movie. Here’s why it should also raise the curtain for employers outside of Tinseltown.

Why the Harvey Weinstein Scandal Should Scare the Pants Off EmployersRising Tide of Allegations Will Result in Increased Scrutiny

The Weinstein allegations have triggered an avalanche of claims against Hollywood stars, celebrity chefs, executives and politicians unlike anything in recent memory. The EEOC has weighed in with renewed interest in harassment claims, seizing upon an opportunity to publicize the issue. Those who use their workplace positions to make unwelcome sexual advances deserve to be called out for their misconduct. To be clear, this post is not for them. However, the sheer number of allegations regarding misconduct that occurred years ago and were never reported poses a real problem for conscientious employers. What does this mean for employers who face fallout for this kind of misconduct?

First, employers will have to deal with increased administrative interest. Undoubtedly, the EEOC will more carefully scrutinize claims of harassment and increase litigation efforts against companies alleged to harbor harassers, especially in the C-suite. Second, litigation could get tougher. Juries and courts may be more inclined to believe that alleged harassment occurred and to disbelieve denials by an accused executive and by extension his or her employer. In short, we will likely see an increase in claims, so what can employers do?

An Ounce of Prevention

You have heard it before but it bears repeating. While employers can’t stop employees from acting badly, they can take steps to try to prevent bad conduct and to properly address it when brought to their attention.

  • Review your policies. Any employer reading this almost certainly has a policy against harassment or discrimination, but far too often we see employers with cut and paste policies gleaned from another company or pulled off the internet that don’t really align with their workplace. You need clear, well-thought-out policies that your employees understand. Be sure the policy explains what harassment is and encourages people to report it.
  • Identify the right person to receive complaints. A policy merely advising employees to report harassment to their immediate supervisor, who has little or no training in how to identify or address harassment, often proves of limited help. Think about who is best to receive allegations about harassment and to properly address them and draft your policy to match. Clear policies with carefully crafted reporting procedures (perhaps supplemented with a third-party hotline option) can help.
  • Distribute the policy. A policy buried in a handbook, with no stand-alone employee acknowledgment, can be portrayed as mere words on the page with no real meaning. Worse still, employees may claim (sometimes truthfully) that they never received or read it. A policy given to employees and acknowledged in writing is critical.
  • Training, training, and more training. The again obvious, but often overlooked or sporadically implemented, additional step is education and training. For those of you in states that require annual training, make sure you do it and document it. For the rest of the country, have annual training of management in EEOC matters and trends. Add training of HR staff in how to identify, investigate and address allegations. Make sure your supervisors can identify harassment and know what to do when they see it or get a complaint. Educate employees in the company’s reporting procedures and make sure they understand that the company will not tolerate retaliation for a complaint. Finally, implement the training in a manner that avoids the holes created by employee and supervisory turnover.

Again, all of this sounds obvious but it can mean the difference between preventing harassment in your workplace and being found liable for the bad acts of people who you thought knew better.

Trick or Treat? Employee Claims Discrimination After Attending Office Halloween Party

Trick or Treat? Employee Claims Discrimination After Attending Office Halloween PartyBefore you send out that next office-wide invite to a “holiday” party, think twice. Carmelite Lofton has sued her employer, BSN Sports, LLC—a Texas uniform and equipment retailer—when things turned sour after she was forced to attend an office Halloween party. Lofton—an African American and a Christian, says the party was contrary to her religious beliefs and afterward she endured verbal and professional slights due to her race, religion, and disability.

The Legal Issues

The complaint contains claims under the Americans with Disabilities Act, Title VII, and the Lily Ledbetter Fair Pay Act of 2009.  She argues that for the entirety of her employment she was subject to a hostile work environment, discriminated against on the basis of her disability (osteoarthritis), and paid less than her colleagues because of her race and religion. She argues that her termination in March 2017 was unlawful and motivated by discriminatory factors.

          Disability Discrimination Claims. Regarding her disability claim, Lofton alleges that she told BSN about her osteoarthritis at the start of her employment, but was still made to perform strenuous physical activities in direct contravention of her doctor’s orders. Under the ADA, employers are charged with providing reasonable accommodations to workers with known disabilities. Reasonable accommodations can include things such as time off, modified duties, or even a special work area if it will aid the disabled employee in carrying out their job responsibilities.

Here though, Lofton argues that BSN refused to accommodate her and terminated her employment under false pretext. Specifically, Lofton points to being made to stand for over an hour while in “excruciating pain” at the Halloween party and having to clean and pack the BSN office building after it had been damaged in a flood.

          Religious Discrimination Claims. Beyond experiencing discrimination and a hostile work environment because of her disability, Lofton also asserts that her religion was a cause of conflict during her time at BSN. Specifically, Lofton alleges (1) her superiors told her she was “going to hell” for bringing in tootsie rolls, (2) she was told she “didn’t have a choice” of whether she participated in the office Halloween party, and (3) she was intentionally asked to accompany her manager to “Condom Sense” despite the knowledge that it was opposite to her religious ideals.

