Employment Law This Week®: Biometric Privacy Ruling, Supreme Court and Arbitration, Overtime Rule, NLRB Update

Episode 135: Monthly Rundown

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This Employment Law This Week Monthly Rundown features a recap of the most important news from January 2019. The episode includes:

1. Illinois Supreme Court Rules for Biometric Privacy

A cause of action under Illinois’s stringent biometric privacy law does not require a plaintiff to be able to show that he or she suffered actual harm. The Illinois Supreme Court has held that the only requirement is proof of a violation of the individual’s rights. The case in question involved a teenager who was fingerprinted when he bought a season pass to an amusement park. We spoke to Jimmy Oh, from Epstein Becker Green, about the implications of this decision for employers:

“The Illinois Supreme Court’s recent decision in this case against Six Flags is notable because it’s the first decision from a state supreme court that holds that you can sue under a biometric privacy act without proving actual damages. In Illinois, there’s a private right of action, and the plaintiffs’ bar have picked up on that. They have been filing these lawsuits. But they have been somewhat in a holding pattern, waiting to see what would happen in this case, where the supreme court was asked to decide, ‘Can you actually pursue a lawsuit without having proven actual injury?’ And now that the Illinois Supreme Court has said ‘yes,’ that it’s a very notable decision. It’s creating a lot of attention because it is going to continue the onslaught of these types of cases in Illinois.”

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2. High Court Limits Court Powers in Arbitration Decisions

The U.S. Supreme Court has limited court powers to determine whether a case can be arbitrated. In his first opinion on the Supreme Court, Justice Brett Kavanaugh found that that a court cannot disregard an agreement that grants arbitrators the authority to determine whether a case is arbitrable. The issue at hand was whether, under the Federal Arbitration Act, a court may ignore this sort of provision if it finds the argument for arbitration to be “wholly groundless.” Writing for a unanimous court, Justice Kavanaugh said that courts could not “rewrite the statute passed by Congress and signed by the President.”

3. DOL Takes Final Step on New Overtime Rule

The Department of Labor (DOL) has moved forward on its new overtime rule. The DOL has sent the proposed new rule to the Office of Management and Budget, the final requirement before publication. The DOL originally proposed a new overtime rule in May 2016 at the end of the Obama administration. That rule was invalidated by a federal court in Texas shortly before it would have taken effect. The new rule is expected to raise the current minimum salary for “white collar” exemptions from $455 per week, and it could change the streamline tests for other exemptions under the Fair Labor Standards Act.

4. NLRB Update on Joint-Employer Issues

The National Labor Relations Board (NLRB) reinstated its rule on independent contractor classification. The NLRB has overturned its own 2014 decision, making it easier for certain workers to be classified as independent contractors under the National Labor Relations Act. The revived rule relied on by the NLRB allows for the consideration of “entrepreneurial opportunity,” among other factors, while the 2014 standard did not. The public comment period for the NLRB’s proposed rule establishing new joint-employer standards concluded on January 28, with replies now due by February 11. Chairman John Ring has indicated that the NLRB is also looking at additional rulemaking.

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5. Tip of the Week

And that brings us to our Tip of the Week. Ben Pring, Co-Founder and Managing Director of Cognizant's Center for the Future of Work, is here with some advice about artificial intelligence in the workplace:

“This isn’t science fiction anymore. This isn’t kind of Hollywood. This is real. It’s happening now. And it’s an important moment in which people who are doing that work, whether you’re leading a team or whether you’re kind of in the midst of that work, it’s an important time for people to be paying attention. But we also talk about the fact that it’s not, you know, technology for technology’s sake that really ultimately we’re all interested in. It’s changing work for the better, making better work.”

Stay tuned for further developments that may affect your business.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns. Follow us on LinkedInFacebookYouTube, and Twitter and subscribe for email notifications.

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This Employment Law This Week®episode was also featured in "Employment Law Update: New Overtime Rule Coming; Court Limits Arbitration Power," on TLNT, a resource for news, analysis and opinion on the business of HR for human resource and talent management leaders and professionals.