Tag: labor and employment

COVID-19: Paycheck Protection Program: Is this the solution you have been waiting for?

The $2.2 trillion coronavirus stimulus bill enacted by Congress on March 27 provides immediate cash assistance to small businesses that keep their employees or recall employees they have furloughed or laid off due to financial hardships related to COVID-19.  The money is available through a Small Business Administration (SBA) loan program that allows businesses to keep the loan proceeds as a grant for eligible expenses, including payroll, for the period between February 15 and June 30, 2020.

This program, called the Paycheck Protection Program (PPP), is a powerful tool for businesses with fewer than 500 employees to get immediate assistance with meeting operating expenses, with the prospect of not having to repay some or all of the loan.  It’s also available for nonprofits.

Here are the highlights of the program:

Maximum Loan Amount

  • The PPP raises the maximum amount for an SBA loan by 2.5x the average total monthly payroll cost, or up to $10 million.  The interest rate may not exceed 4%.

Qualified Costs

  • Payroll costs

  • Continuation of health care benefits

  • Employee compensation (for those making less than $100,000)

  • Mortgage interest obligations

  • Rent on any lease in force prior to February 15, 2020

  • Utilities

  • Interest on debt incurred before the covered period

Businesses Eligible to Obtain These Loans

  • Businesses with fewer than 500 employees.

  • Small businesses as defined by the Small Business Administration (SBA) Size Standards at 13 C.F.R. 121.201.

  • 501(c)(3) nonprofits, 501(c)(19) veteran’s organization, and Tribal business concern described in section 31(b)(2)(C) of the Small Business Act with not more than 500 employees.

  • Hotels, motels, restaurants, and franchises with fewer than 500 employees at each physical location without regard to affiliation under 13 C.F.R. 121.103.

  • Businesses that receive financial assistance from Small Business Investment Act Companies licensed under the Small Business Investment Act of 1958 without regard to affiliation under 13 C.F.R. 121.10.

  • Sole proprietors and independent contractors.

Loan Forgiveness

All or a portion of the loan may be forgivable, and debt service payments may be deferred for up to one year.  The amount forgiven will be reduced proportionally by any reduction in employees retained compared to the prior year and reduced by the reduction in pay of any employee beyond 25% of their prior year compensation. To encourage employers to rehire any employees who have already been laid off due to the COVID-19 crisis, borrowers that rehire workers previously laid off will not be penalized for having a reduced payroll at the beginning of the period.

Application Process

Current lenders through the Small Business Administration 7(a) are authorized to make determinations on borrower eligibility and creditworthiness without going through the SBA.  These lenders can be found here. For eligibility purposes, lenders will not be determining eligibility based on repayment ability, but rather whether the business was operational on February 15, 2020, and had employees for whom it paid salaries and payroll taxes, or a paid independent contractor.

Timeline

The SBA is required to issue implementing regulations within 15 days, and the U.S. Department of Treasury will be approving new lenders.

©2020 Pierce Atwood LLP. All rights reserved.

DOL Publishes Additional FAQs, Making Clear That Employees on Furlough or Layoff Are Not Eligible for FFCRA Paid Sick Leave or Expanded FMLA

The Department of Labor issued additional FAQs on Thursday March 26. They now offer 37 FAQs on how the paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act will apply. The leave obligations begin April 1, 2020.

As more and more employers are required to shutdown due to state orders or layoff employees due to business concerns, a frequently asked question is whether the employees impacted by these closures and layoffs will still be eligible for paid sick leave and paid FMLA leave under the FFCRA. According to the FAQs issued by the DOL, they will not:

24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

***

26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

In addition to several FAQs on the impact of layoffs and furloughs, the FAQs also address what documentation employers should request, whether the paid sick leave and paid FMLA can be used intermittently and whether other employer-offered paid leave can be used concurrently with that required by FFCRA.

Jackson Lewis P.C. © 2020

What Employers Need to Know About HIPAA

As the COVID-19 pandemic continues to affect everyday business operations across the country, employers are confronting a variety of issues on how to handle these disruptions. The intent of this Legal Update is to educate employers about under what circumstances they are permitted to disclose information related to an employee’s or patient’s positive test for COVID-19 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Americans with Disabilities Act (“ADA”).

It may be difficult in some circumstances to discern whether health information was received by an employer through its ordinary status as an employer or through its status as a self-insured health plan. Employers should take care in making this determination based on the facts and circumstances of each situation and seek legal counsel as needed.

Covered Entities under HIPAA

  • HIPAA defines “Covered Entities” to generally include health care providers, health plans, and health care clearinghouses.