Lofton recites a series of alleged cringe-worthy incidents ranging from management’s off-handed comments against the Bible to being continually interrupted during private prayer meetings held during her lunch break to being told she should “just have Kool-Aid” when she refused to drink alcohol with her colleagues. Regardless, Lofton’s complaint is chock full of alleged derogatory exchanges in support of her religiously hostile work environment claim.

          Race Discrimination Claims. Lofton claims she was treated differently because of her race. To argue a disparate treatment claim, Lofton must show that her employer intentionally discriminated against her or treated her less favorably because of her race.

Here, Lofton argues that her non-African American colleagues were paid more for doing the same job and/or for doing a job with lesser duties and responsibilities. Further, she asserts that her non-African American colleagues did not have to use PTO when out for injuries or illnesses, whereas she was forced to use PTO for her osteoarthritis surgery. To strengthen her claim, Lofton includes that her superior has previously been accused of racial discrimination, citing a 2015 incident where an email with “a stick figure being hung on a noose” was distributed company-wide.

So What Does This Mean for Employers?

All we know is what Ms. Lofton says in her complaint and we all know that BSN’s version of events is likely to tell a different story. The question now becomes, as employers, what can we learn from this complaint?

  1. Check your policies. For starters, this is an excellent time to re-evaluate your company’s policies and to focus on maintaining a workplace that is welcoming to all, regardless of race, religion, gender, disability, etc. Recognize that an employee’s religious beliefs are protected and make sure they are not the subject of jokes or potentially disparaging comments.
  2. Rethink mandatory holiday celebration. Refrain from forcing any employee, regardless of religious belief, to attend company holiday functions. It is far too easy to blur the line between optional and compelled attendance, but once blurred, you run the risk of facing the same type of problem now facing BSN.
  3. Keep your management and staff up-to-date on non-discrimination policies, have routine sensitivity training, and take the position that discriminatory behaviors will not be tolerated in any form or fashion. Encourage your staff to speak with HR or to use other resources to report instances of what they believe is discrimination.
  4. Do a quick audit. Look around to make sure people who have disclosed potential disabilities are being appropriately accommodated. For employees with obvious disabilities, check to see if they have requested accommodations and haven’t yet gotten them. Check their files to see if they have submitted anything in writing. If you find someone who has been overlooked, find a way to do it…quickly.

Changing of the Leaves: EEOC Again Pushes for Additional Leave as ADA Accommodation

Changing of the Leaves: EEOC Again Pushes for Additional Leave as ADA AccommodationWe have said it before — the EEOC believes that leave is a reasonable accommodation and automatic termination when FMLA leave runs out violates the Americans with Disabilities Act. Even though at least one federal court has made clear it disagrees, the EEOC continues to press the point and has recently filed a lawsuit against the Blood Bank of Hawaii for failure to provide reasonable accommodations for and then firing employees who required additional leave time for their disabilities.

The Allegations

The EEOC contends that the blood bank had “a rigid maximum leave policy” under which employees with disabilities who ran out of FMLA leave were not granted a leave of absence as a reasonable accommodation. The complaint also alleges that employees returning from leave were required to return to work without limitations. As a result, some folks lost their jobs. The EEOC thinks this violates the ADA.

According to the EEOC:

“Employees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

Takeaways

The EEOC is looking for disability cases. It has issued guidance on leave as a reasonable accommodation, and going after inflexible leave policies is one of six national priorities identified by the Strategic Enforcement Plan. With that in mind, make sure you don’t end up as a target.

  1. Check your policies. If any of them state or suggest that an employee who exhausts FMLA leave will immediately be terminated, change them. The EEOC has made it clear it wants no bright lines.
  2. Train your managers and supervisors. Make sure people understand that the company will always consider a reasonable accommodation. It might be some amount of leave, it might not. What you want to avoid is a supervisor (or an HR manager) saying “We always terminate people who can’t return from leave—no exceptions.”
  3. Check you return to work letters. Eliminate any language that says “you have to return to work without restrictions.” That kind of talk will get you sued. No matter what the restriction, you have to consider whether you could provide a reasonable accommodation.
  4. Always consider vacant positions. The ADA requires that you consider whether the employee can perform (with or without a reasonable accommodation) the essential functions of a vacant position for which he or she is qualified. You may not have a vacancy, and you don’t have to create one—but you always need to check. If the employee can perform the vacant position (even if it pays less), offer it as a reasonable accommodation. Also, it doesn’t have to be a temporary assignment.

The ADA is tricky and every situation is different. Have a process to follow but don’t rely on bright lines.

Putting a Finger on a Problem? Employees Challenge Biometric Scanners as Violating Privacy

Putting a Finger on a Problem? Employees Challenge Biometric Scanners as Violating PrivacyEmployers, if you have ever wondered how much security is too much, there may be an answer coming sooner than you think. In a recently filed complaint, Martin Ragsdale, an employee of the Paramount of Oak Park Rehabilitation & Nursing Center, alleged that the company’s use of biometric data violated his and his coworkers’ individual privacy rights under the Illinois Biometric Information Privacy Act (BIPA).

