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Seventh Circuit Clarifies Scope of Article III Standing Under Illinois BIPA

On November 17, 2020, the Seventh Circuit held that allegations that a defendant violated Section 15(a) of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS § 14/1, et seq.—which requires an employer that collects biometric information from its employees to develop, publicly disclose and comply with a data-retention schedule and guidelines for permanent destruction of the biometric information—can constitute an “injury in fact” sufficient to confer Article III standing.  Fox v. Dakkota Integrated Systems, No. 20-cv-2872.  (We have blogged about BIPA-related standing issues, including the Bryant decision, here, here and here).

Background

Earlier this year in Bryant v. Compass Group USA Inc., the Seventh Circuit found that while the plaintiff employee could proceed under BIPA’s Section 15(b), she lacked Article III standing because she failed to plead a particularized injury-in-fact resulting from her former employer’s alleged failure to develop a publicly available data-retention policy pursuant to Section 15(a) of BIPA, reasoning that such duties are “owed to the public generally, not to the particular persons whose biometric information the entity collects.”  958 F.3d 617, 619, 626 (7th Cir 2020).  Until the recent decision in Fox, courts interpreted the Bryant decision to hold that all Section 15(a) plaintiffs lack standing to sue in federal court.

On April 29, 2019, Plaintiff Fox filed a putative class action in Illinois state court alleging BIPA violations premised on her former employer’s alleged failure to: (i) develop, publicly disclose and comply with a policy for the retention and destruction of biometric information pursuant to Section 15(a); (ii) obtain her informed consent prior to collecting her handprint in connection with its time-keeping system pursuant to 15(b); and (iii) obtain consent to disclose her biometric information to third parties pursuant to 15(d).  Dakkota removed Fox’s suit to federal court, where it successfully obtained a dismissal of the Section 15(b) and (d) claims in light of a Seventh Circuit ruling that similar BIPA claims by unionized airline employees were preempted by the Labor Management Relations Act (“LMRA”)), given that Fox was represented by a union while Dakkota employed her.  The Section 15(a) claim, however, was remanded to Illinois state court for want of Article III standing pursuant to the Bryant decision.  Dakotta appealed this remand decision to the Seventh Circuit.

The Seventh Circuit’s Reversal

The Seventh Circuit reversed, concluding that the Section 15(a) claim alleged a sufficiently concrete and particularized injury-in-fact because, unlike the plaintiff in Bryant, Fox alleged that Dakkota not only failed to develop and publicly disclose a data collection policy, but also unlawfully retained her biometric information after she was no longer employed.[1] The Seventh Circuit explained that:

Just as section 15(b) expressly conditions lawful collection of biometric data on informed consent, section 15(a) expressly conditions lawful retention of biometric data on the continuation of the initial purpose for which the data was collected. . . .  It follows that an unlawful retention of a person’s biometric data is as concrete and particularized an injury as an unlawful collection of a person’s biometric data.

Fox, at 15.

Implications

The Fox decision opens a path to federal court that was previously thought closed to employers defending Section 15(a) BIPA claims.  Indeed, it may provide employers with the option of removing such claims to federal district court where they can seek to leverage several employer-friendly BIPA decisions (including potential LMRA preemption with respect to unionized employees) and an arguably more stringent class certification analysis under Federal Rule of Civil Procedure 23.

 

[1] Section 15(a) requires an entity’s policy to provide for permanent destruction of biometric information either when the initial purpose of the collection has been served, or within three years of the individual’s last contact with the entity—whichever occurs first. 740 ILCS § 14/15(a).  Fox alleged that the purpose behind Dakkota’s collection and retention of her handprint for its timekeeping system was served when her employment concluded.

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NYU Labor Center Webinar: Re-Training America for the Future of Work

Proskauer partner Paul Salvatore will be participating in the NYU Labor Center Webinar: Re-Training America for the Future of Work. The webinar will take place virtually on Thursday, December 3rd from 9:00 AM – 12:00 PM EDT.