  • Covered Entities may not disclose protected health information (“PHI”) unless permitted by HIPAA. An individual’s health status related to testing positive for COVID-19 is considered PHI.

  • One permitted disclosure under HIPAA is that Covered Entities may disclose PHI to public health authorities to the extent relevant to the authority and purview of public health authorities. This includes disclosing positive test results for COVID-19 to state and local health departments, HHS, or the CDC as appropriate.

  • Covered Entities may not disclose PHI to the media.

  • Unless an employer is otherwise a Covered Entity as described above, it is not subject to HIPAA’s restrictions on disclosures of PHI.

Confidentiality under the ADA

  • The ADA requires employers that obtain medical information through inquiry or examination to maintain it in a confidential medical file and keep it separate from the employee’s personnel file.

  • Employers have been encouraged by the CDC and EEOC to question their employees regarding travel, exposure, or symptoms related to COVID-19. Any medical information disclosed as part of this dialogue should be treated as confidential.

  • If a positive case is identified in the workplace, the employer is encouraged to investigate the exposure of others in the workplace without disclosing the name of the individual or any personally identifiable information about the person.

  • The confidentiality requirements under the ADA do not prohibit disclosure to state, local, or federal health departments.

Employers with a Self-Insured Health Plan

  • Notwithstanding the discussion above regarding employers, a self-insured employee health plan maintained by an employer is a Covered Entity under HIPAA (i.e. the plan itself, not the employer, although we acknowledge this distinction is difficult to make for most employers). As a result:

    • If the employer obtained the information through its status as a plan (i.e., as the payer for the employee’s health care services), then such information is PHI and subject to HIPAA (see first bullet above for Covered Entities).

    • If the employer receives the information in the ordinary course (e.g. voluntary disclosure by the affected employee), then the second bullet above regarding employer permitted disclosures is applicable.

©2020 von Briesen & Roper, s.c

The Coronavirus: Best Practices to Mitigate Risks in the Workplace

As impact of the Coronavirus Disease 2019 (COVID-19) continues to develop, employers and employees are increasingly concerned about the risk of contamination. Employers should consider practical steps to protect their employees, address employee concerns and maintain productivity during potential business disruptions that may result from the spread of this virus.

  • Education and communication are critical:  Employers should circulate the most recent Center for Disease Control and Prevention (“CDC”) guidance for employers, as well as state and local guidance, such as those provided by New Jersey and New York City. Review for updates from federal, state and local levels as there will be daily developments and updates. Provide significant updates to employees on a regular basis.   We recommend providing these materials via several methods, such as email, postings in breakrooms, on the company intranet, and hard copies inserted with weekly payroll. Ongoing regular communication with employees will create confidence that the business is taking their continued health seriously and help to avoid panic.

  • Encourage sick employees to stay home: When an employee calls in sick, particularly where the symptoms are associated with COVID-19, employers should err on the side of caution and encourage those employees to stay home. New York City and New Jersey both require employers to provide paid sick leave, which includes time off for employees to care for themselves, care for family members, for time off related to school closures and the like, which eligible employees may need to utilize. Employers should consult leave laws and policies that apply to the company. Moreover, employers should not require a healthcare provider’s note for employees who are sick with respiratory illnesses to validate their illness or to return to work. Relaxing such requirements is important given concerns about containing further spread of the virus and the potential inundation of healthcare providers who may have increasing limited resources.

  • Allow for telecommuting/teleconferencing: Employers should not place emphasis on in-person attendance, and should evaluate telecommuting options. This may require employers to temporarily relax current telecommuting policies, or to take steps to set up a method for telecommuting.

  • Review polices regarding travel and off-site events: Employers should review travel and off-site meeting needs and consider making in-person attendance voluntary.  If an employee voluntarily decides to attend off-site events, we recommend that employers require the employee to sign a short assumption of risk and waiver of liability.  If an employee declines to attend given concerns of the virus, employers should not treat such conduct as insubordination and should consider work around arrangements.  Teleconferencing may provide another means for employees to attend off-site functions.  The CDC guidance recommends travelers stay home for 14 days from the time the person leaves an area with widespread, ongoing community spread.  We recommend employers adopt similar policies as applied to employees returning from business or personal travel.

  • Encourage healthy practices:  Encourage employees to engage in healthy practices, such as regularly washing and/or disinfecting their hands. To the extent an employer is able to secure these items, they should  make disinfectants and hand sanitizers available to employees, especially upon entry to the work place.  Employers also should arrange for periodic industrial cleaning and notify employees of those efforts.

