This post was written by Steven R. Nevolis and Mark A. Konkel and originally posted on Kelley Drye’s Labor Days Blog.

For decades, technological innovation has changed our world at a rapid pace. Across industries and departments, businesses have a plethora of new and exciting technology and tools they can utilize to deliver products and services more effectively and efficiently to their customers. This is especially true of today’s human resources department and function. Recent trends have shown an increasing number of technology innovations aimed at HR professionals that offer to help more effectively recruit employees, manage workforce productivity, and address employee and labor relations issues as they arise. However, as businesses begin to adopt these new methods of workforce management, human resource professionals must stay ahead of the curve to ensure this technology is being used effectively and, in some cases, legally.

Technology Ahead of Laws and Regulations – Or Is It?
It’s generally accepted that technological advancement will outpace the legislatures and courts tasked with regulating that technology. But that isn’t to say the legislatures and courts won’t catch up. Just recently, we have seen social media enter the spotlight as the newest target of potential government regulation. And with the European Union enacting the General Data Protection Regulation, companies must be vigilant in how they collect and maintain job applicant information, or face the possibility of severe fines. As fast as new technology is introduced to the market, regulators are working to act just as quickly to mitigate potential harm from that technology.

However, one thing that may be lost in the shuffle is the unintended consequences of some of these technologies, and how that may expose businesses to potential claims under existing laws. Take for example a business that decides to shift its recruiting efforts from a more human-driven approach to a process that uses data to steer the course. There is a trove of data points that a company can collect on a job applicant, such as experience and education. But if HR allows these data points to drive the recruiting and interview process, they may be allowing this data to exploit innate biases, albeit unintentionally. If a data-driven process leans too heavily on quality of education, the process may filter out those candidates who may not have had a ready access to high-quality education, but still may be a good fit for the job. HR professionals need to be careful in implementing these types of processes and work to eliminate these issues, otherwise they may face heightened scrutiny. Continue Reading Technology Ahead of Laws and Regulations – Or Is It?

  • 04/13/2018 – Region 5 OSHA News Release – U.S. Department of Labor Finds Ohio Contractor Continues To Expose Roofers to Falls and Other Safety Hazards
  • 04/12/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Plastics Manufacturer For Workplace Safety Failures, Proposes Penalties of $435,679
  • 04/11/2018 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Landscape Industry Associations and Employers to Sponsor Southeast Safety Stand-Down Events Focusing on Preventing Heat-Related Illnesses and Landscaping Injuries
  • 04/09/2018 – Region 1 OSHA News Release – Lynnway Auto Auction to Correct Hazards, Implement Safety Measures, And Pay Penalties in U.S. Department of Labor Settlement
  • 04/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Seeks to Prevent Georgia Roadway Worksite Injuries Through Safety Stand-Down Events
  • 04/05/2018 – Region 7 OSHA News Release – Grain-Handling Industry and Safety Professionals Announce ‘Stand-Up for Grain Engulfment Prevention Week,’ April 9-13
  • 04/03/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Omaha Company for Exposing Workers To Trenching Hazards, Proposes $38,061 in Penalties

 

This post was written by Michael D. Yim  and originally posted on Kelley Drye’s Labor Days Blog.

As we previously posted, gender discrimination issues have been a hot topic at the National Labor Relations Board (“NLRB”). Now, it seems the NLRB is even more on board the #metoo movement – but with a twist, sexual harassment by unions. On February 20, 2018, the NLRB in ILA Local 28 (Ceres Gulf, Inc.) (NLRB 2018) issued a very concise, but biting decision that vacated an administrative trial court’s decision dismissing a breach of duty of fair representation case against a union for discriminating and sexually harassing a female union member. The NLRB’s rationale – the ALJ’s “credibility determinations about the [female employee’s] claim were based on sex stereotypes and demonstrated bias.” Wow. Mic drop.

In Ceres Gulf, the union operated an exclusive hiring hall which referred employees for work and training (for certification for certain jobs) based on seniority roster. The employee alleged that she made multiple requests for training and referrals. But, instead of granting her request, the union officer in charge of administering the seniority roster subjected the employee to groping and sexual propositions on at least 10 occasions. The ALJ rejected the employee’s version of the events because – wait for it:

It is simply implausible that [the employee who] appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed [the union officer] to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions … would have allowed [the union officer] to repeatedly violate her. It is also implausible that, if [the union officer] withheld training because she rejected his advances from 2010 to 2015, as she alleges, he would have then enrolled her for training in June 2015 after her rejection. It is also implausible that [the employee], who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about [the union officer] other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs). Continue Reading The NLRB Joins the #MeToo Movement

This post was originally posted on Kelley Drye’s Labor Days Blog.

The European Union is launching new privacy and data protection rules in May 2018. This new regulatory framework, known as the General Data Protection Regulation (GDPR) is known to have a substantial extra territorial reach (also likely to apply to every US organization processing personal information of even a single individual in the EU) and boast sanctions of up to € 20 million in fines or, in the case of an undertaking, 4 percent of the annual worldwide turnover.

The GDPR prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate, as is the case for the US. This may create a problem when an employer needs to comply with US discovery obligations.

It is Article 48 of the GDPR which explicitly states that a judgment by a non-EU court or administrative authority is not a valid basis for transferring data. Such orders or judgments will only be recognized if based on an international agreement, convention or treaty between the third country and the EU or member state, such as e.g. mutual legal assistance treaties or the Hague Convention.

After May 2018, disclosures to opponents in response to U.S. civil discovery requests involving data protected under GDPR will either need to rely on an appropriate international agreement or find other acceptable bases in the GDPR for transferring data out of the EU.

Preparation and coordination of all data transfers will be key in reconciling US discovery obligations and EU privacy legislation. The stakes, both on the US and EU side, have never been higher. The Kelley Drye Labor and Employment team stand ready to assist clients prepare for and navigate this complex new process.

Kelley Drye team: Barbara Hoey, Mark Konkel