Leaders in government, academia and industry will explore policies needed to enhance the skills of workers to meet labor demands in both automating and human-touch workplaces. Participants will discuss the roles of employer groups, worker organizations, regional government, and higher education and contemplate new structures for training initiatives, and how to address potential legal barriers to them.

Discussants include:

  • John P. Pallasch, Assistant Secretary for Employment and Training, U.S. Department of Labor
  • Daniel Bustillo, Director, Healthcare Career Advancement Program (H-CAP)
  • Robert Chiapetta, Director of Government Relations, Toyota USA
  • Morris Kleiner, AFL-CIO Chair in Labor Policy, University of Minnesota Humphrey School of Public Affairs
  • Livia Lam, Senior Fellow and Director of Workforce Development Policy, Center for American Progress
  • James Murphy, Esq., Spivak Lipton
  • Amy Peterson, Executive Director, NYC Mayor’s Office of Workforce Development
  • Paul Salvatore, Esq., Proskauer
  • Co-facilitators :Prof. Samuel Estreicher and Prof. Jonathan F. Harris, NYU School of Law

For more information about the NYU Labor Center Webinar: Re-Training America for the Future of Work, please click here.

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The Sedona Conference Working Group 12 on Trade Secrets Annual Meeting 2020, Online

John Barry will be participating in The Sedona Conference Working Group 12 on Trade Secrets (WG12) Annual Meeting. The conference will take place virtually from Monday, November 9 to Tuesday, November 10 from 11:30 AM – 4:30 PM ET each day. This meeting will advance WG12’s first set of commentary drafting team efforts towards non-partisan consensus publication for public comment by end of 2020/early 2021.

John will be presenting with a panel of leading legal experts who will address the following topic: “Inevitable Tension: Reconciling Public Court Access with Protecting Trade Secrets in Litigation”.

Overall, the conference will include the following topics:

  • Caselaw Synergies: Six Recent Trade Secret Cases Raising Issues for Dialogue Over the Next Two Days
  • Leveraging Internal Assets in the Governance and Management of Trade Secrets
  • Trade Secret Issues Across International Borders
  • Inevitable Tension: Reconciling Public Court Access with Protecting Trade Secrets in Litigation
  • Tailoring Remedies to the Misappropriation: Equitable Relief, Damages, or Both
  • Judicial Roundtable

For more information about The Sedona Conference Working Group 12 on Trade Secrets (WG12) Annual Meeting, please click here.

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New York Court Dismisses Amazon Workers’ COVID-19 Health and Safety Claims

*** UPDATE: On November 24, 2020, the Plaintiffs in Palmer, et al. v. Amazon.Com, Inc., et al. filed a notice of appeal. The Plaintiffs appealed Judge Cogan’s order dismissing the case to the Second Circuit. We will continue to monitor this case and provide updates. ***

On November 2, 2020, the Eastern District of New York issued a notable decision regarding an employer’s compliance with federal and state public health law during the COVID-19 pandemic. This is not the only case of its kind during the pandemic, and we certainly don’t expect that it will be the last as employers should be prepared to defend claims that they did not follow the governing health protocols or otherwise ensure the health and safety of their employees.

Relevant Background

In Palmer, et al. v. Amazon.Com, Inc., et al., case number 20-cv-2468 (E.D.N.Y. 2020), employees working at an Amazon fulfillment center on Staten Island, New York, and members of their households, brought claims against the online retailer. The plaintiffs asserted Amazon’s actions constituted a public nuisance and it failed to provide a safe workplace under federal and New York COVID-19-workplace guidance. The plaintiffs also alleged that the employer failed to timely pay New York State COVID-19 sick leave.

