International In-house Counsel Journal Vol.14, No. 56, Summer 2021, 1

“All Sold Out” – Practices: The Virtual Tour

SUSAN F. FRIEDMAN Area Vice President & Group Coverage/Claims Counsel Arthur J. Gallagher & Co.

As we continue to zoom in and out of each other’s lives, the curtain rises on the global stage with an inconsistent tempo for in-house counsel managing employment issues. We “shine a light” on the havoc wreaked on the employment landscape by COVID-19 causing “heartache all over the world.” Global employers grapple with furloughs, reductions in force, leave laws, teleworking, return to protocols, vaccinations1 and a medley of challenges never before contemplated. Although countries on all continents have anti-discrimination laws in place, systemic racism, sexism, ageism, and discrimination based on disability seep into corporate employment decisions. These decisions are further complicated by a layer of health concerns prompting employees to question the safety of the workplace and compliance with government guidelines/regulations.2 Employers are asked to address the “19th nervous breakdown” of employees who have anxiety and a generalized fear of working under potentially hazardous conditions as well as inquiries surrounding disabilities and whether remote working can continue in perpetuity. Although COVID-19 may take center-stage, and its impact will persist far into the future, “yesterday’s papers” are still today’s news with the ongoing trends of #MeToo, Black Lives Matter, Civil Unrest, Racial Injustice, DEI (, Equity and Inclusion), transgender rights, employee classifications, pay parity, biometrics and privacy, and religious liberties, among others. This article provides sound bites from the general global employment environment, claims set forth against employers, critical areas that continue to be of concern to in-house counsel, and the focus of the plaintiffs’ bar. To keep in-house counsel “cool, calm and collected”, we conclude with a brief discussion of the insurance coverage available to assist with these matters. So, “on with the show” as we continue on our Virtual Tour.

Global Jam Session -- “Don’t Shut Me Down” – Employment Landscape The rhythm of the world fluctuates as countries on separate continents experience the “social disease” of COVID-19 at different points on the scale – either ascending or descending. Without exception, however, all nations have used every instrument available to strike a common chord between employers and employees.

1 See, e.g., EEOC Guidance, U.S. EQUAL EMP. OPPORTUNITY COMM’N, www.eeoc.gov/guidance. 2 See, e.g., Occupational Safety and Health Administration, U.S. DEP’T OF LAB., www.osha.gov; Daniel Ferguson, Coronavirus: Returning to Work, UK PARLIAMENT: HOUSE OF COMMONS LIBRARY (May 5, 2021), https://commonslibrary.parliament.uk/research-briefings/cbp-8916/library.

International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online

2 Susan Friedman

Each country has implemented some form of temporary anti-crisis coronavirus legislation inclusive of Executive Orders, Decrees, Ordinances and amendments to Labour Codes with the goal of making the financial and physical well-being of the working population a paramount priority. Here, we examine a random sample of countries and some of the more pressing employment issues confronting global . At the outset of the pandemic the health and safety of employees took top billing. Whether it be Australia’s Work Health and Safety Act of 2011 (as amended in 2017)3, European Union Directives4 that must be followed by member countries, China’s Work Safety Act of PRC (2002)5, India’s Occupational Safety, Health and Working Conditions Code (2020)6, Canada’s Workplace Safety & Insurance Act Part III7 or South Africa’s Occupational Health and Safety Act8, the intent is the same – to protect workers by providing a workplace free of health and safety hazards. Protection came in the form of immediate requirements of facial masks/coverings, social distancing, and sanitizing environments. Working in unison with the governmental occupational health and safety administrations, designated regulatory agencies accepted worker complaints when employer protective measures failed thereby providing the overture for the first set of employee claims.9 Employee claims against employers often sound the “” trumpet. Although many jurisdictions around the world10 prohibit retaliatory action against employees who articulate concerns pertaining to workplace safety, it is vital that multi-national employers keep apprised of the critical differences in world cultures and jurisdictions to effectively manage whistleblower activity. The “beast of burden” was not only placed on employers, but also on employees who were expected to contribute to the fight against the pandemic. Consider the Australian case of Fesshatsyen v. Mambourin Enterprises Ltd. (2021) FWC1244 in which the Fair Work Commission ruled in favor of the employer who summarily dismissed an employee for continuing to work notwithstanding a body temperature reading requiring her to leave the workplace in accordance with company rules. The Fair Work Commission (FWC) determined that the employee’s failure to comply with the lawful and reasonable COVID- 19 safety procedures in the workplace was sufficient grounds for termination. A similar case was decided in Germany by the Regional Labour Court of Dusseldorf in which an employee failed to socially distance and did not adhere to hygiene rules (failed to cover mouth/nose when coughing and sneezing).11 As a result, the employee was terminated with no notice. The Court held the termination to be ineffective.12 The Court made clear, however, that a dismissal is justified where an employer can prove non-

3 Work Health and Safety Laws, QUEENSLAND GOVERNMENT: WORKSAFE, https://www.worksafe.qld.gov.au/laws-and- compliance/work-health-and-safety-laws. 4 Safety and Health Legislation, EUROPEAN AGENCY FOR SAFETY AND HEALTH AT WORK, https://osha.europa.eu/en/safety-and-health-legislation. 5 Safety Production Law of the People’s Republic of China, THE CENTRAL PEOPLE’S GOVERNMENT OF CHINA (May 27, 2006), http://www.gov.cn/ztzl/2006-05/27/content_292725.htm. 6 The Occupational Safety, Health and Working Conditions Code, 2020, PRS LEGISLATIVE SEARCH, https://www.prsindia.org/billtrack/occupational-safety-health-and-working-conditions-code-2020. 7 https://www.ontario.ca/laws/statute/97w16. 8 Occupation Health and Safety Act, 1993 (Act No. 85) (as amended by Occupational Health and Safety Amendment Act, 1993 No. 181) (S. Afr.), https://www.gov.za/sites/default/files/gcis_document/201409/act85of1993.pdf. 9 See, e.g., HEALTH AND SAFETY EXECUTIVE, www.hse.gov.uk; GOVERNMENT OF WESTERN AUSTRALIA: DEPARTMENT OF MINES, INDUSTRY REGULATION AND SAFETY, [email protected]; Latest Regulatory Information, LAWS & REGULATIONS DATABASE OF CHINA, https://law.moj.gov.tw; CANADA: JUSTICE LAWS WEBSITE, https://laws-lois.justice.gc.ca. 10 Germany, Australia, Canada, China, Italy, Spain, Netherlands, UK, among others include whistleblower protection within the occupational health and safety laws or labor codes. 11 See Germany: Works Council Brings Claim Against Employer for Video Conferencing Equipment, L&E GLOBAL (June 29, 2021), https://knowledge.leglobal.org/corona/country/germany/. 12 Id. Employment Practices 3 compliance with COVID-19 workplace safety protocols.13 In contrast, the U.K. Employment Tribunal in Deimantas Kubilius v. Kent Foods Ltd.14 determined that the employer was justified in summarily dismissing an employee who refused to adhere to the company policy of wearing a face mask. Staying in cadence with Australia, Germany and the U.K., in LIUNA, local 183 v. Aecon Industrial15 a Canadian arbitrator confirmed an employer’s decision to terminate a construction worker employee for violating the company’s COVID-19 safety protocols. Here, the employee experienced coronavirus symptoms, was told to isolate at home and await instructions from the company nurse. The employee never spoke to the nurse, but reported to work with a runny nose five days later for fear of losing his .16 The Canadian arbitrator upheld the employer’s dismissal, because the employee knowingly created a health and safety risk for his co-workers.17 Finding themselves on “shakey ground”, with employee health and safety, prompted governments across the globe to implement remote working regulations. The federal government in Brazil issued MP No. 1046/2021, an Executive Order re-establishing a number of measures implemented in 2020 inclusive of flexibility in adopting telework policies.18 Spain passed Royal Decree 28/2020 to provide a legal framework of the rights and duties of employers and employees with respect to remote working.19 The primary focus of the Decree was to require formal written agreements memorializing the remote work arrangement.20 Notably, the Decree includes an anti-discrimination provision prohibiting all discrimination, including denial of promotions or terminations, against employees who work remotely.21 Leaving Spain and following the “midnight sun” to Norway, the Norwegian government encouraged employers to coordinate remote work arrangements. This flexibility existed prior to the onset of COVID-19 with the Norwegian regulation on home (FOR-2002- 07-05-715), requiring a separate written agreement in addition to an employment agreement.22 Unlike Norway, Poland had no formal remote work regulation in place until passage of the Anti-Crisis Shield 4.0 allowing remote work at the employer’s request. Similarly, in Russia, lawmakers amended the Russian Labor Code to include provisions for remote work.23 In a legislative “first”, Colombia passed Law 2088 of 2021 permitting employees to work outside the customary workplace.24 Shifting continents, “when all is said and