Paramount requires employees to scan a fingerprint to clock in and out, to confirm identity, and as a security measure. The company believed that the new system would help eliminate common forms of timekeeping fraud and produce a more streamlined operation. Little did they know that what saved them money on the front end may now end up costing them far more on the back end of this litigation.

The Legal Issues

In the complaint, Ragsdale emphasizes the invariable nature of biometric identifiers, explaining that personally identifiable information (PII) such as Social Security numbers can be changed, whereas biometrics—fingerprints, DNA, eye scans—are “biologically unique” and unchangeable. He argues that the BIPA requires organizations to go through a series of steps that involve communication with individuals and getting their consent to use their biometrics before collecting and storing their biometric data. Further, Ragsdale argues that the BIPA mandates that entities collecting biometric data make their data retention and deletion policies publicly available.

Ragsdale’s complaint asserts that Paramount collected biometric data without notifying the employees that it intended to do so, without obtaining consents after the practice was established and without publishing the requisite data storage and deletion policy as required by the BIPA. He further alleges that each time Paramount transmitted the biometric data to third-party and out-of-state vendors a violation of the BIPA occurred.

As of yet, Paramount has not filed its response to the complaint. However, the stakes are potentially high. Each “willful and/or reckless” violation of the BIPA is worth $5,000, and each “negligent” violation is worth $1,000.

This is not an issue limited to Illinois. Although only three states (Illinois, Washington and Texas) have laws specifically targeting the collection of biometric data, there are bills currently pending in Alaska, Connecticut, Massachusetts, and New Hampshire. According to the National Conference of State Legislatures, 48 states, as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands, have enacted some form of privacy laws to safeguard the collection of personal information. To date, Alabama and South Dakota are the only two states with no similar security laws.

So What Does This Mean for Employers?

If you are considering using a practice that involves the use of PII, biometrics, or any other potentially sensitive information, you should check your state’s laws to see what hoops you need to jump through. If you have already adopted such a practice, check to be sure you complied with the applicable privacy legislation. While your state may not have a law addressing biometrics, the collection and storage of PII may still be addressed in other rules and regulations. Next, you should make sure that your current practices are in line with the statutory requirements, and if they are not, you should find the most expedient way to fix them. And last but certainly not least, as an employer, you should re-evaluate your current level of transparency with your employees.

An ounce of prevention is worth a pound of cure. While the implementation of new technology boasts of improved and more secured operations, employers would do well to remember that with great cybersecurity comes even greater responsibility. Guard your employees’ biometric data now or run the risk of having to pay for it later.

Alabama Employers Take Note – Birmingham Joins Ranks of Cities with an Anti-Discrimination Ordinance

Alabama Employers Take Note – Birmingham Joins Ranks of Cities with an Anti-Discrimination OrdinanceLast month, the Birmingham City Council passed an ordinance criminalizing discrimination in education, housing, employment, and public accommodations. The ordinance not only prohibits discrimination based on the federally protected categories of race, sex, national origin, and disability, but it also recognizes familial status (i.e., having minor children), sexual orientation, and gender identity as protected categories. Additionally, the ordinance creates a new Human Rights Commission to handle discrimination complaints. Members of the commission will include the police chief, fire chief, ADA compliance director, a city council staff member, city council district appointees, and representatives from other local organizations.

What the Ordinance Provides

An individual can file a discrimination complaint by seeking a warrant or summons from a magistrate in the Birmingham Municipal Court. The magistrate will refer the complaint to the new Human Rights Commission to investigate and attempt to conciliate the complaint. If the commission does not resolve the matter, it then will go to trial in the municipal court. If found guilty, a business may face a $500 maximum fine. Although that remedy is insignificant relative to damages available under the federal anti-discrimination statutes (backpay, reinstatement, potentially uncapped damages), employers should keep in mind that a plaintiff in federal court could point to a prior municipal court ruling against an employer as evidence of discrimination. Weighing that possibility and also considering the near certainty that an employer would spend more than $500 defending a municipal court claim, employers should look to resolve such claims swiftly.

When Does It Take Effect?

Birmingham’s mayor must sign the ordinance for it to take effect, and that has not yet happened. That task apparently was moved to the backburner after Birmingham’s incumbent mayor, William Bell, lost to opponent Randall Woodfin in an October 3 runoff. Both Bell and Woodfin have expressed support for the ordinance, so we can expect that one of them will sign it into law at some point. Woodfin plans to take office on November 28.

Even assuming the mayor signs the ordinance, the Alabama State Legislature could possibly challenge it. The legislature is not in session again until early 2018 and has not hinted at opening a special session. Legislators are perhaps staying quiet on the issue while Birmingham and Huntsville pursue bids for Amazon’s second headquarters, in light of North Carolina’s recent economic backlash over the state legislature striking down Charlotte’s transgender bathroom ordinance.

Lastly, the city council president who spearheaded the ordinance lost his seat in a runoff shortly after its enactment, and it remains to be seen whether the new city council will follow through on getting the mayor’s signature and creating the new Human Rights Commission.

So, not surprisingly, the new ordinance raises more questions than it provides answers — employers should stay tuned for further developments.

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