Against the background of the COVID-19 pandemic, the court noted the CDC’s recommendations that employers (i) take steps to reduce transmission of the virus at the workplace, (ii) develop flexible leave policies, and (iii) reduce face-to-face contact between employees.  Likewise, New York State guidance requires employers to, among other things, operate at reduced capacity, stagger shifts and tasks to minimize congestion, and conduct regular cleaning. The New York State COVID-19 Paid Sick Leave Law also requires large employers like Amazon to provide at least two weeks of paid sick leave to employees subject to a COVID-19 quarantine order.

In this case, plaintiffs argued “Amazon’s productivity requirements prevent[ed] employees from engaging in basic hygiene, sanitization, and social distancing[,]” causing employees to skip hand washing, skip sanitizing workplaces, and operate in a way that prevented social distancing in the facility. Plaintiffs further claimed the air conditioning at the facility was only available in certain areas, preventing proper social distancing, and Amazon’s employee contact tracing was inadequate.

Plaintiffs also argued Amazon did not apply the New York COVID-19 leave law appropriately by failing to clearly communicate the availability of leave and promptly pay employees who took leave. Further, they argued Amazon’s existing leave policies were inadequate and did not encourage employees to take leave if they experienced symptoms of COVID-19.

The Court’s Decision

The court dismissed the plaintiffs’ public nuisance and breach of duty to provide a safe workplace claims, finding that the primary-jurisdiction doctrine applied. This doctrine allows courts to defer ruling on matters that should be left to the discretion of an appropriate administrative agency to decide. Here, the court explained that the federal Occupational Safety and Health Administration (OSHA) is specifically charged with regulating health and safety in the workplace, and has broad discretion to enforce the Occupational Safety and Health Act. According to the court, “the central issue in this case is whether Amazon’s workplace policies at [the fulfillment center] adequately protect the safety of its workers during the COVID-19 pandemic.” In that regard, the court found OSHA is the proper actor “to strike a balance between maintaining some level of operations in conjunction with some level of protective measures” because it has the expertise and discretion to analyze whether Amazon’s employment practices created an unsafe workplace or otherwise complied with applicable guidance.

The court further noted that even if the primary-jurisdiction doctrine did not apply, the plaintiffs’ public nuisance claim would fail because the claim requires plaintiffs’ injury be different in kind from any injury suffered by the public. Here, the plaintiffs’ alleged injuries – that is, increased risk of contracting COVID-19 and related fear of the same – is a risk common to the public and importantly, the public cannot avoid contracting COVID-19 simply by avoiding the fulfillment center or its employees.

With regard to the plaintiffs’ breach of duty to provide a safe workplace claim brought under the New York Labor Law, the court found this claim to be essentially a negligence claim. The court found to the extent the claim was based on a past harm, that plaintiffs’ safe workplace claim was barred by New York State’s Workers’ Compensation Law, which bars employees from bringing negligence claims against employers arising from workplace injuries or illnesses. To the extent the claim was based on the threat of future harm, it failed because negligence claims cannot be brought for potential future harm that has not yet occurred.

Finally, the court dismissed the plaintiffs’ claims that Amazon failed to pay COVID-19 sick leave, finding that COVID-19 leave pay is not ‘wages’ for purposes of the New York Labor Law’s pay requirements. Despite the New York State Department of Labor’s (NYDOL) COVID-19 “Frequently Asked Questions” webpage stating that COVID-19 paid sick leave is subject to the State’s frequency of pay requirements, and the court’s recognition that an agency’s consistent and long-standing interpretation of a law it administers is entitled to deference, the court found the NYDOL’s position was in fact not entitled to deference. Specifically, the court found that the Department’s stance conflicted with prior guidance stating that paid sick time is generally not a benefit for which the Labor Law imposes a prescribed method of payment.

Takeaways

The court’s ruling is notable for many reasons, including insofar as it recognizes that determining whether an employer complied with workplace safety standards is best left to OSHA, the federal agency that is suited to analyzing such issues. The case is also a reminder that New York’s Workers’ Compensation Law provides a strong defense to claims of workplace injuries that were allegedly the result of an employer’s negligence, including when it comes to implementing the health and safety requirements that employers must follow during the COVID-19 pandemic. Of course we will continue to monitor this case, and others like it, and report on any noteworthy developments.

