Cross-posted from Employment Law Lookout.

Seyfarth Synopsis:  A string of recent class action lawsuits regarding businesses’ use of employees’ biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.

As biometric technology has become more advanced and affordable, more employers have begun implementing procedures and systems that rely on employees’ biometric data. “Biometrics” are measurements of individual biological patterns or characteristics such as fingerprints, voiceprints, and eye scans that can be used to quickly and easily identify employees.  However, unlike social security numbers or other personal identifiers, biometrics are biologically unique and, generally speaking, immutable.  Thus, unlike a bank account or a social security number, which can be changed if it is stolen, biometric data, when compromised, cannot be changed or replaced, leaving an affected individual without recourse and at a heightened risk for identity theft.  Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data.  And plaintiffs’ attorneys are taking notice, as the number of class action lawsuits in this area has surged in recent months.

Currently, there are three states that have statutes regulating the collection and storage of biometric data: Illinois, Texas, and Washington.  In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”).  Texas followed suit in 2009, and Washington passed its biometric privacy law in 2017. Continue Reading Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat

The General Data Protection Regulation is coming, and along with it, a significant expectation of increased harmonization in the privacy rules across the EU. Considering the 60-plus articles which directly impose obligations on controllers and processors, this isn’t an unreasonable sentiment. However (as is often the case with the EU), reality is a bit more complicated than what the expectations reflect.

The reason for the retained level of complexity even under the GDPR are what are known as “opening clauses”. These clauses permit a Member State to modify the provisions of the Article in which the clause resides. In effect, the opening clauses permit the Member State to introduce a more restrictive application of the GDPR obligation via local legislation.

These opening clauses are particularly important to note as there are a number of them (around 30% of the directly applicable Articles have opening clauses), and many of them address an already complicated area of data protection law – employment. While there are a number of companies who have a large consumer impact in the EU, there are just as many (if not more) who have workers in the EU, or have clients who have workers in the EU. As a consequence, the implementation of the GDPR doesn’t fully mitigate the patchwork quilt of local law when it comes to labor & employment law. This is both because of the opening clauses in a number of related Articles, as well as the plain text of Article 88.

The lack of consistency in HR-related data protection is particularly concerning with the advances in workforce management, monitoring, and the use of personal devices in the workplace (e.g. Bring Your Own Device, or “BYOD” environments). One of the ways that the regulators have attempted to address this very real issue around inconsistent GDPR obligations is with an update to the 2001 Article 29 Working Party opinion on data protection of employees. The new opinion, published on 23 June 2017, provides an update to the recommendations which were put in place prior to the age of social media and pervasive computing (i.e. Internet of Things).

While not mandatory, the Opinion does operate somewhat as a roadmap to the way regulators in the EU will consider enforcement – both in breach situations, as well as in accountability situations (i.e. when an entity has to “show” how they are compliant). The Opinion is also instructive as much of the analysis revolves around the concept of “proportionality”.

This balancing of the legitimate interests between employees and employers was not a commonly used method of legitimizing processing under Directive 95/46/EC and its local implementing legislation. However, it seems that this is the direction the Working Party is taking.  This may be seen as both a good and bad situation. On one hand, it indicates that the regulators are starting to understand the complexity of the modern workplace, and how rigid bright-line rules won’t really work. On the other hand, it would seem to require a significant amount of analysis by data protection experts (which is subsequently documented) showing the balance of interests doesn’t harm the employee.

In any event, at least in the realm of employment law, the GDPR isn’t going to be quite the panacea that many of us were hoping for. It is still going to be a complex, difficult to manage, area of law for the foreseeable future.

shutterstock_506771554Cross-posted from Carpe Datum Law

Another week, another well-concocted phishing scam.  The most recent fraudulent activity targeted businesses that use Workday, though this is not a breach or vulnerability in Workday itself.  Specifically, the attack involves a well-crafted spam email that is sent to employees purporting to be from the CFO, CEO, or Head of HR or similar.   Sometimes the emails include the name, title, and other personal information of the “sender” that we believe might be harvested from LinkedIn or other business databases.  The email asks employees to use a link in the phishing email or attached PDF to log into a fake Workday website that looks legitimate.  The threat actors who run the fake Workday website then use the user name and password to log into the Workday account as the employee and change their direct deposit bank/ACH information to another bank, relatable Green Dot, or similar credit card.

