Compliance Stuff

  Communication during a data breach is challenging in the best of circumstances, and control of information, especially early in a breach response, is critical. B elow are some DOs and DON’Ts for communicating during a data breach.  The security incident response process inevitably brings a myriad of challenges for a company unfortunate enough to experience one. Although implementing an appropriate communication strategy may not be at the top of the list of the initial concerns for a company in the throes of a ransomware attack or other type of security incident, it should be. Appropriate communication discipline will help protect attorney-client privilege and similar legal protections and mitigate the significant risks (legal, reputational, financial) associated with the unintended disclosure of incident-related communications.  With this in mind, we have included below a set of  Communication Dos and Don’ts  to help companies approach this aspect of the incid...

  On September 11, 2024, the U.S. Court of Appeals for the Fifth Circuit upheld the U.S. Department of Labor’s (DOL) authority to use a salary basis to define its white-collar overtime exemptions. Quick Hits The Fifth Circuit upheld the authority of the DOL to include a salary basis in the test in defining the white collar overtime exemptions. The ruling is a win for the DOL, which is currently defending its latest increase to the minimum salary thresholds for the white-collar exemptions. The Fifth Circuit, in  Mayfield v. U.S. Department of Labor , held that a 2019 DOL rule, which sought to raise the minimum salary requirement for the so-called white collar or executive, administrative, or professional (EAP) employee exemptions to the Fair Labor Standards Act (FLSA), “fell within the [DOL’s] explicitly delegated authority to define and delimit the terms of the Exemption.” The ruling is a significant win for the DOL as it defends its  new April 2024 rule  to further...

  Takeaway:   Procedural missteps might result in prolonged litigation, such as having to defend claims before a jury in the first place, even if they don’t necessarily lead to liability. An information technology worker with a lifting restriction failed to persuade a jury that she could perform her job’s essential functions . The California Court of Appeal affirmed a ruling in the employer’s favor, despite its finding that the employer’s process of determining the essential job functions was flawed. In April 2017, an on-the-job incident occurred in which the plaintiff, who worked for Riverside County, Calif., rode in a work vehicle where a fire extinguisher had exploded. As a result of exposure to chemicals in the fire extinguisher, she developed a condition called chemical pneumonia. To address her condition, she saw a doctor, who performed a full physical evaluation. A medical assistant checked a circle on an injury form indicating that the plaintiff “constantly” had to li...

  Last week’s decision by the   Third Circuit Court of Appeals ,   Morgan v. Allison Crane & Rigging LLC , stands as a reminder to employers to exercise caution in how they navigate accommodating employees with temporary medical conditions. After being diagnosed with a herniated disc, the plaintiff’s chiropractor recommended that his employer allow him to work light-duty for 30 days, which the company originally approved . But the company then fired the plaintiff after he declined to take a truck driving assignment on the basis that taking that assignment would have inflamed his back injury. The District Court rejected the plaintiff’s claim under the  Americans with Disabilities Act (ADA) , finding his back pain was not a “disability” under the ADA because it was temporary and non-chronic impairment . Reversing and remanding to the trial court for further proceedings, the Third Circuit unanimously held on September 4, 2024 that the t rial court applied an incorr...

  How employers address employees’ use of social media as a forum to engage on political issues entails a range of considerations. Social media’s potential to reach an outsized audience compared to traditional venues for political discourse may increase the negative effects of controversial political speech in the workplace. Social media content created and transmitted entirely outside the workplace without the use of company resources can still create a hostile work environment under certain circumstances and may be cited as evidence of employer bias in a lawsuit. Employers should be aware of their rights to restrict certain uses of social media as well as employees’ rights in this area. With the election around the corner, employers should review and if necessary update their social media policies and otherwise be prepared to act proactively to mitigate social media-related issues before or shortly after they arise. In 2017, former Supreme Court Justice Anthony Kennedy noted in...

  When presidential administrations change, it’s common to see significant shifts in policy via new regulations, executive orders, different interpretations of federal laws, and changes to enforcement priorities, budgeting, and staffing of federal agencies. What changes can employers expect to see in employment law in the next few years if Vice President Kamala Harris wins the presidential election in November? And what shifts are expected if former president Donald Trump wins? It’s possible to draw some predictions from the two candidates’ campaign promises and governing histories. Quick Hits Vice President Kamala Harris and Donald Trump have voiced differing approaches toward the economy and organized labor during their campaigns. Employers can expect federal laws and regulations to shift based on this year’s election results. Minimum wage, paid leave mandates, and tax rates could change based on who wins the election. Minimum Wage and Overtime Harris has supported increasing the...