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Off-Duty Conduct: COVID-19 and Social Media Ranting—What’s an Employer to Do?

Many employers who recently reopened are now facing a new challenge—employee off-duty conduct. At stake are both workplace and customer safety as well as the company’s reputation. A recent webinar featuring McDermott’s Michael Sheehan, Ron Holland, Abigail Kagan and Brian Mead covers various scenarios employers are likely to face and provides practical strategies to navigate and mitigate potential risk. Access key takeaways.

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How to Build COVID-19 Employment Litigation Defenses Now

The employment and business decisions made by employers under the specter of the unprecedented COVID-19 pandemic are now being tested by plaintiffs' lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally. This article outlines the types of claim that are emerging and are expected to increase as a result of COVID-19. Access the article.

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Use of the Coronavirus Alert App in the Employment Relationship in Germany

In Germany, a Corona Alert App has been deployed. If a user tests positive for COVID-19, it’s entirely up to the user to share the test result via the app. Employees are at liberty to use the app voluntarily on their personal devices, but employers cannot oblige employees to use it on a private or company mobile phone outside of working hours. Access the article.

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Background Checks: The Advent of the New California Employment Class Action

Class action litigation brought under the Fair Credit Reporting Act (FCRA) is on the rise—particularly in California—after the US Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA’s disclosure requirements. Background checks are an integral part of the hiring process, but they open employers up to lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs’ firms are turning their attention to these cases because of the potential for statutory and actual damages, punitive damages, costs and attorneys’ fees. Please join us for a complimentary webinar Thursday, July 30 as we discuss strategies to help employers avoid and defend these claims. Learn more and register.

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Worker Safety, Privacy Clash as Temperature Checks Become Norm

Employers are poised to collect health data from their workforces daily as they adopt temperature checks and other screening protocols to fight the coronavirus, triggering concerns about workers’ privacy and whether the practices will continue beyond the pandemic. “The temperature checks give employees and customers the feeling of safety and the idea that the company is doing everything possible, even if the screenings don’t protect the workplace,” said Michael Sheehan, a partner with McDermott Will & Emery, in a recent Bloomberg Law article. Access the full article.

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COVID-19: FAQs on Employees Experiencing Symptoms and Employee Absences

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about employees experiencing symptoms and employee absences. Access the full article.

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Five Reasons Why Telehealth Is Here to Stay (COVID-19 And Beyond)

Telehealth is no longer just a nice-to-have, but instead a must-have for patients and healthcare professionals alike during the COVID-19 pandemic. Lisa Mazur, partner at McDermott Will & Emery specializing in the digital healthcare space, is quoted in a recent Forbes article about why telehealth is here to stay: “Telehealth was already experiencing significant momentum and growth prior to this public health emergency, and its continued trajectory has been solidified by the vital role it is playing in care delivery today.” Access the full article.

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The Rise of Facial Recognition Technology: Mapping the Legal Framework

In January 2020, the Supreme Court decided it would not hear the issue of whether Facebook broke the law in Illinois when it instituted a photo-tagging feature that honed in on users’ faces and tagged them without their consent, and Facebook has now settled with the users for $550 million. The Illinois law is part of a patchwork of laws applicable to facial recognition technology (FRT). McDermott’s Ashley Winton contributes to the second installment of a three-part article series on FRT. This article examines the applicable legal framework and regulatory guidance, including intellectual property rights, general privacy legislation, specific state biometric data laws and more. Access the full article. Originally published on Cybersecurity Law Report, February 2020

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HIPAA Boss Sees ‘Low-Hanging Fruit’ Ripe For Enforcement

Healthcare providers and insurers are still making tons of rookie mistakes on patient privacy, turning themselves into easy enforcement targets, according to Roger Severino, director of the US Department of Health and Human Services. Severino made headlines in 2017 for expressing interest in punishing a "big, juicy, egregious" privacy breach, and seemingly followed through with a $16 million settlement stemming from Anthem Inc.'s megabreach involving 79 million patients. But, an emphasis on smaller violations makes sense in light of the OCR's recent acknowledgement of limits on its penalty powers, said Edward G. Zacharias, a McDermott partner. Access the full article. Originally posted on Law360, February 2020

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4 Ways to Manage Retirement Plan Data in New Era of Cybersecurity

IBM estimated last year that data breaches cost companies $148 per stolen record. Given that, not surprisingly, many employers have grown increasingly concerned about the potential impact of such breaches, including breaches that may affect employer-sponsored benefit plans. Courts have not yet formally addressed whether ERISA requires benefit plan fiduciaries to manage cybersecurity risks. However, a federal district court recently rejected a motion to dismiss filed by defendants seeking to avoid liability for fraudulent distributions from a plan caused by cyber criminals. There, the court held that the defendants were plan fiduciaries and that the plaintiffs had pled facts sufficient to allege that the defendants breached their fiduciary duties. Although this decision only relates to a motion to dismiss, the case underscores the potential for plaintiffs to assert, even in the absence of clear guidance, that plan fiduciaries are not doing enough to protect...

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