13 Id. 14 Deimanta Kubilius v. Kent Foods Ltd. [2021] UKET 3201960/2020 (Eng. & Wales). 15 LIUNA v. Aecon Industrial, 2020 CanLII 91950 (Can.). 16 Id. 17 Id. 18 This Executive Order is to continue to December 2021. See generally Brazil: Government Introduces New Emergency Program to Sustain Employment Amid COVID-19 Crisis, L&E GLOBAL (May 27, 2021), https://knowledge.leglobal.org/corona/country/brazil/. 19 See generally Spain: Alteration of Job Modality Ruled a Substantial Modification that Exceeds the Company’s Capacities, L&E GLOBAL (June 29, 2021), https://knowledge.leglobal.org/corona/country/spain. 20 Id. 21 Id. 22 See generally, Norway: New Initiative Aim to Improve Work Performed at Home, L&E GLOBAL (Oct. 18, 2020), https://knowledge.leglobal.org/corona/country/norway. 23 Trudovoĭ Kodeks Rossiĭskoĭ Federatsii [TK RV] [Labor Code of the Russian Federation] 2020, No. 407-FZ. Many regions in Russia invoked mandatory teleworking for employees 65 and older or for those workers with specific health conditions. Ordinances, regulations and decrees differ by region, but all regions passed emergency laws throughout the pandemic. 24 See Colombia: According to the Media, the Constitutional Court Found Unconstitutional the Special Decree Creating the Solidarity Tax, L&E GLOBAL (Aug. 28, 2020), https://knowledge.leglobal.org/colombia. 4 Susan Friedman done”, China25 and India26 have not been proponents of remote work, historically neither work culture has embraced the virtual workplace. In the new “earn while you learn” [the technology from home] culture, multi-national employers continue to contend with a plethora of issues ranging from revised leave laws for sick time and family caretaking to reduced compensation/hours (short-time work), furloughs/temporary lay-offs and dismissals. In an effort to shield income, safeguard health and preserve , many countries expanded or implemented paid sick leave policies as reported by the of Economic Cooperation and Development with 38 member countries from the Americas, Europe and Asia-Pacific.27 Generally, state aid via government subsidies has been provided to support employers and employees worldwide within the sick leave context.28 Nations have also been compelled to address parental leave.29 Consider: Argentina’s Ministry of Labour Resolution No. 207/2020 in conjunction with Resolution No. 108/2020 by the Ministry of Education justifying parental leave with payments during the suspension of school; the Canada Emergency Response Benefit providing income support for employees away from work due to childcare duties; Poland and Portugal dispensing additional care allowances for caregivers of disabled children; entitlement to paid time off for parents in Norway, Romania, Australia and Switzerland; no statutory rights in Japan, but the government furnished financial benefits to employers who extended extra paid leave to parents caring for children.30 Formal parental leave laws were lacking in Brazil, Colombia, Hong Kong, Italy, and Singapore, among others.31 “I meant to do my work today”, [but I had to take care of the children too] is the chant of some employees. As a duet, remote work and leave laws have seemingly had a disparate impact on working women globally resulting in widening the gender equality gap. McKinsey Global Institute reports that the pandemic has made women’s livelihoods much more vulnerable than those of men.32 Statistically, McKinsey advises that although women comprise 39% of all global employment, they account for 54% of overall job loss.33 This may be attributable to the positions held by women in sectors disproportionately impacted by the pandemic; many believe that the responsibilities of caretaker while maintaining a full have laid the foundation for discrimination. Whether discrimination or other circumstances arising out of the coronavirus, short- time/part-time work, furloughs/temporary lay-offs, and employment dismissals all play a role in the changes to the global employment landscape. “Don’t Leave Me This Way” – Employment Termination Around the World Realizing that “you can’t always get what you want,” “doom and gloom” set in at the outset of the pandemic as employers strategized to maintain operations and . A guest appearance was made by short-time work schemes involving

25 See China: Shanghai Releases Guiding Opinions for Labour Disputes Influenced by the COVID-19 Crisis, L&E GLOBAL (May 25, 2020), https://knowledge.leglobal.org/corona/country/china/china-shanghai-releases-guiding- opinions-for-labour-disputes-influenced-by-the-covid-19-crisis/. 26 See India: Teleworking, L&E GLOBAL, https://knowledge.leglobal.org/back-to-work/country/india/teleworking-14/. 27 Paid Sick Leave to Protect Income, Health and Jobs Through the COVID-19 Crisis, OECD (July 2, 2020), https://www.oecd.org/coronavirus/policy-responses/paid-sick-leave-to-protect-income-health-and-jobs-through-the- covid-19-crisis-a9e1a154/. 28 See Press Release, John Sander, Chairman, L&E Global, COVID-19: Back to Work, https://knowledge.leglobal.org/back-to-work. 29 Id. 30 Id. 31 Id. 32 Seven Charts That Show COVID-19’s Impact on Women’s Employment, MCKINSEY & CO. (Mar. 8, 2021), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/seven-charts-that-show-covid-19s-impact-on- womens-employment. 33 Id. Employment Practices 5 reductions in work hours with government subsidizations for lost wages for a set time period.34 The purpose of such schemes is to avoid employment terminations for organizations experiencing temporary disruptions. These job retention plans exist in Belgium, Canada, Chile, Italy, Japan, Spain, Sweden and Turkey, among other countries.35 Notably, employers are not permitted to dismiss employees for economic reasons during the implementation of a short-time work scheme, but dismissals continued to occur giving rise to employment claims. Reductions in salary were also considered, but in most instances global employers are forbidden from unilaterally implementing a salary reduction as it needs to be negotiated between employer and employee. Where short-time work and salary reductions may fail and employers find themselves a “stone’s throw from hurtin”, they have opted for temporary lay-offs or furloughs to avoid massive reductions in force. Labour Codes and related regulations vary worldwide, but a number of nations, inclusive of the UK, France, Singapore, and the Czech Republic, require that compensation be paid during furlough/temporary lay-off.36 Taking it “a step too far” leads to redundancies, facility closures and dismissals. Although Australia, Colombia and Belgium apply typical rules of collective dismissal (i.e. mandatory notice, consultation, negotiation of severance) for redundancy and facility closures, France, Germany, Japan and The Netherlands require that organizations demonstrate reasonable grounds for employment termination.37 Countries generally did “come together” in agreeing that employment termination merely on the ground that an employee is confirmed, suspected or asymptomatic with COVID-19 is discriminatory. Conversely, employees who have knowledge that they are infected with the coronavirus, yet still attend work, may be fairly dismissed as in Eskort Limited v. Stuurman Mogotsi and others from South Africa’s Labour Court in Johannesburg.38 The termination “hard luck story” created much legal “fanfare”. Consider the Belgium Court of Cassation’s decision in a case brought by a dismissed female employee alleging indirect discrimination on the basis of sex with respect to the calculation of severance.39 The Court held that a difference in treatment between male and female employees was created when remuneration was calculated for reduced working hours for the female due to a parental leave credit.40 The Court further held that the lower court erred by deciding contrary to the Belgian Anti-Discrimination Act.41 Notwithstanding the temporary emergency bans on dismissal put in place by several countries including Italy42, Turkey43, Spain44 and Argentina45, terminated employees