* * *

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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DOL’s New Opinion Letters Examine Rules on Voluntary Training Time, Travel Time

On November 3, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued new opinion letters addressing the compensability of time spent by employees attending voluntary training programs and in work-related travel.

The rules at issue only apply to non-exempt (e.g., overtime-eligible) employees.  If the time is considered “hours worked” under the FLSA, it is not only compensable, but it must also be included in counting the number of hours worked for purposes of determining whether the weekly overtime threshold has been met—regardless of whether the employee is paid hourly, through a salary, or on some other basis.

Voluntary Training Time

In FLSA2020-15, WHD examined a hospice care provider that provides funds to non-exempt employees for continuing education.  The employees do not have to use the funds, or to attend any particular continuing education classes.  The continuing education is entirely voluntary, and the employees gain no work-related benefit from attending and incur no penalties for not attending.

Under the FLSA regulations, employers must pay employees for time spent in training, educational, and similar programs unless all of the following four criteria are met:

  1. Attendance is outside the employee’s regular working hours;
  2. Attendance is voluntary;
  3. The training, education, etc. is not related to the employee’s job; and
  4. The employee does not perform any productive work during such attendance.

With respect to the third requirement, the regulations provide two exceptions.  First, under 29 C.F.R. §785.30 (the “independent training” exception), if employees on their own initiative attend an independent school, college, or trade school after hours, the time is not considered hours worked (and therefore is not compensable) even if the courses are related to their jobs.  Second, under 29 C.F.R. §785.31 (the “special situations” exception), time spent by employees outside of working hours voluntarily attending courses established by their employer for the benefit of employees (and which correspond to courses offered by independent bona fide institutions of learning) is not considered hours worked even if the courses are directly related to their jobs.

In the opinion letter, WHD looked at six different scenarios, in each of which it was assumed that employee attendance was voluntary and that the employees did not perform any productive work:

Scenario Opinion Notes
An on-demand webinar directly related to the employee’s job, which counts toward the employee’s professional licensing requirements for continuing education, viewed after working hours. Not compensable time, under the “special situations” exception. Whether the course is offered by the employer or by a third party is immaterial, as is the fact that the nurse could have viewed the webinar during working hours.
An on-demand webinar directly related to the employee’s job, which does not count toward the employee’s continuing education requirements, viewed after working hours. Unclear on the facts presented to WHD. If additional facts demonstrated that the webinar corresponds to courses offered by independent bona fide institutions of learning, and the other regulatory requirements are met (e.g., voluntariness, no productive work), the time would not be compensable.  Similarly, if the employee attends an independent school, college, or trade school and the webinar is part of that attendance, the time would not be compensable.
An on-demand webinar directly related to an employee’s job, which does not count toward the employee’s continuing education requirements, viewed during working hours. Compensable, because it takes place during working hours. The employer can establish a policy prohibiting viewing during regular working hours.
An on-demand webinar not directly related to an employee’s job, which does not count toward the clerk’s continuing education requirements, viewed during working hours. Compensable, because it takes place during working hours. The employer can establish a policy prohibiting viewing during regular working hours.
An on-demand webinar not directly related to an employee’s job, which counts toward the employee’s professional licensing requirements for continuing education, viewed during working hours.

 

Compensable, because it takes place during working hours. The employer can establish a policy prohibiting viewing during regular working hours.
An out-of-state weekend conference with some topics that relate directly to an employee’s job and some topics that don’t, components of which count toward the employee’s professional licensing requirements for continuing education.  Both the travel and the conference cut across the employee’s normal work hours, but the actual conference occurs on days the employee doesn’t normally work. Not compensable time, under the “special situations” exception. Because the time spent attending the conference is not considered hours worked, the travel time is similarly excludable as personal travel time.