The fraud is typically only discovered when the employees contact HR inquiring as to why they did not receive their direct deposit funds.  Unfortunately it appears that spam filters and other controls are failing to prevent this email from infiltrating the organization’s network.

In order to prevent this from happening to your organization, Workday has posted several “best practice” tips on their customer portal.  The most impactful mitigation techniques include enabling and enforcing two factor authentication on your organization’s Workday instance, and changing your Workday settings to force administrative approval upon employee requests for direct deposit account change.  Both of these will help secure your Workday environment and avoid employee loss of paychecks.   Finally, always remember to train employees on fraudulent email identification through training and security drills/tests.

Wednesday, February 22, 2017
Washington, D.C.

Agenda
9:00 – 9:30 a.m. — Breakfast & Registration
9:30 – 11:00 a.m. — Program

Seyfarth Shaw LLP
975 F Street, N.W.
Washington, D.C. 20004
(202) 463-2400

Finding the delicate balance between an employee’s right to privacy and the employer’s need to run its business can be challenging. There are many legitimate reasons that an employer may have for intruding on otherwise “private” matters of employees, such as conducting workplace investigations, responding to agency inquiries or subpoenas, or fulfilling its obligations during discovery in a lawsuit. With the rapid surge in the use of technology and social media in the workplace, the stakes in the workplace privacy arena are becoming even higher for employers.

Please join us on Wednesday, February 22, for a discussion of what every employer needs to know regarding recent legal developments on select issues in workplace privacy, including:

  • Monitoring employee company and personal web-based electronic mail.
  • The NLRB’s developing case law on disciplining employees based on social media postings.
  • Privacy issues presented by Bring Your Own Device policies.
  • The use of social media in hiring and legal limits on accessing employee social media information.

Cost: There is no cost to attend but registration is required and seating is limited.

register

 

 

If you have any questions, please contact events@seyfarth.com and reference this event.

shutterstock_519689296Seyfarth Shaw is pleased to announce the launch of Carpe Datum Law, a one-stop resource for legal professionals seeking to stay abreast of fast-paced developments in eDiscovery and information governance, including data privacy, data security, and records and information management. Seyfarth’s eDiscovery and Information Governance (eDIG) practice group created Carpe Datum Law to serve as a timely and unique resource for executives and corporate in-house counsel to obtain reports on developments, trends and game-changing decisions in these data-driven areas of the law.

Click here to access the new Carpe Datum Law blogsite.

The Carpe Datum Law blog takes a comprehensive view of the legal and practical aspects of corporate data challenges, reflecting the broad strength across the spectrum of data law by Seyfarth’s veteran 14-lawyer eDIG practice group, which has served clients since 2004. Regular readers will benefit from its comprehensive perspective and guidance on how the law is adapting to the interrelated challenges of keeping corporate data secure and in compliance with data privacy laws, adapting to new best practices in information governance, and maintaining defensible data preservation, collection and review when eDiscovery is required.

Carpe Datum Law is a must-read for anyone expected to stay ahead of the curve on how best to manage the growing risks in these areas, in particular:

  • C-Level Executives whose portfolios of responsibility include managing risks with respect to their corporate data
  • In-House Counsel responsible for eDiscovery, data and cybersecurity, data privacy compliance and/or the enterprise’s information governance
  • eDiscovery, IT, IT Security and Privacy Managers who work closely on these issues with their organization’s executives and legal teams
  • Consultants, Academics and Thought Leaders who must stay up-to-speed on legal developments in order to serve their organizational clients

Whether steering policy or implementing it, Carpe Datum Law provides well-informed news and analysis that will keep you and your team up-to-speed. From judicial decisions implementing the new eDiscovery amendments to the Federal Rules of Civil Procedure to guidance on compliance with the upcoming European Union General Data Protection Regulation, Carpe Datum Law provides the news and seasoned analysis you would expect from Seyfarth’s eDIG group.

Carpe Datum Law can be accessed at www.carpedatumlaw.com.

CaptureOn Wednesday, November 2, at 1:00 p.m. Central, Seyfarth attorneys Karla Grossenbacher, Ari Hersher, Stacey Blecher, Meredith-Anne Berger, Elizabeth Levy and Selyn Hon will present “Navigating Employee Privacy Issues in the Workplace.”