34 See generally Job Retention Schemes During the COVID-19 Lockdown and Beyond, OECD (Oct. 12, 2020), https://www.oecd.org/coronavirus/policy-responses/job-retention-schemes-during-the-covid-lockdown-and-beyond- 0853ba1d/#section-d1e126; see also Michael Wolf, The Long and Short-time Work Amid COVID-19, DELOITTE (June 12, 2020), https://www2.deloitte.com/xe/en/insights/economy/short-time-work-amid-covid-19.html, for a discussion by global accounting/consulting firm Deloitte. 35 Id. 36 See Sander, supra note 28. 37 Id. 38 Eskort Limited v. Mogotsi 2021 42 ILJ 1 (LC) (S. Afr.), http://www.saflii.org.za/za/cases/ZALCJHB/2021/53.pdf. 39 Cass. [Court of Cassation], June 22, 2020, No. S.19.0031.N (Belg.). 40 Id. 41 Id.; See also Anti-Discrimination Law, art. 5 (Belgium, 2007); Gender Law, art. 4 (Belgium, 2007 as Amended), available at http://www.diversite.irisnet.be/IMG/pdf/Legislations_Loi10mai2207genre-2.pdf 42 Decreto legge 17 March 2020 n. 18/2020 (It.), https://www.confindustria.it/wcm/connect/e633da49-7ac9-427d-bad0- 23f9a78cd546/Decree- Law_18_17032020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-e633da49- 7ac9-427d-bad0-23f9a78cd546-n4IhvQj. 43 Labour Act No. 4857, 22 May 2003 (Turkey). 44 Royal Decree-Law 9/2020 art. II (R.D.L. 2020) (Spain) (banning dismissals based on economic, technological, organizational and productive grounds in an attempt to protect employment during the COVID-19 crisis). 45 Decree No. 329, Mar. 31, 2020, (Arg.) (temporarily prohibiting dismissals during the COVID-19 emergency where there is no good cause or due to lack or reduction of work and force majeure); Decree No. 487, May 18, 2020 (Arg.) 6 Susan Friedman sought “satisfaction” by litigating against their former employers. Employees were victorious in Espinoza, Jose Alfredo vs. TM S.A s/Autosatisfactivas where the Argentine Labour Court ordered reinstatement and back pay holding that the plaintiff’s dismissal was null, because it was without good cause and therefore violated the temporary ban on dismissals provided for by Argentinian Decree 329/2020.46 Dissimilar to Argentina, the Court of Rome in April 2021, reversed its own earlier decision by ruling that the ban on dismissals does not apply to executives nor managers.47 The Social Court 1 in Barcelona broke new ground with Judgment 283/2020 in which the Court declared that a decision for a dismissal, based on the employer’s economics and , was justified despite a ban on dismissal, provided that the company acts in good faith and their action is necessary to survive.48 Blazing a new trail in Spain, this decision highlights the Court’s recognition of both struggling employers and employees.49 “Flip the switch” to learn that termination is not always one-sided. Across the globe, employees crooned their refusal to go to work or return to work depending upon the stage of coronavirus in which they found themselves. As an example, in Accattatis v. Fortuna Group (London) Limited, 50 the Claimant repeatedly asked to work from home or be put on furlough, because he feared using public transportation and working in the office due to the coronavirus. The Respondent employer advised the Claimant that his position could not be performed remotely. 51 The Court dismissed Claimant’s unfair dismissal claim, because he failed to take the appropriate steps to protect himself from harm.52 A similar unfair dismissal case, Rodgers v. Leeds Laser Cutting Limited 53 involved a Claimant refusing to come to work after a colleague showed signs of COVID-19.54 The Claimant advised the Respondent that he would not return to work until lockdown dissipated, because he feared for the health of his child who had sickle cell anemia.55 The Claimant was dismissed.56 The Employment Tribunal ruled that the Claimant’s refusal to work by virtue of the pandemic was not reasonable, particularly here where the employer implemented satisfactory health and safety measures.57 Although there are slight deviations from countries globally, the overwhelming response is that refusal to go to work is tantamount to breach of the employment contract (e.g., India, Germany, Sweden, Czech Republic, Australia) and therefore serves as the basis for disciplinary action including dismissal.58 As a precursor to discipline or dismissal other nations (e.g., Brazil, France, Belgium, The Netherlands, and Poland) examine the reasonableness of an employee’s fear of going to work, encourage alternatives (remote working/paid leave), or provide assurances of compliance with workplace health and safety

(extending Decree No. 329 for another sixty days, i.e., until July 31, 2020); Decree No. 413, June 28, 2021 (Arg.) (extending the prohibition on dismissals, first implemented in Decree No. 329, through year-end 2021). 46 See generally Argentina: Decree 345/2021 Extends Ban on Dismissals and Furloughs, L&G GLOBAL (June 29, 2021), https://knowledge.leglobal.org/corona/country/argentina; Labour Court [LC], 28/4/2020 “Espinoza, José Alfredo c. TM S.A. s/ Autosatisfactivas” (Arg.). 47 See Italy: New Decree Approves Emergency Measures to Facilitate Economic Recovery, L&E GLOBAL (June 29, 2021), https://knowledge.leglobal.org/corona/country/italy. 48 See Spain: Alteration of Job Modality Ruled a Substantial Modification that Exceeds the Company’s Capacities, supra note 19. 49 Id. 50 Accattatis v. Fortuna Group (London) Ltd. [2021] Case No. 3307587 (Eng. & Wales), https://assets.publishing.service.gov.uk/media/60ab87ee8fa8f520bf855d57/Mr_F_Accattatis_-_v_- _Fortuna_Group__London__Ltd__-_3307587-2020.pdf; see also UK: COVID-19—Refusal to go to Work, L&E GLOBAL (June 29, 2021), https://leglobal.org/2021/06/29/uk-covid-19-refusal-to-go-to-work/. 51 Id. 52 Id. 53 Mr D Rodgers v Leeds Laser Cutting Ltd. [2021] Case No. 1803829 (Eng. & Wales), https://www.gov.uk/employment-tribunal-decisions/mr-d-rodgers-v-leeds-laser-cutting-ltd-1803829-slash-2020. 54 Id. 55 Id. 56 Id. 57 Id. 58 Sander, supra note 28. Employment Practices 7 guidelines.59 Irrespective of the chosen path, employers are cautioned that any measures taken cannot be discriminatory. The path to potential termination, however, was met with a degree of “salvation” via vaccination. “Hit Me With Your Best Shot” and “Start Me Up”: From Vaccine to Lifting Restrictions What appeared to be an expeditious advent of COVID-19 vaccines brought hope for recovery as well as a collection of novel employment issues. The overriding question was whether employers could order that employees receive the vaccine as a condition of employment. As anticipated, the response keeps changing even now as we approach the end of 2021. Today, in much of the European Union (E.U.), vaccines are not mandatory and public health officials via orders dictate vaccination requirements.60 Notably, Belgium highlights the need to balance between health and safety in the workplace versus discrimination resulting from unequal treatment.61 “Just like Belgium”, in Australia, employers cannot mandate vaccines as it is within the government’s discretion.62 Similar to many other countries, under certain circumstances Australian employers can require employees to be vaccinated provided that such direction is lawful and reasonable.63 Termination for failure to obtain a vaccine is heavily scrutinized.64 “Oceans away” in the U.K. although vaccinations are not yet mandatory, the government, as in other countries, is partial toward such a mandate for healthcare professionals.65 A Parliament Briefing Paper specifically notes the dangers of mandatory vaccinations in terms of discriminatory impact based on age, disability, pregnancy, race and religion.66 Consider that employees may have medical reasons for not being vaccinated or object to vaccination due to religious beliefs or general mistrust – all of which serve as the basis for discrimination. These issues did not stop Saudi Arabia from mandating that only individuals who have at least one vaccine may enter public and private establishments.67 Akin to Saudi Arabia, Russian authorities mandated vaccines for specific industry sectors in specific regions.68 While around the world the vaccine may have some employees humming “we’re not gonna take it”, employers are whispering “tell me” which raises privacy issues. Globally, embedded within many employment laws and labor codes are the traditional rights to privacy (ie. health conditions) belonging to employees. The collection of employee personal health information, such as vaccination, also triggers data privacy laws such as the E.U.’s General Data Protection Regulation (GDPR).69 The GDPR, and related privacy statutes, requires that employers explain: the necessity of information collected; it’s