 

Travel Time

In FLSA2020-16, WHD examined a construction company whose non-exempt foremen and laborers work at job sites in various locations.  The foremen travel to the company’s headquarters at the beginning of a job or work day to retrieve a company truck; drive the truck to a job site, where the truck transports tools and materials; and return the truck to the company’s headquarters at the end of the job or work day.  Laborers have the choice of driving directly to the job site at the beginning of the work day or driving to the company’s headquarters and riding to the job site with a foreman.

Under the FLSA regulations, an employee’s regular commute from 凯发国际版home to work at the beginning of the work day, or from work to 凯发国际版home at the end of the work day, is not compensable.  This is true whether the employee works at a fixed location or at different job sites.  By contrast, when an employee is required to report to one work location (e.g., to retrieve instructions, to pick up tools or materials, or otherwise to perform work) and then to travel to another work location that same day, the travel time from the first work location to the next is considered “all in the day’s work” and is compensable under 29 C.F.R. § 785.38.  Similarly, under 29 C.F.R. § 790.6(a), travel time is compensable if it is part of a “continuous workday”—that is, if it occurs after the employee begins the first principal activity on a workday and before the employee ceases the performance of the last principal activity on a workday.

Two exceptions to the “continuous workday” doctrine exist—for bona fide meal periods and for off duty time.  Under 29 C.F.R. § 785.19, bona fide meal periods (ordinarily of 30 minutes or longer) during which an employee is completely relieved from duty are not compensable.  Under 29 C.F.R. § 785.16, periods during which employees are completely relieved from duty and which are long enough to enable them to use the time effectively for their own purposes are not hours worked.

Under 29 C.F.R. § 785.39, when work-related travel includes an overnight stay away from the employee’s 凯发国际版home community, the travel time that occurs during the employee’s normal work hours is compensable, regardless of whether the travel occurs on one of the employee’s normal workdays or whether it occurs on what would otherwise be a non-workday.  Conversely, travel time that occurs outside the employee’s normal work hours is not compensable, regardless of whether the travel occurs on a workday or non-workday.  For example, if an employee who is required to travel and stay overnight in another city is normally scheduled to work 9:00 a.m. to 5:00 p.m. Monday through Friday and the employee is required to travel between the hours of 6:00 p.m. and 11 p.m. (on any day of the week), such travel time is not compensable.  If, however, the employee is required to travel between the hours of 9:00 a.m. and 5:00 p.m. (on any day of the week), such travel time is compensable.

In the opinion letter, WHD looked at three different scenarios:

  • Scenario 1: The job site is close to or within the same city as the company’s headquarters.
  • Scenario 2: The job site is between 90 minutes and four hours’ travel time from the company’s headquarters, and the company pays for hotel accommodations near the job site during the duration of the job.  The laborers stay in the hotel during the duration of the job.
  • Scenario 3: Same facts as Scenario 2, but the laborers choose to travel between the job site and their 凯发国际版homes each day rather than stay at the hotel.

In each of the three scenarios, the foremen’s travel time between the company’s headquarters (where they retrieve the company truck) and the job site is compensable.  The retrieval of the truck is integral and indispensable to the principal activities the foremen are employed to perform, and the travel time falls within the “all in the day’s work” regulation.

In Scenario 1, the laborers’ travel time to and from a local job site is not compensable, regardless of whether they commute directly to and from the job site or whether they choose to meet at the company’s headquarters and ride with the foremen in a company truck to the job site.

In Scenario 2, the laborers who drive their personal vehicles to the job site at the beginning of the job and to their 凯发国际版homes at the end of the job must be paid for such time spent driving to the extent it cuts across their normal work hours, even if they are traveling on what would otherwise be a non-work day. The same rule applies if the laborers are passengers in others’ vehicles.  If, however, the company offers a laborer the opportunity to ride to the remote worksite with a foreman in a company truck (in which case the laborer would meet the foreman at the company’s headquarters), the company may choose to count as hours worked either (a) the time that accrues during a trip in the company truck or (b) the time the laborer actually takes to travel to the remote worksite.  For example, if the company gives a laborer the opportunity to ride with a foreman in a company truck and that trip would take three hours, but the laborer chooses to drive directly from 凯发国际版home to the worksite and that trips takes four hours, the company would only have to pay for three hours of travel time.