The rise of technology in the workplace has resulted in a myriad of complex privacy issues. Employee privacy concerns are impacting employer decision-making more than ever. Is your company equipped to navigate these issues? In this cutting-edge webinar we will discuss:

  • The legal issues presented by an employer’s review of employee texts, emails and social media postings during workplace investigations;
  • The latest decisions from the NLRB regarding an employer’s ability to take action against employees based on social media postings;
  • Privacy considerations presented by the implementation of a BYOD policy; and
  • Private data security risks that arise from the use of cloud-based storage in the workplace

Please join us for this informative webinar so you will be prepared to confront the ever-increasing amount of privacy issues facing employers.

register

shutterstock_384992695Wearable device data may be the next big thing in the world of evidence for employment cases since social media. Given that it has already been used in personal injury and criminal cases, it is only a matter of time before wearable device data is proffered as evidence in an employment case.

From Fitbit to the Nike FuelBand to a slew of others, the worldwide wearable market has exploded in recent years. In a world increasingly obsessed with health and fitness, wearable devices offer instantaneous and up-to-the-minute data on a number of metrics that allow the user to assess his or her own health and fitness. Wearable devices can track information like heart rate, calories, general level of physical activity, steps taken, diet, blood glucose levels and even sleep patterns. Given the nature of the information captured, it is easy to see how wearable device data may be relevant to claims of disability discrimination, workers’ compensation and even harassment. Continue Reading Wearable Device Data: The Next Big Thing for Employment Litigation Cases

Cross Posted from Employment Law Lookout

PokemonYour employees may be on a quest to catch ‘em all. Over 15 million people have downloaded the Pokémon GO game since its release two weeks ago. In this augmented reality game, players use their mobile devices to catch Pokémon characters in real-life locations captured by the camera in a user’s cellular phone. Though the game is very popular with Pokémon GO players, employers may not like the game quite so much.

Data And Security Concerns

There are data security concerns that arise from use of the Pokémon GO app.

First, users that want to play Pokémon Go must sign in to the app. There are two ways to do so—through an existing Google account, or through an existing Pokémon Trainer Club Account. Up until very recently, the Pokémon website did not allow users to sign up for Pokémon Trainer Club Accounts due to overwhelming demand. Thus, for most people, the only way to play Pokémon GO was by signing in to the app with their Google accounts. Even though the option to create a Trainer Club Account is now available, doing so requires more time and effort than signing in through an existing Google account. Continue Reading Pokémon NO: New App Creates Risks For Employers

The clock is now ticking. On May 4th the European Parliament published the final text of the General Data Protection Regulation (“GDPR”), and the rules of the game have significantly changed – at least in the context of EU data protection law. First, the GDPR changes the underlying approach to data protection law, with a new emphasis placed on accountability and risk-based approaches. “Privacy by Design” and “Privacy by Default” have been included in the regulatory ecosystem. Second, significant changes have been made to the obligations of “controllers” and “processors”. These include specific criteria for having compliant privacy notices and vendor management contracts. Third, enforcement is now a very real, and potentially risky, thing. With the possibility of administrative fines being up to 4% of a business’ global gross revenue, private rights of action by individuals, and non-profit privacy watchdog groups (also known as “Civil Society”) having the right to complain of a company’s privacy practices directly to the local Data Protection Authorities; compliance with the GDPR will now be one of those risks that any business who touches EU data will need to seriously consider. Fortunately, the GDPR won’t go into effect until May 25th 2018. However, businesses with significant data from the EU need to start considering how to comply now. Continue Reading Europe Is Shifting, And It’s a Big Deal – The New GDPR

Cross Posted from Employment Law Lookout

Over the last decade, communication via email and text has become a vital part of how many of us communicate in the workplace. In fact, most employees could not fathom the idea of performing their jobs without the use of email. For convenience, employees often use one device for both personal and work-related communications, whether that device is employee-owned or employer-provided. Some employees even combine their personal and work email accounts into one inbox (which sometimes results in work emails being accidentally sent from a personal account). This blurring of the lines between personal and work-related communications creates novel legal issues when it comes to determining whether an employer has the right to access and review all work-related communications made by its employees. Continue Reading Monitoring Employee Communications: A Brave New World