59 Id.

60 Indian Government Allows COVID-19 Vaccinations at the Workplace, L&E GLOBAL (Apr. 20, 2021), https://knowledge.leglobal.org/corona/?s=vaccinations. 61 Belgium: How to Treat Vaccinated and Non-Vaccinated Employees, L&E GLOBAL (May 27, 2021), https://knowledge.leglobal.org/corona/country/belgium/belgium-how-to-treat-vaccinated-and-non-vaccinated- employees/. 62 COVID-19 Vaccinations: Workplace Rights and Obligations, FAIR WORK OMBUDSMAN (July 1, 2021), https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the- workplace/covid-19-vaccinations-workplace-rights-and-obligations. 63 Id. 64 Id. 65 See Ferguson, supra note 2. 66 Id. 67 Sander, supra note 28. 68 Russia: Mandatory Vaccination Against COVID-19 in Russia: The New Reality, L&E GLOBAL (June 29, 2021), https://leglobal.org/2021/06/29/russia-mandatory-vaccination-against-covid-19-in-russia-the-new-reality/. 69 Commission Regulation 2016/679, 2016 O.J. (L119/1) (EU), https://op.europa.eu/en/publication-detail/- /publication/3e485e15-11bd-11e6-ba9a-01aa75ed71a1. 8 Susan Friedman intended use; and the manner in which the information will be disclosed, stored, and destroyed.70 Violations of these requirements yield substantial fines, penalties and monetary damages.71 Additionally, although there are substantial privacy risks, the Vaccine Passport concept emerged.72 This digital or paper certificate would provide proof of vaccination, but the disclosure of personal health information and infringement on civil liberties may be obstacles to full scale acceptance. As vaccination rates rise and lockdown restrictions lift in certain places, of multi- national companies phase back into the workplace. This re-entry, which for some occurred one year ago and for others has not yet occurred, raises a multitude of issues (including the threat of another lockdown). Employers must consider: cleaning measures, personal protective equipment, social distancing, modification of workspace, ventilation, temperature taking, disclosure of those infected, COVID testing, COVID vaccines, hybrid work models, continuance of remote work, refusal to re-enter the workplace, travel restrictions, accommodations, and the beat goes on. “Time Waits for No One” – Global Employment Issues The Re-Emergence of Pre-Covid Trends Notwithstanding the deluge of coronavirus related employment claims which predominantly relate to dismissals/lay-offs, compensation, working conditions, and accommodations, the pre-pandemic trends continue. A recent poll of law firms comprising L&E Global, an alliance of employers’ counsel worldwide73 indicates that the five most prevalent employment law issues, COVID-19 aside, are: sexual harassment (#MeToo); unlawful discrimination based on sex, race, religion and age (often resulting in termination); pay parity; ; and privacy. Although tribunals the world over may be backlogged and courts have rendered opinions in 2021 from legal actions commenced in years prior, the themes of equality, liberty and social justice perpetuate themselves as headliners. Consider a #MeToo ruling from the Supreme Court of Norway holding that a female industrial mechanic was sexually harassed by two customers whose unwanted advances were in violation of section 8 of the Gender Equality Act of 2013 and section 11 of the Equality and Anti-Discrimination Act.74 The Court ordered the customers to pay damages and the employer (who did not appeal the Court of Appeals judgment) was liable for financial damages for failure to prevent sexual harassment in the workplace.75 Staying in Norway, in February 2021, the Equality Tribunal unanimously held that a female doctor who, for several years, received a substantially lower salary than her male counterparts was discriminated against on the basis of sex76 in violation of the Gender Equality and Anti-Discrimination Act.77 In awarding the highest amount of damages thus

70 Id. 71 Id. 72 See generally Maya Atrakchi et al., COVID-19 Vaccine Passport Programs: Privacy and Security Considerations, JDSUPRA (May 11, 2021), https://www.jdsupra.com/legalnews/covid-19-vaccine-passport-programs-8028338/; see also Privacy and COVID-19 Vaccine Passports, OFFICE OF THE PRIVACY COMMISSIONER OF CANADA (May 19, 2021), https://www.priv.gc.ca/en/opc-news/speeches/2021/s-d_20210519/. 73 L&E GLOBAL, https://leglobal.org. 74 Supreme Court Judgment 22 December 2020, HR-2020-2476-A, (sak nr. 20-027579SIV-HRET) og (sak nr. 20- 027583SIV-HRET), Civil Case, Appeal Against Judgment. 75 Id. 76 Equity Tribunal Statement 15 February 2021, Case 20/207, https://www.diskrimineringsnemnda.no/showcase/2020000207. 77 Gender Equality and Anti-Discrimination Act (GEADA), 16/1/2020, https://lovdata.no/dokument/NLE/lov/2017-06- 16-51. Employment Practices 9 far in a gender equality case, the Equality Tribunal solidified its position that equal pay for equal work is the guiding principle.78 Changing continents, in Parris v. Trustees of Edmund Rice Education Australia t/a St Kevin’s College79 the Fair Work Commission held the dismissal of a teacher to be lawful given his wholly inappropriate online conduct via social media and sexual harassment of a student whose complaints led to his termination.80 Notably, Australia has added an express prohibition against sexual harassment to the Sex Discrimination Act of 198481 and is expanding the Fair Work Act of 2009 to include anti-bullying.82 Paralleling Australia, the UK has experienced a significant increase in on-line harassment and workplace bullying particularly of black women and LGBTQ+ employees. The Equality Act of 201083 affords limited protection to those in listed protected classes (but no specific protection for bullying). As such, employees may look to other statutes relative to human rights and whistleblower activity.84 In this regard, the UK has increased protection for .85 Blowing the whistle on wrongful employment activity, particularly via complaints about harassment is not always met with protection from dismissal. The Belgian Court of Cassation, in two separate decisions involving employees filing formal complaints of harassment/sexually inappropriate behavior, acknowledged that although the law may protect employees from dismissal for submitting a complaint, no protection is afforded where the employer can prove that the decision to terminate employment was not a consequence of submitting a complaint.86 As news reports in 2021 scream “I can’t keep this from you”, the world sees: “Former South Korean Mayor Jailed for Sexual Harassment”87; “France: Female Sports Journalists Cite Sexism, Harassment”88; “Sri Lanka’s Belated #MeToo Movement Starts from its Newsroom”89; and “Windsor Heights Settles Wrongful Termination [Sexual Harassment] Suit with Former City Administrator Elizabeth Hansen”90. On the “heels of the wind” of #MeToo, the Black Lives Matter Movement ignited activism around the world with companion movements in the UK, Australia, France, The Netherlands, Germany, Poland, Colombia and Sweden, among others. Relatively contemporaneous to this movement focusing on systemic racism, the world recognized a rise in discrimination based on religious beliefs, disability and LGBTQ+ status.

78 Supreme Court Judgment 22 December 2020, HR-2020-2476-A, supra note 74; see also Asda Stores Ltd v. Brierley [2019] EWCA Civ 44, [2021] UKSC 10 (Eng.), https://www.supremecourt.uk/cases/docs/uksc-2019-0039- judgment.pdf (allowing an Equal Pay case brought in the UK by 35,000 supermarket employees to proceed using comparators working at a different establishment). 79 [2021] FWC 2341, Fair Work Commission, 28 April 2021. 80 Id. 81 Sex Discrimination Act 1984 (Austl.), https://www.legislation.gov.au/Details/C2004A02868. 82 Fair Work Act 2009 (Austl.), https://www.legislation.gov.au/Details/C2021C00189. 83 Equality Act 2010 c. 15 (Eng.), http://www.legislation.gov.uk/ukpga/2010/15/contents. 84 See generally Clyde & Co, L&E GLOBAL, https://leglobal.org/firms/clyde-co/. 85 Id. 86 Cass. [Court of Cassation], Jan. 20, 2020, No. S. 19.0019. F.; Cass. [Court of Cassation], June 15, 2020, No. S. 19.0014. N. 87 Former South Korean Mayor Jailed for Sexual Harassment, (June 29, 2021), https://timesofindia.indiatimes.com/world/rest-of-world/former-south-korean-mayor-jailed-for-sexual- harassment/articleshow/83945865.cms. 88 France: Female Sports Journalists Cite Sexism, Harassment”, (March 22, 2021), https://apnews.com/article/sexual- misconduct-journalists-discrimination-newspapers-social-media-258109287d7f24aa9efcff2bee98a298. 89 Sri Lanka’s Belated #MeToo Movement Starts from its Newsrooms, (June 22, 2021), https://www.msn.com/en- xl/new/other/sri-lanka-s-belated-metoo-movement-starts-from-its-newsrooms/ar-AALjfWZ. 90 LeBlanc, S.K., July 2, 2021, “Windsor Heights Settles Wrongful Termination Suit with Former City Administrator Elizabeth Hansen,” Des Moines Register, https://www.desmoinesregister.com/story/news/local/windsor- heights/2021/07/02/windsor-heights-settles-2019-wrongful-termination-lawsuit-elizabeth-hansen-former-city- administrator/7844052002/. 10 Susan Friedman

