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Articles by Lindley Savage
A Rise in DSARs: Why Can Data Subject Access Requests Be Such a Burden?
Under UK data protection legislation, individuals, also called “data subjects”, have the right to make a data subject access request (DSAR) to organisations that “process” their personal data. Similar rights are required by both the EU’s General Data Protection Regulation and the California Consumer Privacy Act. Amongst other things, as part of a DSAR, data subjects can expect to receive a copy of their personal data.
SEC Proposes New Requirements to Address Conflicts of Interest in the Use of Artificial Intelligence and Similar Technologies
On July 26, 2023, the SEC issued proposed rules under the Securities Exchange Act of 1934 and the Investment Advisers Act of 1940 to address conflicts of interest that the SEC believes are associated with the use by broker-dealers and investment advisers of predictive data analytics (PDA) and PDA-like technologies, such as artificial intelligence (AI), in investor interactions.
Regulatory Scrutiny of “Off-Channel” Communications Continues: 11 Wall Street Firms Agree to Pay the SEC $289 Million in Civil Money Penalties for Recordkeeping Violations
On August 8, 2023, the United States Securities and Exchange Commission (the “SEC” or the “Commission”) announced that 11 Wall Street firms (10 broker-dealer firms and one dually-registered investment adviser) agreed to settle charges for failing to properly maintain and preserve electronic communications relating to firm business.
New York City Law Tackles AI Bias in Employment
New York City has implemented regulations governing the use of artificial intelligence (“AI”) and automated decision-making tools in the employment space. New York City Local Law 144 was set to go into effect on January 1, 2023, but after receiving numerous responses during the public comment period, the New York City Department of Consumer and Worker Protection (DCWP) delayed the effective date to July 5, 2023.
A Glimmer of Hope? Court Vacates $228 Million Judgement From First BIPA Jury Trial
In a landmark decision, U.S. District Judge Matthew Kennelly vacated a $228 million damages award in Richard Rogers v. BNSF Railway Co., the first case tried to a verdict under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), and ordered a new jury trial limited to the question of damages. (See full Opinion and Order here.) The Rogers ruling applies the Illinois Supreme Court’s decision in Cothron v. White Castle System, Inc.
New York City Law Tackles AI Bias in Employment
New York City has implemented regulations governing the use of artificial intelligence (“AI”) and automated decision-making tools in the employment space. New York City Local Law 144 was set to go into effect on January 1, 2023, but after receiving numerous responses during the public comment period, the New York City Department of Consumer and Worker Protection (DCWP) delayed the effective date to July 5, 2023.
Minnesota Enacts Ban on Non-Competition Agreements
On May 24, 2023, Minnesota Governor Tim Walz signed SF 3035, a sweeping omnibus bill that addresses a laundry list of employment topics (the “Law”). Among the new restrictions, the Law contains a near-total ban on non-compete agreements, which goes into effect July 1, 2023. Specifically, any non-compete agreements entered into on or after July 1, 2023, will be void and unenforceable under Minnesota law, although any other valid provision in the agreement or contract can be enforced.
Canada’s Wildfires Are a Good Reminder of an Employer’s Duty to Provide a Workplace Free of Known Safety and Health Hazards
The headlines this week have provided striking images of smoke from Canadian wildfires descending on New York City, Boston, Philadelphia, and other cities in the United States. The poor air quality associated with wildfires means more than cancelled sporting events, spoiled beach days, and cancelled flights. Wildfire smoke can be extremely harmful to the lungs, especially for children, older adults and those with asthma, COPD, bronchitis, chronic heart disease, or diabetes.
Amendment to Chicago Human Rights Ordinance Protects Bodily Autonomy of Workers
As of February 1, 2023, the Chicago Human Rights Ordinance (“CHRO”) provides protections for the bodily autonomy of workers. Under the amendment, an employer may not discriminate or retaliate against an applicant or employee because of the decision(s) of that individual, or of that individual’s family member, regarding reproductive health care or gender-affirming care.
Possible Bias in AI Selectivity? EEOC Issues Guidance on Use of Artificial Intelligence in Employment Selection Procedures
The recent advancements in Artificial Intelligence (AI) and the emergence of ChatGPT have opened up new possibilities for employers to enhance efficiency and reduce human error. But with these advances comes potential risk. Acknowledging the advent of the use of AI in the workplace, the Equal Employment Opportunity Commission (EEOC) launched its Artificial Intelligence and Algorithmic Fairness Initiative in late 2021.
New York State Releases Its Finalized Updated Model Sexual Harassment Prevention Policy
New York State has released updated sexual harassment prevention materials for employers, which now include information related to gender identity, bystander intervention, remote work, and new methods of reporting harassment.
Initial Guidance for the Domestic Content Bonus Credit Issued
On May 12, 2023, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) issued Public Notice 2023-38, indicating their intent to propose regulations to address application of the rules that taxpayers must satisfy in order to qualify for the “domestic content” bonus tax credit established in the Inflation Reduction Act (IRA).
