If you have employees or are doing business with individuals in the European Union, on May 25, 2018, you will be subject to some new regulations. The General Data Protection Regulation (GDPR) sets a new, heightened standard for data collection of citizens in EU countries, and many companies inside and outside of Europe will need to ensure that their systems and processes comply with a data protection statute that will be among the strictest in the world. There are specific provisions that apply to employee data.

The Basics

The GDPR applies to all companies processing and/or holding the personal data of data subjects residing in the EU, regardless of where the company is physically located. Even companies without an EU presence will be subject to the new rules whenever: (1) an EU resident’s personal data is processed in connection with good/services offered to him/her; or (2) the behavior of individuals within the EU is “monitored.” Additionally, violations of the GDPR could result in fines of up to 4 percent of a company’s annual global turnover or almost $25 million (20 million euros), whichever is greater.

Dealing with Your EU Employees’ Data

A key element of the GDPR is its heightened requirements for consent by employees for the processing of their personal data. Under the GDPR generally, consent must be freely given, specific, informed, unambiguous, and revocable. The GDPR, however, also acknowledges the limits of consent in situations where it cannot be freely given.

Article 29 of the Data Protection Working Party, an advisory body of representatives from the data protection authority of each EU Member State, outlines guidance on consent under the GDPR. These guidelines specifically acknowledge that an imbalance of power exists between an employer and an employee. Unlike consumers and customers who can provide voluntary consent for data processing, an employee will be unlikely to feel free to deny consent to data processing without fear of reprisal. For example, an employee may not feel free to refuse to fill out an assessment form or to refuse to consent to camera monitoring in the workplace when it could result in his or her termination.

Despite this imbalance of power, Article 29 acknowledges that there may be certain situations where an employee can freely consent. These exceptional circumstances can occur only when the employee is able to refuse consent with no fear of adverse consequences. As an example, Article 29 outlines a scenario where a film crew needs to film in certain office spaces. The employer requests consent from the employees sitting in that area to be filmed. If the employees who do not wish to be filmed suffer no consequences and are permitted to work in another part of the building during the filming period—that would be acceptable consent.

If consent in the employment context can be used only in exceptional circumstances, employers must find another legal basis to process their employees’ data. These additional legal bases include processing employee data when: (1) required for the performance of an employment contract, (2) required by law, or (3) furthering an employer’s legitimate interest. Furthering an employer’s legitimate interest requires the employer to perform a privacy impact assessment – balancing its legitimate interest with the employee’s privacy rights and documenting that the legitimate interest outweighs the employee’s privacy rights.

Next Steps

If you are going to be subject to the GDPR, you should review your employee documents (such as employment contracts or any permissions for data processing) to ensure they do not depend on the employee’s consent. For current employees, you may wish to provide new data processing notices outlining the additional legal bases for data processing. For new hires, you may wish to provide updated employment contracts and other documentation that outline the additional legal basis for data processing identified above. Employers should remain alert that under the GDPR consent alone may be insufficient for data processing in the employer/employee context.

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.

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws.

You have probably heard that Google terminated an employee earlier this month for saying (among other things) that gender inequality in the technology field resulted from biological differences. After James Damore (now former employee) circulated a lengthy written critique on the company’s diversity efforts, Google ended his employment. Google’s CEO sent a company-wide email announcing that Google terminated Damore because his statements violated the company’s code of conduct by “advancing harmful gender stereotypes in our workplace.”

Google’s response to the memo is not surprising. Over the last several years, the tech industry has faced increased scrutiny about gender inequality in the workforce. We have seen a handful of claims (both in and out of court) alleging sex discrimination and harassment in Silicon Valley. Ignoring for the moment the optics, workforce morale, and company culture potentially affected by Damore’s manifesto, the company acted to minimize its exposure under anti-discrimination laws. For example, if a female employee later sues Google for sex discrimination, Google can point to its hardline response as evidence that it is committed to the equal treatment of women in the workplace and does not tolerate attitudes to the contrary.

What Google may have failed to consider, however, are Damore’s potential claims under the National Labor Relations Act (NLRA), which protects employees’ rights to act together to improve pay and working conditions.

The day he was terminated, Damore filed a complaint with the National Labor Relations Board (NLRB), apparently claiming that his manifesto was protected activity and the company was trying to silence him by threatening his employment. (The actual complaint is not yet publicly available, but Damore has spoken out about it, and the NLRB site describes the nature of the complaint as “coercive statements.”) The day after Damore filed his NLRB complaint, the Eighth Circuit agreed with another NLRB order reinstating an employee terminated for making racial slurs to a group of African-American workers. Because that employee made the slurs during a nonviolent company strike, the Eighth Circuit held that he was participating in protected collective activity. Damore will likely point to the new Eighth Circuit opinion to support his NLRB complaint.

Whether offensive speech constitutes harassment is very fact-specific, as is whether an employee’s conduct amounts to protected concerted activity under the NLRA. Employers should always address instances of unprofessional or offensive comments, but they also need to be on the lookout for potential NLRB claims if the employee’s remarks reach a larger group of people (whether in person, in writing, or via social media).