In Allay (UK) Limited v. Gehlen,91 the Employment Appeal Tribunal, in a racial discrimination case upheld the lower court’s decision that the employer’s “reasonable steps defense” (by providing equality, diversity, anti-bullying, and harassment training) was stale and needed to be refreshed.92 On the same continent, the #HandsOffMyHijab Movement (opposing the French Senate’s attempt to ban the wearing of headscarves/hijabs in public for Muslim girls under 18) reared its premise at the Court of Cassation. A former saleswoman in a fashion chain store commenced an action for wrongful dismissal due to discrimination based on religion when she was dismissed for refusal to remove her headscarf (Islamic veil).93 The Court of Cassation reversed the labour tribunal citing that the employer was liable for discrimination, because it cannot ban the wearing of a headscarf for religious reasons in favor of commercial reasons regardless of internal regulations.94 Next door in Spain, the Constitutional Court ordered the Administration of Justice to reinstate, with disability accommodations, a court secretary who was suspended from work for failure to do his work adequately.95 The employee disclosed that he had Asperger’s Syndrome and sought reasonable adjustments to perform his job despite his disability.96 The Court underscored that the Public Administration was obligated to seriously consider requests for reasonable accommodations made by disabled employees.97 The “fight” for equal rights in the workplace continues with the LGBTQ+ community. Although many countries seek to protect this community via inclusion in anti- discrimination laws, there are several others such as Hungary and Poland where discrimination appears rampant. Consider that the Hungarian legislature has a law banning any content in schools that promotes homosexuality or that a multitude of regions in Poland are known as LGBT-free zones. These employees are often marginalized resulting in unequal pay and opportunities. No matter the hashtag # for the cause, law firms in the L&E Global network advise that plaintiffs’ attorneys remain active in bringing cases of sexual harassment (particularly against senior business leaders and high profile individuals), workplace bullying (including remote/teleworking), privacy, and a band of others to combat discrimination in the workplace. “Back in the USA” On the grand stage Americans sang “it’s all too much” and “it ain’t gonna be easy” with respect to all of the new and challenging issues that emerged from COVID-19. Mutations in the coronavirus with Alpha, Delta, Lambda and the new Mu variant run contemporaneous to the emergency measures implemented and the metamorphosis of the American workplace. Although many may believe that the pandemic is one moment in the “circle of life”, the legislation and case law become indelible parts of American history. By mid-year 2021, employment lawsuits, related to the pandemic, filed in the United States, totaled 2,575 since its onset in March 2020.98 Out of the total number of complaints filed, 2,062 alleged wrongful termination which resulted from claims pertaining to disability, leave and accommodations (941), retaliation/whistleblower (580), and

91 Allay (UK) Ltd. v. Mr S Gehlen [2021] UKEAT 0031/20, [2021] WLR(D) 132 (Eng.), http://www.bailii.org/uk/cases/UKEAT/2021/0031_20_0402.html. 92 Id. 93 Cour de cassation [Cass.] Apr. 14, 2021 No. 479 (Fr.), https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/479_14_46873.html. 94 Id. 95 Constitutional Court, Mar. 15, 2021 (BOE-A-2021-6597) (Spain). 96 Id. 97 Id. 98 COVID-19 LitWatch, JACKSON LEWIS, https://www.jacksonlewis.com/covid19-litwatch. Employment Practices 11 discrimination/harassment (428).99 Although employee complaints about workplace safety and conditions gave rise to 43 claims of wrongful termination, they comprised 160 complaints cumulatively.100 Similarly, there were 36 wage and hour claims alleging wrongful termination, yet they represented 151 complaints out of the overall number of complaints filed.101 A further distinction is made between class actions and single plaintiff actions noting 101 class action complaints and 2,474 single plaintiff actions filed.102 Employment law class action practitioners acknowledged that pandemic related class actions represented a fraction of the total filed.103 Notably, although a small percentage of the cumulative total, 78% of complaints alleging violations of the WARN Act,104 which governs plant closings and mass layoffs, were class actions.105 In 2021 the focus shifts to return to work, remote working, and diversity, equity and inclusion initiatives as a prophylactic measure to minimize the risks of class action discrimination lawsuits.106 In a cappella, employees nationwide flocked to the Equal Employment Opportunity Commission (EEOC) to file Charges of Discrimination against their employers. In 2020, 67,448 Charges of Discrimination were filed with the EEOC.107 In analyzing the Charges of Discrimination filed, retaliation (under all statutes) led the way comprising 55.8% of all Charges filed, spiraling downward with disability (36.1%), race (32.7%), age (21%), national origin (9.5%), color (5.3%) and religion (3.6%).108 A significant number of the Charges of Discrimination were filed by employees during the height of the pandemic and laid the foundation for the litigation to follow. “Saturday Night’s Alright for Fighting” – So Are Monday, Tuesday, Wednesday and Thursday – U.S. Employees Sing “Wanna Be Startin’ Somethin’” Unprecedented, the immediate impact of COVID-19 was the health and safety of employees. As an emergency temporary measure, the Families First Coronavirus Response Act (FFCRA)109 became effective on April 1, 2020. The FFCRA required that employers with fewer than 500 employees provide their employees with paid sick leave and expanded family and medical leave for COVID-19 related reasons.110 Further, certain states (e.g., California, New York) passed their own COVID-19 sick leave laws. Many states also

99 Id. 100 Id. 101 Id. 102 Id. 103 COVID-19 LitWatch, supra note 94; Mia Farber et al., Class Action Trends Report Spring 2021, JACKSON LEWIS (May 12, 2021), https://www.jacksonlewis.com/publication/class-action-trends-report-spring-2021. 104 Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C. § 2100 et. seq. (1988). Employers with 100 or more employees must provide at least sixty calendar days advance written notice of a plant closing or mass layoff affecting fifty or more employees at a single worksite. WARN also requires notice to employees of their status when a furlough is longer than six months. WARN Act exceptions include: unforeseeable business circumstances, faltering companies, and natural disasters. See also Turner v. Rosen Hotels and Resorts, Inc., No. 6:21-cv00161 (M.D. Fla. Jan. 22, 2021); see also Plant Closings and Layoffs, U.S. DEP’T OF LAB., https://www.dol.gov/general/topic/termination/plantclosings; see also Van Balderen v. Four Seasons Miami Emp. Inc., No. 1:21-cv-21842 (S.D. Fla., May 17, 2021). 105 COVID-19 LitWatch, supra note 94; 29 U.S.C. § 2100 et. seq. (1988). 106 COVID-19 LitWatch, supra note 94. 107 Charge Statistics (Charges Filed with EEOC) FY 1997 Through FY 2020, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020. The 2021 Charge Statistics are released post-September 30, 2021 which is the close of the EEOC’s fiscal year. 108 Id. 109 Families First Coronavirus Response Act (FFCRA), Pub. L. 116-127 (2020). 110 Id. The FFCRA included the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The FFCRA expired on December 31, 2020, but the American Rescue Plan Act of 2021 extended the FFCRA with amendments. American Rescue Plan Act of 2021, Pub. L. 117-2 (2021); see also U.S. DEP’T OF LAB., www.dol.gov. 12 Susan Friedman passed bans forbidding employers from terminating or otherwise interfering with employee rights to take leave for COVID-19 reasons. The lawsuits stemming from the pandemic, beginning as early as April 2020 to present day, allege violations of the FFCRA against an employer who has denied emergency leave or requests for , or has terminated employees who could not work remotely or had childcare responsibilities.111 Employees who sought to work remotely, either due to their own disability or that of a child or loved one, and were denied an accommodation, set forth claims pursuant to the leave laws and the Americans with Disabilities Act (ADA).112 Overall, caregiver discrimination grew as studies indicated that working women were terminated from employment, exiting the job market or seeking less demanding roles in droves.113 A symphony of employees who continued to go to work (or returned/returning to work) outside the home, mostly in patient/customer facing positions or manufacturing/distribution, brought claims alleging that their employers failed to adhere to COVID-19 safety protocols (i.e. face coverings, social distancing, ventilation, sanitizing premises). The Department of Labor’s Occupational Health and Safety Administration (OSHA) reported that it received 5,369 whistleblower complaints through May 23, 2021, of which an estimated 1,150 citations were issued alleging violations of workplace safety protocols between July 1, 2020 and April 12, 2021.114 Although whistleblower protection forbids employers from retaliating against employees who make complaints, employees have brought and continue to bring claims for retaliatory treatment. Consider Smalls v. Amazon, Inc., 115 brought on behalf of African American and Latino employees of Amazon. Former employee, Smalls, claimed that minority workers were discriminated against by being forced to work in unacceptable conditions during the pandemic; Smalls consistently voiced his concerns of COVID-19 safety measures due to Amazon’s lack of preparedness.116 Following Smalls, New York Attorney General, Letitia James, on behalf of the State of New York, commenced an action against Amazon for its failure to provide adequate COVID-19 hazard free work conditions, and for retaliating against multiple employees for their complaints.117 Contrary to the current environment, many employers are now rebutting OSHA citations using the “good faith” exception to OSHA standards; they argue that OSHA’s guidance is unclear, conflicting, and frequently changes.118 In response to experiencing the economic crush of the coronavirus, many U.S. employers, with the “weight of the world” on their shoulders resorted to furloughs and layoffs.119 Furloughs in the U.S. are unpaid leaves of absence typically without compensation, but

