Employment Law This Week: Zika Virus, EU-U.S. Privacy Shield, "Contributing Factor" Standard, H-1B Lottery

(1) Zika Virus: What Employers Should Know

Our top story this week: The Zika virus is on the march. For the fourth time in history, the World Health Organization has declared a global public health emergency, following the spread of the Zika virus throughout Latin America and the Caribbean. The disease can have harmful effects on fetuses, and the Centers for Disease Control and Prevention has warned against travel for pregnant women and their partners. The Zika crisis has important implications for employers. Workers who travel for their jobs may request accommodations, and employers should make these workers aware of the risks if they aren’t already. Denise Dadika from Epstein Becker Green gives her advice for employers. For more on this topic, click here. See also our extended interview with Denise Dadika.

(2) New Privacy Shield Agreement Replaces Safe Harbor

The United States and European Union (EU) agree to a Safe Harbor replacement framework. Negotiators from the European Commission, the executive body of the European Union, and the United States have agreed to a data transfer pact that will allow for the legal transfer of personal information across the Atlantic. The new Privacy Shield will require "strong oversight" by the U.S. Department of Commerce and the Federal Trade Commission to ensure the protection of personal data from individuals in the EU. U.S. companies receiving personal data from the EU will now likely have stronger obligations to protect the individual rights of EU citizens under the agreement. The new data pact still requires political approval. In the meantime, the EU Standard Contractual Clauses and Binding Corporate Rules remain valid. For more information on the EU-U.S. Privacy Shield, click here.

(3) Third Circuit Sets “Contributing Factor” Standard

The U.S. Court of Appeals for the Third Circuit defines “contributing factor” under the Sarbanes-Oxley Act. A former employee brought a retaliation claim against electronics maker Tyco, alleging that he was fired after whistleblowing activities. Tyco argued that the whistleblowing was irrelevant to his firing, which, as the company claimed, was based on a well-documented investigation into sexual misconduct. The Third Circuit ruled in favor of Tyco and, in doing so, established a new standard in the circuit for a “contributing factor,” defining it as “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.”

(4) H-1B Lottery Season Approaches

Employers prepare for the H-1B lottery. In less than two months, employers will submit their H-1B petitions to the U.S. Citizenship and Immigration Services, hoping to get one of 85,000 employment-based visas available for fiscal year 2017. The number of H-1B applications has increased in each of the last three years, with 233,000 applications filed for fiscal year 2016. Employers making decisions on whom to support for these visas should keep in mind that F-1 students with STEM (science, technology, engineering, and math) degrees face special challenges in obtaining extensions of their optional practical training (OPT), due to a recent district court decision. For more on the district court’s decision on the F-1/OPT STEM extension, click here.

(5) In-House Counsel Tip of the Week

Maryrose Maness, Senior Vice President & Chief Employment and Corporate Infrastructure Counsel at Warner Music Group, gives her advice on cybersecurity for global companies in light of the new EU-U.S. Privacy Shield agreement.