SEC Reopens Comment Period for Investment Adviser and Investment Company Cybersecurity Proposals in Connection with Other Cyber and Data Privacy Related Proposals
On March 15, 2023, the SEC reopened the comment period on proposed rules and amendments related to cybersecurity risk management and cybersecurity-related disclosure for registered investment advisers, registered investment companies and business development companies that were proposed on February 9, 2022. The initial comment period ended on April 11, 2022.
Navigating FDA Manufacturing Guidelines for Animal and Pet Food Products
The FDA has recently stepped up its enforcement activity with respect to animal and pet food manufacturing. On February 8, 2023, the FDA announced an expansion of a voluntary recall for a Nestlé Purina dog food product. On March 10, 2023, the FDA announced a voluntary recall of cat and dog supplements distributed by Stratford Care USA due to elevated levels of vitamin A found in the supplements. And on March 14, 2023, the FDA published a warning letter issued to Primal Pet Foods, Inc.
Sexual Harassment Prevention Training Deadline Approaches for Chicago Employers
As a reminder to employers in Chicago, anti-sexual harassment training is required by Chicago’s Human Rights Ordinance and must be completed by July 1, 2023. This requirement applies to all Chicago employers, regardless of size or industry. The training consists of one (1) hour of anti-sexual harassment training for all non-supervisory employees and two (2) hours of anti-sexual harassment training for supervisory employees.
Who is Watching The Watchers? California Seeks to Limit Monitoring of Remote Employees
Electronic monitoring of employees’ remote work has increased in the last few years as employers have become concerned with employee productivity during the Covid-19 pandemic. Monitoring technology can track the websites an employee visits and for how long, the number of keystrokes or mouse movements an employee has in a given time period, when an employee is away from their computer and even what an employee is typing, reading or watching.
California Mandates Five Days of Unpaid Bereavement Leave
With the passage of AB 1949, California joins a short but growing list of states that now mandate bereavement leave. AB 1949 amends the California Family Rights Act (“CFRA”), and starting January 1, 2023, employers will be required to provide eligible employees up to five days of unpaid bereavement leave upon the death of a family member. “Family member” includes a child, parent, grandparent, grandchild, sibling, spouse, parent-in-law or domestic partner.
EEOC Releases Updated “Know Your Rights” Poster
On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated “Know Your Rights” poster, replacing the previous “EEO is the Law” poster. Federal law requires all covered employers to prominently display updated posters at their workplaces. Employers should take this time and check to see if the EEOC posters placed or distributed in their workplaces are the most recent versions.
DOL’s Proposed Independent Contractor Rule Would Classify More Workers As Employees
On October 11, 2022, the Department of Labor (“DOL”) unveiled a proposed rule to define the test for independent contractor status under federal wage and hour law. The proposed rule is the latest in a series of back-and-forth political maneuverings and seeks to replace a proposed Trump administration regulation that sought to classify workers as independent contractors if they own their own businesses or have the ability to work for competing companies (the “Contractor Rule”).
Illinois Federal Court Applies Seventh Circuit’s Albert v. Oshkosh Decision to Dismiss ERISA Excess Fee Case
Previously, we discussed the Seventh Circuit’s August 2022 decision applying the context-specific language in the Supreme Court’s Hughes v. Northwestern decision to affirm the dismissal of an excessive fee case brought against the Oshkosh Corporation. On September 22, 2022, a federal judge in the Northern District of Illinois dismissed a similar excessive fee case brought against the Exelon Corporation. In Baumeister, et al. v.
Prohibiting Mandatory Arbitration: Ninth Circuit Agrees to a Re-Do
The three-judge panel that decided AB 51 was (mostly) lawful, and that employers could not retaliate against employees who refused to sign arbitration agreements as a condition of employment, withdrew the decision and agreed to take another look. On August 22, 2022, two of three members of the panel that decided Chamber of Commerce of the U.S. v. Bonta voted to withdraw the ruling sua sponte and agreed to a rehearing in light of the U.S. Supreme Court’s ruling in Viking River Cruises v. Moriana.
Public Hearing on Proposed Rule Changes to the Illinois Equal Pay Act
On August 9, 2022, the Illinois Department of Labor (“IDOL”) held a hearing to field public comments on its draft regulations to implement the recent amendments to the Illinois Equal Pay Act (the “Act”). Our previous posts on the Act and the new requirements for Illinois employers are available here and here. The hour-long hearing allowed anyone interested in the draft regulations to make comments or submit written testimony.
The Third Circuit Decides “We’re (Not) Nationwide”
Widening the split among circuit courts, the Third Circuit recently rejected attempts by two out-of-state employees to join an FLSA collective action as opt-in plaintiffs because their claims did not “arise out of or relate to” the defendant’s contacts with the state in which the case is pending. In Fischer v. Federal Express Corp.
State Bereavement Laws and their Impact on Employers
Starting January 1, 2023, Illinois employers are required to provide employees with unpaid bereavement leave following the loss of a family member or planned family addition. The Family Bereavement Leave Act (FBLA) amends Illinois’ Child Bereavement Leave Act of 2016 (CBLA) and adds Illinois to a short list of states (which includes only Oregon and Maryland) that require employers to provide for bereavement leave.
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