111 See Leppo v. Environmental Design Group, LLC, No. 5:2020-cv-02374 (N.D. Ohio, Oct. 19, 2020); Dusenberry v. Liberty Risk Consulting, LLC, No. 2:21-cv-00162 (W.D. Pa., Feb. 2, 2021). 112 Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (2018). 113 David Yaffe-Bellany, Employers Facing Wave of Lawsuits by Parents Fired During Pandemic, INS. J. (Nov. 12, 2020), https://www.insurancejournal.com/news/national/2020/11/12/590285.htm; see also McKinsey & Company, Women in the Workplace 2020, https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2020.pdf; Newsome v. Axos Bank, No. 3:20-cv-1424-JM-JLB (S.D. Cal., July 23, 2020). 114 Freedom of Information Act (FOIA), U.S. DEP’T OF LAB., www.osha.gov/foia; see also Courtney M. Malveaux, OSHA’s Updated Guidance for COVID-19 in , JACKSON LEWIS (June 29, 2021), https://www.jacksonlewis.com/publication/osha-s-updated-guidance-covid-19-workplaces. 115 No. 1:20-cv-05492 (E.D.N.Y., Nov. 12, 2020). 116 Id. 117 The People of the State of New York by Letitia James v. Amazon.com Inc., No.45362/2021 (Sup. Ct. N.Y., Feb. 16, 2021). 118 USA: Employers are Contesting OSHA’s COVID-19 Citations, L&E GLOBAL (May 27, 2021), https://knowledge.leglobal.org/usa-employers-are-contesting-oshas-covid-19-citations/. 119 Monica H. Khetarpal et al., What Employers Should Know About Furloughs, Layoffs, and WARN Act Obligations in Light of COVID-19, JACKSON LEWIS (Apr. 29, 2020), https://www.jacksonlewis.com/publication/what-employers- should-know-about-furloughs-layoffs-and-warn-act-obligations-light-covid-19. Employment Practices 13 employee health and welfare benefits may be kept intact. A furlough contemplates a return to work versus a layoff which is termination of the employment relationship. Although frequently unintended, both furloughs and layoffs have had a disparate impact on many classes of employees protected by Title VII of the Civil Rights Act of 1964.120 The brunt of reductions in force often fell upon older or disabled workers, workers of a certain race or ethnic background, or women. Employers recalling employees from furlough were cautioned to use objective performance criteria so as not to run afoul of federal anti-discrimination laws. The plaintiffs’ bar has been quick to allege, particularly in the wrongful termination context, that employers use COVID-19 as a pretext for terminating pregnant, disabled or older workers. Consider Kanyuk v. Shearman & Sterling, where a former facilities manager was terminated as part of a layoff, with the employer accusing him of accepting “kickbacks”; the plaintiff contends that the true reason for his termination was his age, 62.121 Although the intent may be to protect the high risk employees from COVID-19, any adverse employment action appears to be viewed as discriminatory.

“Red, White & Blue” Pre-Covid Trends “Stayin’ Alive” The horns sounded as proponents of #MeToo, Black Lives Matter, transgender/LGBTQ+ rights, religious freedom, privacy rights, and other roadies advanced their initiatives. Perhaps most pronounced, the U.S. Supreme Court amplified the volume for LGBTQ+ rights in its June 15, 2020 landmark decision in Bostock v. Clayton County, Georgia.122 The Court, in defining Title VII which makes it “unlawful . . . for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s race, color, sex, or national origin,” 42 U.S.C. §2000e- 2(a)(1), held that “sex” includes sexual orientation and gender identity.123 The LGBTQ+ victory in Bostock also supports bringing claims pursuant to state anti-discrimination laws (previously silent as to the definition of “sex”). The Court allowed the “hand of fate” to step in by those who believed that they had “faith in something bigger” in Fulton, et al. v. City of Philadelphia124, decided on June 27, 2021. Here, the Court held that the City of Philadelphia was in violation of the Free Exercise Clause of the First Amendment by refusing to contract with Catholic Social Services (CSS) to provide foster care services unless CSS agreed to certify same-sex couples as foster parents.125 Many view this decision as narrow in that it creates no constitutional right to discriminate. Yet, others may see wider implications deepening the clash between religious beliefs and anti-discrimination laws. This balance between religious liberties and LGBTQ+ rights will likely continue through 2021 into 2022. Notwithstanding the struggle between the First Amendment and Title VII, employers are guided by the EEOC not to engage in any activity that could constitute sex discrimination based on sexual orientation or gender identity.126

120 Title VII of The Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. 121 Kanyuk v. Shearman & Sterling LLP, No. 1:20-cv-03567 (S.D.N.Y., May 7, 2020). 122 140 S. Ct. 1731, 207 L. Ed. 2d 218, 2020 WL 3146686, 2020 U.S. LEXIS 3252 (2020). 123 Id. 124 141 S. Ct. 1869, U.S. LEXIS 3121, WL 2459253 (2021); see also Our Lady of Guadalupe School v. Morrissey- Berru, 140 S. Ct. 2049 (2020). Decided shortly after Bostock, the U.S. Supreme Court recognized a “ministerial exception” to the First Amendment Religion Clauses and would not conduct a review of the discrimination claims brought by two religious schoolteachers. 125 Id. 126 Press Release, U.S. Equal Emp. Opportunity Comm’n, EEOC Announces New Resources About Sexual Orientation and Gender Identity Workplace Rights (June 15, 2021), https://www.eeoc.gov/newsroom/eeoc-announces-new- resources-about-sexual-orientation-and-gender-identity-workplace-rights. 14 Susan Friedman

Taking a “detour” from religious liberties and LGBTQ+, employees were not feeling “free and easy” upon learning that their personally identifiable information was going to the highest bidders on the dark web. COVID-19 health information aside, the pre-pandemic environment was fraught with data security breaches often exposing employers to claims of violation of employee privacy rights as well as negligence in maintaining cybersecurity. “Sparks will fly” and may give rise to more employee class actions as the continuous threat of identity theft looms large for employees globally.127 Privacy rights have also been jeopardized with the advent of biometrics which uses an employee’s personal physical (palm scan, fingerprints, face, retina scan) and behavioral (voice, gestures) traits for identification purposes.128 This “contact-less” form of identification was the genesis for the Illinois Biometric Information Privacy Act (BIPA) which regulates collection, disclosure, retention and disposal of biometric information.129 The barrage of lawsuits, predominantly class actions, started in 2015 and picked up in intensity over time; by year end 2020 more than 700 class actions alleging violations of BIPA were filed in state and federal courts.130 BIPA creates a private right of action with per infraction financial penalties ($1,000 per negligent violation and $5,000 for each intentional violation).131 BIPA’s “out of control” penalties are potentially due to the fate of biometric data when it is compromised – the information is never completely secure to be used again as a method of authentication.132 Other states and cities (Texas, Washington, New York, Oregon, Maryland) are slowly putting Biometric Privacy Laws in place133 or mimicking the California Consumer Privacy Act134 (Virginia, Nebraska, Florida) which thus far has two provisions protecting employee personal information (notice and collection)135; the exemption of employee personal information within the context of employment is extended by AB 1281 to January 1, 2022.136 As the explosion of class actions relative to privacy rights permeates throughout the U.S., so too have the timeless class actions relative to wage and hour laws/Fair Labor Standards Act and misclassification of employees.137

