My colleague Marc Herman returns today to bring back the story of wellness programs and whether they will continue to pass legal muster. In the first post of a two-parter, Marc updates us on some litigation. Read on.
Here’s one for you: Did you hear the one about the employee that turned down the
My colleagues, Ashley Mendoza and Alfredo Fernandez, return today for a guest post today that shows that employment law issues can sometimes present themselves in different formats. My thanks to the both of them in presenting a fairly advanced topic in a form that will hopefully be of interest to a few of you out there.
Imagine your company has employed a research scientist to support your technology programs. The scientist is a citizen of the People’s Republic of China and holds an H-1B visa, but is not authorized to view certain export-controlled technical data. Unclear of the restrictions in place, other company employees provide the foreign scientist with technical data related to a military program in the course of his job duties. This real life scenario recently resulted in a $100,000 settlement penalty with the U.S. State Department this summer.
It appears that a company policy to screen out foreign candidates for job openings of this sensitive nature would have prevented this violation and penalty, but a company also faces the challenge of avoiding discrimination in its hiring practices. Is this a lose-lose scenario? Not quite, but companies must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.
The Tricky Intersection of Legal Obligations
On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.
These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios. The OSC’s recent guidance and upcoming definitional changes within the export control laws do provide some general direction for employers; however several ambiguous issues remain unresolved.
What We Know About the Export Regulations in this Context
Exports are commonly associated with the shipment of a tangible item to a foreign country, but the U.S. export regulations have a much broader application. An export also includes the transfer of controlled technical data or technology to foreign persons, even when the transfer takes place within the geographic territory of the United States. Such a transfer is “deemed” to be an export to the country of the foreign person and is referred to as a “deemed export.”
Although not the only federal agencies administering export control laws, the U.S. State and Commerce Departments manage the two broadest export control systems. The U.S. State Department’s Directorate of Defense Trade Controls administers the International Traffic in Arms Regulations (“ITAR”), found at 22 C.F.R. §§ 120-130, which control defense articles and services. The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) administers the Export Administration Regulations (“EAR”), found at 15 C.F.R. §§ 730-774, which control commercial and dual-use items, as well as limited low-sensitivity military items. Generally speaking, all articles controlled under the ITAR and many articles controlled under the EAR require an export license before the export, including a deemed export, occurs.
Each set of regulations accounts for deemed exports but have slightly different definitions of key terms. In fact, new and revised definitions under both regulations become effective September 1, 2016. One primary intention of the definitional changes is to better harmonize the analogous definitions in both systems. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) or to persons who are protected individuals under the Immigration and Nationality Act (“INA”)(e.g., certain refugees and asylees).
The below table showcases a few of the new definitions, including the improved harmonization for key terms such as export and release.
Continue Reading How to Avoid Discrimination in Hiring, While Complying with Export Laws
Last week, I had the opportunity to speak to the Corporate Compliance Forum for the Connecticut Community Providers Association. My thanks to Gayle Wintjen, General Counsel of Oak Hill, for the invitation to speak.
The topic was a familiar one to this blog — Data Privacy. In the session, we tackled the new Connecticut law
With news of yet another breach of personnel data of nearly 21 million Americans yesterday, I invited my colleague William Roberts, to chime in with an update on a new law in Connecticut that updates data privacy requirements in the state. Bill heads up our Privacy and Data Protection team here and works a
As I said before, the notion that this might be a quiet year for employment law legislation at the Connecticut General Assembly has long since left the train station.
Indeed, we’ve appear to be swinging completely in the opposite direction. Anything and everything appears up discussion and possible passage this year — including items that really stood no chance in prior years.
I’ll leave it for the political pundits to analyze the why and the politics of it all. But for employers, some of these proposals are going to be very challenging, at best, if passed.
One such bill, which appeared this week on the “GO” list (meaning its ready for considering by both houses) is House Bill 6850, titled “An Act on Pay Equity and Fairness”. Of course, you won’t find those words in the bill itself which is odd. There is nothing about pay equity in the bill; indeed, it is much much broader than that.