Once at the job site, the travel time from the hotel to the job site at the beginning of the day, and from the job site to the hotel at the end of the day, is considered part of the everyday commute and is not compensable.

In Scenario 3, in which the laborers choose to drive from their 凯发国际版homes to the remote job site each day (and do not stay overnight at the hotel), the initial drive to the job site at the beginning of the job and the final drive 凯发国际版home at the end of the job is treated the same way as in Scenario 2—the time is compensable to the extent it cuts across their normal working hours (subject to the company’s right to pay for fewer hours if the company offers the laborers the opportunity to ride with a foreman in a company truck, that ride would take fewer hours, and the laborers decline the opportunity and choose to drive themselves).  Aside from the initial drive to the job site at the beginning of the job and the final drive 凯发国际版home at the end of the job, the laborers’ travel time 凯发国际版home and back to the job site during the duration of the job is considered part of the everyday commute and is not compensable.

These travel scenarios are illustrative, but WHD concedes that the FLSA regulations “do not purport to address every conceivable situation in which an employee must travel for work.”  WHD also notes that “[t]he FLSA is not an inflexible bar that places employer and employee in opposition; it recognizes that employment is a relationship that both parties enter into for their mutual benefit.”  Employers with travel time circumstances that do not fit squarely within the scenarios examined in the opinion letter, or otherwise within the examples included in the travel time regulations, should consult with experienced wage and hour counsel prior to making decisions or rolling out policies regarding the compensability of such time.  Employers must also consider whether state wage and hour laws require travel time to be paiod, even if federal law does not.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

 

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DC Paid Voting Leave Law Funded in Time for Election Day

Quick Hit: As we Leave to Vote Amendment Act of 2020 (the “Act”) which grants all D.C. employees two hours of paid leave to vote in person.  Although the Act was signed into law on April 27, 2020, its enactment was subject to the measure receiving funding under the fiscal 2021 budget and finance plan.  Proskauer has received confirmation from a member of staff at the D.C. Council confirming that the Act was funded in the fiscal 2021 budget and became effective as of October 1, 2020.

More Detail:  Upon an employee’s request, an employer will be required to provide the employee at least two hours of paid leave to vote in person in any public election in the District.  Employees ineligible to vote in D.C. will also be eligible to receive two hours of paid leave to vote in person in any election run by the jurisdiction in which the employee is eligible to vote (for instance, Virginia or Maryland).

The new law broadly defines “employee” to include all employees eligible to vote and covers every “employer” (though the law is silent on its extraterritorial application). Employers can require that employees requesting time off to vote provide notice a reasonable length of time in advance, and does not address the amount or form of notice required.  Similar to other paid voting leave laws, the D.C. law will permit employers to specify the hours during which an employee may take voting leave, including taking leave during an early voting period instead of on the actual day of the election.

Employers are prohibited from: (1) deducting from an employee’s salary, wages or accrued leave for paid voting leave; (2) interfering with, restraining or denying any attempt to take paid voting leave; and (3) retaliating against an employee for taking paid voting leave.  In addition, the law will provide students a two-hour excused absence to vote in person.

The law provides that employers will be required to post a notice in a conspicuous place that includes an easily understood description of the new law, which will be developed by the D.C. Board of Elections. The D.C. Board of Elections will also be issuing regulations interpreting the law. As of the writing of this post, however, the D.C. Board of Elections has yet to publish such notice or regulations.

Key Takeaway: Employers in D.C. should review their existing voting leave policies to ensure compliance with the Act.

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