127 See generally https://www.lexislegalnews.com/mealeys-data-privacy and Privacy and Cybersecurity, 2020 Year-in- Review and 2021 Outlook: Case Law, MULLEN COUGHLIN, June 25, 2021, available at: https://www.mullen.law/privacy-and-cybersecurity-2020-year-in-review-and-2021-outlook-case-law/. Data Security & Privacy Breaches are often eligible for insurance coverage from Cyber Liability Insurance Policies; notification to employees and credit monitoring for identity theft are included within the scope of coverage. 128 See generally Illinois Biometric Information Privacy Act FAQs, JACKSON LEWIS, https://www.jacksonlewis.com/sites/default/files/docs/IllinoisBiometricsFAQs2017.pdf. 129 Biometric Information Privacy Act, 740 ILCS 14 et. seq. (2008). 130 2021: The Year Ahead for Employers, JACKSON LEWIS (Jan. 12, 2021), https://www.jacksonlewis.com/publication/2021-year-ahead-employers. 131 Id.; Illinois Biometric Information Privacy Act FAQs, supra note 133; 740 ILCS 14 et. seq. (2008). 132 State Biometric Laws are Trending and Class Actions Could be on the Rise, EPIQ (Mar. 24, 2021), https://www.epiqglobal.com/en-us/thinking/blog/state-biometric-laws-are-trending-and-class-action. 133 Id. 134 California Consumer Privacy Act (CCPA), Sec. 3, Title 1.81.5 (added to Part 4 of Division 3 of the California Civil Code), §§ 1798.185(a)(1)-(2), (4), (7), 1798.140(c) (2018). 135 Id. 136 See generally State and Local Updates, SHRM, https://www.shrm.org/resourcesandtools/legal-and- compliance/state-and-local-updates/pages/default.aspx. 137 Mia Farber et al., Class Action Trends Report Spring 2021, JACKSON LEWIS (May 12, 2021), https://www.jacksonlewis.com/publication/class-action-trends-report-spring-2021; 2021: The Year Ahead for Employers, supra note 135; Justin R. Barnes & Jeffery W. Brecher, U.S. Department of Labor Withdraws FLSA Independent Contractor Final Rule, JACKSON LEWIS (May 6, 2021), https://www.jacksonlewis.com/publication/us- department-labor-withdraws-flsa-independent-contractor-final-rule. Employment Practices 15

There is no misclassifying, however, when it comes to race as the supporters of the Black Lives Matter Movement138 belt out “I’m still standing”. Employee activism over racial equity has reached new heights as it carried on throughout the pandemic to present day.139 Consider Booker v. Morgan Stanley LLC, et al.140, brought individually and on behalf of black female employees, Booker, the former Global Head of Diversity and a Managing Director, claimed rampant systemic racial discrimination at Morgan Stanley.141 She alleged discrimination in hiring and retention of black employees as well as lack of advancement opportunities.142 Booker further alleged that senior leadership paid “lip service” to black employees and threw money at the diversity problem.143 The under-representation and discrimination against black employees does not end on Wall Street as two black female executives from McDonald’s commenced an action (the first of many) against the fast food giant for being subjected to a continuing pattern and practice of race discrimination.144 Similar allegations were made against Marriott Hotels, by a former employee who was terminated for complaining about systemic racism against African American employees by colleagues and supervisors.145 Replaying the same song, black workers at Facebook filed a class Charge of Discrimination with the EEOC alleging racial discrimination and hostility with respect to evaluations, promotions and pay; they claim that Caucasian and Asian-American employees seek a “culture fit”.146 The irony is that during the pandemic Asian-Americans have been the object of many hate crimes as well as targets for harassment and discrimination due to their perceived connection to the coronavirus. “Don’t let it shock you”, but the same government agency conducting the Facebook investigation, the EEOC, hit a flat key when it was accused, by its employees, of a pattern and practice of racial discrimination.147 Sharing the spotlight, in search of “R-E-S-P-E-C-T” are the women who spoke up and out, against sexual harassment and discrimination, in furtherance of #MeToo. Similar to the uptick in allegations of race harassment, claims of sexual harassment across all industries and localities have multiplied exponentially. A view into the EEOC Newsroom reveals: “EEOC Sues Long John Silver’s for Sexual Harassment and Retaliation,” “Sonic Drive-In Sued by EEOC for Sexual Harassment,” and “Walmart to Pay $410,000 to Settle EEOC Sexual Harassment Lawsuit,” among many others.148 Further, and although a savior during lockdown, the weaknesses of Amazon were showcased in Newman v. Amazon.Com, Inc., et al.149 in which a Senior Manager alleged sexual harassment, assault and discrimination.150 Web-surfing to Google, its parent, Alphabet Inc., as a result of consolidated shareholder derivative litigation, alleging mishandling of sexual harassment claims against senior executives, agreed to establish a

138 Started in 2013 and gained significant international recognition with the killing of George Floyd in May 2020 and racially charged tragic events that followed. 139 See generally Newsroom, U.S. EQUAL EMPLOY. OPPORTUNITY COMM’N, www.eeoc.gov/newsroom. 140 Booker v. Morgan Stanley & Co., (E.D.N.Y. 2020) (No. 1:20-cv-02662). 141 Id. 142 Id. 143 Id. 144 Guster-Hines v. McDonald’s USA, L.L.C., No. 1:20-cv-00117 (N.D. Ill., 2020); see also Byrd v. McDonald’s USA, L.L.C., No. 1:20-cv-06447 (N.D. Ill., 2020). 145 Seales v. Marriott Hotel Services, Inc., No. 1:20-cv-00314 (D. R.I. 2020). 146 Veneszee v. Facebook, Inc., EEOC Charge No. 570-2020-02186 (July 2, 2020). 147 “Within Our Walls.” Employees at Federal Civil Rights Watchdog Describe Their Own Workplace Discrimination, Retaliation in Texas, USA TODAY (Apr. 28, 2021), https://www.usatoday.com/restricted/?return=https%3A%2F%2Fwww.usatoday.com%2Fin- depth%2Fnews%2Finvestigations%2F2021%2F04%2F28%2Fworkers-claim-discrimination-at-eeoc-civil- rights%2F7288563002%2F. 148 Newsroom, supra note 139. 149 No. 1:21-cv-00531 (D.D.C., Mar. 1, 2021). 150 Id. 16 Susan Friedman fund of $310 million (as part of a settlement) devoted to new diversity, equity and inclusion measures.151 Keeping based, teleworking was not “off the hook” with respect to claims of discrimination and sexual harassment. The heightened risk of sexual harassment may be attributable to relaxed dress codes, virtual meetings in private spaces (i.e., bedrooms), and the perception that workplace policies do not apply outside the four walls of an office building. Claims of indecent exposure and propositions for sexual favors are on the upswing. Employers are cautioned to remind employees that anti- discrimination/harassment rules and complaint procedures still apply in the remote work setting. Whether sexual harassment, racial discrimination, or the avalanche of other employment- based claims for discrimination/retaliation, employers are entering a new realm of Diversity, Equity, and Inclusion (DEI). This novel DEI universe requires commitment from the top-down, candid and accurate assessment of discrimination within an organization, establishment of clear organizational policies, training, and setting measurable goals that can be monitored for achievement. “Living In America” – “Imagine” “Changes” “Say What You Mean and Put a Backbeat to It”152 The orchestration for the future in the U.S. for many organizations entails return to work to the extent that this process has not already occurred or is in the midst of implementation. Getting employees physically back to the workplace opens a pandora’s box of employment issues including, but not in any way limited to: how and when a business reopens, selection of employees to recall, maintaining a remote workforce, workplace safety, vaccinations, refusal to return to work, privacy rights, and avoidance of increasing exposure to claims. The reopening of offices consists of multiple steps: develop a plan and taskforce for reopening inclusive of procurement of supplies/workspace modifications; identify employees chosen to return to the office using objective criteria; determine which employees can continue to work remotely; notify employees of information relevant to them; implement policies that adhere to government guidelines; and prepare responses to anticipated concerns of employees.153 Confronted with pushback from the workforce and with remote work now deemed the new signing bonus, many employers, using some “imagination”, consider alternative return to work models.154 Whether it’s rotating staff, staggered schedules, phased-in approach, voluntary/flexible plan, agile work environment, or some permutation, a hybrid workplace model is contemplated by a vast number of employers.155 Scheduling aside, in the “what doesn’t kill you makes you stronger” category are the COVID-19 vaccines. The vaccination mandates by employers were poorly received, led to litigation and legislation.156 The National Academy for State Health Policy advised that at