It stands in contrast to, say, the Lilly Ledbetter Fair Pay Act, which tried to tackle gender discrimination in pay directly.
This bill would make it illegal for employers to do three things. If passed, no employer (no matter how big or small) could:
You might be wondering: Isn’t this first bill duplicative of federal law? And the answer is yes, and then it goes beyond it. Federal labor law (the National Labor Relations Act) already protects two or more employees discussing improving their pay as a “protected concerted activity”. It’s been on the books for nearly 80 years. So, as noted in an NPR article:
Under a nearly 80-year-old federal labor law, employees already can talk about their salaries at work, and employers are generally prohibited from imposing “pay secrecy” policies, whether or not they do business with the federal government.
This provision goes beyond that by making it improper for an employer to prohibit an employee from even disclosing another employee’s pay.Continue Reading “Pay Secrecy” Bill Goes Above and Beyond Other Proposals
Well, no one who has been reading this blog should be surprised by the news tonight out of the General Assembly.
Indeed, I’ve written about proposed bills that limit employer access to employee’s personal online account for years now with a lot back in 2013. (See prior posts here, here, here
Last Thursday, I had the opportunity to speak at the Tri-State SHRM Conference held at Foxwoods Resort Casino. The session was led by Marc Kroll of Comp360 and I thank him publicly for both the invitation and the coordination. But a post about the great work that HR consultants like Marc do is a
The snow may have stalled work in the state for a few days, but the Connecticut General Assembly is now in full swing with bills now being discussed and debated.
So far, the list of bills filed before the Labor & Public Employee Committee is small but that is expected to grow soon with bills
It may be hard to remember, but during the first year of the blog in mid-2007 to 2008, there was barely a mention of social media and its impact in the workplace. Just a single reference in January 2008 noting that with sites like Myspace (!), “employees from around the country can share information instantly, making it much easier to figure out if there are trends associated with the layoff that may give rise to a lawsuit.”
Then, in September 2008, I talked about how employers were considering using those sites to “screen” potential candidates for employment. I suggested against it at the time. But what I also suggested back then is that employers needed to recognize the sites’ growing influence.
Yes, some college grads put some boasts on their site, but Facebook has moved so quickly into the mainstream that many people are using it as a communication tool, far removed from their college years.
That was just five years ago, but really, it feels so much longer than that.
Flash forward to today. 91 percent of American own cell phones. 63 percent of those owners use their cell phones to go online, mainly through apps used on devices like the iPhone. As a September 2013 Pew Internet study found, a majority of Americans “now owns a smartphone, and mobile devices are playing an increasingly central role in the way that Americans access online services and information.”
Social media accounts for a significant portion of that usage. 89 percent (!) of 18-29 year olds online use social networking sites. Even among 30-49 year olds, that percentage is 78 percent.
But what sites are they using and how?
You’ve no doubt heard of YouTube, LinkedIn, Facebook and Twitter. Maybe Foursquare and Google+ (poor Google). And if you’ve been following the blog, you know that Instagram (a photo sharing site) and Vine (a video sharing site) are growing in influence as well. But what about everything else?
When I spoke to a group of people last week, a few wore their ignorance of social media as a badge of honor. But in my view, employers ought to understand the scope of the issue; they may not need to use all the sites, but it’s only when you understand how much is out there that you begin to appreciate the scope of the social media issue.
Take, for example, Whisper to which I referenced yesterday. A few people responded, “huh?”
Continue Reading Snap(chat), Kik & Whisper: What Social Networking Apps Your Employees Are Using Today
As I said in an earlier post, I’ll be speaking about Social Media and the Workplace, as part of WESFACCA’s “Day of Privacy” presentation later this week.
One of items I hope to touch on is the fact that with the proliferation of apps and social media, it is growing increasingly difficult for employers to