151 See generally Kevin LaCroix, Alphabet Established $310 Million Fund in Google Sexual Misconduct Lawsuit Settlement, THE D&O DIARY (Sept. 27, 2020), https://www.dandodiary.com/2020/09/articles/shareholders- derivative-litigation/alphabet-agrees-to-310-million-fund-in-google-sexual-misconduct-lawsuit-settlement/. 152 Watch David Bowie’s Only Performance of John Lennon’s “Imagine,” DIG! (Oct. 9, 2020), https://www.thisisdig.com/watch-david-bowie-perform-john-lennon-imagine/ (Conversation between John Lennon and David Bowie – the response to Bowie’s question to Lennon “[H]ow do you write your songs?”). 153 Reimagine the Workplace, JACKSON LEWIS, https://www.jacksonlewis.com/practice/reimagine-the-workplace. 154 Tasos C. Paindiris & Patricia Anderson Pryor, How Do You Define Workplace? Survey Report, JACKSON LEWIS (June 2, 2021), https://www.jacksonlewis.com/publication/how-do-you-define-workplace-survey-report. 155 Id. 156 See, e.g., Neve v. Birkhead, No. 1:21-cv-00308 (M.D.N.C., Apr. 16, 2021) (Neve discontinued this action as of July 1, 2021); LeGaretta, v. Macias, No. 2:21-cv-00179-MV-GBW (D.N.M., Feb. 28, 2021); California Educators for Medical Freedom, v. L.A Unified Sch. Dist., No. 21-cv-02388 (C.D. Cal. Mar. 17, 2021); Bridges v. Houston Methodist Hosp., No. 4:21-cv-01774 (S.D. Tex., June 1, 2021), Order on Dismissal No. H-21-1774, June 12, 2021; Employment Practices 17 least 85 legislative bills have been introduced to limit the ability of employers from requiring vaccinations as a condition of employment.157 As employers exhibited stage fright realizing that re-opening is not a rehearsal, the EEOC issued Guidance on May 28, 2021.158 “The federal EEO [Equal Employment Opportunity] laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodations of Title VII and the ADA . . .”.159 Employers requiring a vaccine must be able to demonstrate that it is “job related and consistent with business necessity.”160 Compliance, however, with a mandatory vaccine policy is not required of employees who cannot receive the vaccine due to a disability (unless the employee poses a “direct threat” to the workforce according to the Americans with Disabilities Act (ADA), in which case, unless the “direct threat” can be eliminated or reduced with a reasonable accommodation the employee can be excluded from the workplace) or a sincerely held religious belief, practice or observance (the employer must provide a reasonable accommodation unless it poses an undue hardship).161 The EEOC has also indicated that it is generally permissible for employers to inquire about vaccination status (a simple “yes” or “no” response must suffice) or vaccination proof via a card.162 Such health information must be treated as confidential medical information and kept separate from a personnel file to be in accordance with the Americans with Disabilities Act provision for medical records.163 Note that the Health Insurance Portability and Accountability Act (HIPAA)164 protects disclosure of identifiable immunization data, but it includes exceptions to ensure public health and safety.165 Notwithstanding the ability to require vaccinations, many employers, in accordance with EEOC Guidance have opted to encourage vaccinations via incentives (i.e., prizes or money).166 At some point, employees who refuse to receive the vaccine may need to seek alternative employment. Employers add this “one more shot” to the continuously expanding list of employment litigation risks for 2021 and beyond, which already includes more COVID-19 litigation, an increase in class action activity, and the heightened focus on all protected classes pursuant to Title VII (religious liberty, age, disability, #MeToo, Black Lives Matter/social justice). Compounding the current climate is the plaintiffs’ employment bar who are following the “money” and driving trends as settlement values of employment claims meteorically rise. Plaintiffs’ attorneys have also re-introduced the theories of reverse discrimination (experienced by Caucasians through organization diversity efforts) and age discrimination claimed by millennials and Generation Z (accused of lacking experience and therefore denied job opportunities and promotions).167 Add in the Biden Administration initiatives, a conservative U.S. Supreme Court, OSHA and Center for Disease Control (CDC) guidance, modifications to federal, state and local laws, and an EEOC eager to implement

H.R. 702, 67th Leg., (Mont. 2021) (codified as part of Montana’s Human Rights Act) (Enacted May 17, 2021; Effective July 1, 2021) (prohibiting discrimination based on a person’s vaccination status). 157 State Lawmakers Submit Bills to Ban COVID-19 Vaccine Mandates and Passports, NASHP (July 7, 2021), https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/. 158 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada- rehabilitation-act-and-other-eeo-laws. 159 Id. at K. Vaccinations. 160 Id. 161 Id. 162 Id. 163 Id. 164 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1938 (1996). 165 Id. 166 What You Should Know About COVID-19, supra note 158. 167 See, e.g., CASTRONOVO & MCKINNEY EMPLOYMENT ATTORNEYS, https://nyplaintiff.com/new-york-discrimination- lawyers/reverse-discrimination/. 18 Susan Friedman its Strategic Enforcement Plan, and the world understands America’s skyrocketing demand for employment law advice. A fair portion of legal guidance will need to be provided by in-house counsel who in several respects are thrust into a new role. They must be prepared to provide pandemic guidance as well as advice in the “aftermath”. Many also envision that corporate counsel will play an integral part in leading the Diversity, Equity, and Inclusion dialogue which is a formidable and challenging addition to their role as they protect their employers from the rapidly increasing and changing employment practice exposures. Forget “Insurance Man Blues” – Employment Practices Liability Insurance to the “Emotional Rescue” to Protect the Organization and Personnel Global organizations of all sizes and industry sectors are increasingly concerned with the protections afforded to them against the surge of employment claims both pandemic and non-pandemic related. Robust compliance programs, due diligence, consultations with labor and employment counsel, and guidance from regulators cumulatively will assist in- house counsel in their efforts to minimize legal exposure. In-house attorneys should also seek to review their Employment Practices Liability insurance policies. These policies are specifically designed to provide coverage for claims alleging discrimination, sexual harassment, workplace bullying, wrongful termination, retaliation, failure to employ, promote and/or provide equal employment opportunities, and overall violations of civil rights within the employment context. These insurance policies also provide a variety of services including loss prevention, online classes, training tools, mitigation resources and complimentary employment guidance via telephone hotline services. It is vital that multi-national employers have significant resources at their disposal to keep apprised of existing and emerging labor and employment law trends. In harmony, Employment Practices Liability Insurance coupled with the services provided assures “a little peace” of mind for in-house counsel. Encore: The End is Just a New Beginning Today’s global employment landscape is the product of an unprecedented pandemic coupled with an extraordinarily charged employee base advancing social justice. The variety of venues, aggressively evolving legal and regulatory frameworks, and differentiated cultures yield a highly complex backdrop in which in-house counsel must operate. In-house counsel who avail themselves of the significant resources at their disposal increase the likelihood of successfully navigating the perilous employment environment. Although many yearn for normalcy from prior days, you may recall fondly, while in lockdown, listening to Elton John, The Who, The Rolling Stones, Jazz, and Disco, and realized that music soothes the soul. Today, perhaps Elton John put it best “I Think It’s Going to Be a Long Long Time”, but “The One” thing for certain, is that the music never stops even as we “Turn the Beat Around”. *** Susan F. Friedman is an insurance coverage attorney serving as Area Vice President for the Northeast Management Liability Practice of Arthur J. Gallagher & Co. Throughout her career she has handled thousands of employment practices claims in addition to claims involving all other management liability insurance products (including cyber liability). She has been a Contributing Writer to the International In-House Counsel Journal (and served on the Editorial Board of the Insurance Section), The New York Law Journal, National Law Journal, Law360, and related publications. She has been quoted in Forbes, Law360, Business Insurance, among others. She has held claims counsel/advocacy, underwriting counsel and litigation positions. Susan is a graduate of Cornell University and New York Law School. She is admitted to practice law in New York. Employment Practices 19

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