  • Identify areas of risk: Identify health risks specific to each work site, and a plan to address concerns.  Review CDC and the Occupational Safety and Health Administration’s guidance providing safety tips and highlighting potential areas of risk.

  • Avoid stereotyping: Employers should not make determinations of risk or treat employees differently based on race or country of origin.

  • Maintain confidentiality: If/when an employee is suspected or has been confirmed to have contracted the virus, employers should act to maintain confidentiality around the employee’s diagnosis. In addition, employers should refrain from asking employees questions about their symptoms and medical conditions or suspected conditions.

  • Train managers: Train managers on how to handle concerns and preventative steps that the company is taking to manage the potential spread of the virus.  Remind them of current policies and any changes that the business has decided to make to accommodate employees and business needs during this time. Encourage managers to promptly address all leave requests and meet with team members regarding concerns to engage in a dialogue to move forward in a way that benefits both the employee and the company. It may be prudent to appoint a single department or point of contact for COVID-19 questions or concerns that managers need to further discuss.

  • Consider other long term considerations such as:
    –  Consider creating a plan that involves how to prepare for a pandemic, including how to deal with office closures to avoid business disruption.  The CDC encourages employers to plan for a possible coronavirus outbreak and advises employers to ensure that their plan is flexible and well communicated to employees.  A formal plan may help the employer to focus on necessary steps to prepare and ensure a single message regarding preparedness is communicated to employees.

    –  Recognize that there may be legal rights associated with an employee who has the virus or who is perceived to have the virus under federal, state and local disability and leave laws.

    –  If employees are represented by a union, consider whether there are any issues that need to be addressed with the employees’ bargaining representative and whether there are any provisions in the company’s collective bargaining agreements that may be affected.

Importantly, employers should keep in mind that the U.S. is early in the process of understanding and combating COVID-19. The situation is rapidly evolving and employers will need to pay close attention to daily developments.  When in doubt, reliance on the guidance provided by health experts, government agencies, and counsel will best insulate employers from exposure to liability for discrimination, privacy or other legal claims from employees.

© Copyright 2020 Sills Cummis & Gross P.C.

For more on the COVID-19 pandemic, please see the National Law Review Coronavirus News page.

Options for Employers When Employees Cannot Work From Home

Despite many politicians and employers discussing the option for employees to work at home, there are millions of employees who simply cannot do that. Bartenders, restaurant servers, cashiers, and many others have no one to serve and nothing to ring up when they work at home.

Employers of such employees accordingly have a difficult decision to make when business is at an all-time low or they have been shut down. Most cannot afford to pay employees during this time period and hope employees will qualify for unemployment benefits. The question for these employers thus becomes–to fire, or not to fire.

This is where a work furlough comes into play. A work furlough is essentially a temporary layoff that qualifies for unemployment benefits.

Furloughs rose in popularity some years ago when businesses had to cut costs. Most employers knew employees who worked from paycheck to paycheck would suffer a financial hardship if the employees lost their jobs. Employers did not want to terminate employment. These employers wanted to minimize the negative impact, psychologically and monetarily, a termination brings, and the hard feelings an employee may carry following termination. Employers wanted employees who were already-trained to return to work at the end of a furlough, rather than having to start the hiring process from scratch.

Work furloughs generally have a set beginning and end date, similar to the 15-day shut-down ordered in many cities. The employer does not pay the employee during the furlough. Employees, however, generally qualify for unemployment compensation benefits.

Employers who want to maintain better relations should tell their employees to apply for unemployment benefits on the first day of the furlough. This ensures the employees will receive the maximum compensation possible. Even an employee who uses vacation time or personal time may qualify for unemployment benefits.

Usually there is a one week waiting period before an employee is eligible to receive any unemployment benefits. Many states have benevolently waived this one week waiting period for job losses suffered due to the pandemic. In these states, employees will receive benefits beginning “day 1.” The employee will receive compensation during the second week and any later weeks during which the employee is not working.

Any employee who files after the first week of the furlough must use the second furlough week as the waiting period. The employee, therefore, loses a week of unemployment compensation.

Even if the furlough period is only one week in length, employees should file for benefits. This helps the employee if the employer is forced to extend a furlough or put employees on furlough again later that same year. The one-week waiting period only applies to the first week when the employee did not work during the first furlough. The employee does not have to wait yet another week to receive benefits (compensation) during any furloughs that take place within 12 months of the first furlough.

While furloughs are an excellent option for employers to consider, any employer considering termination or a furlough must carefully consider all state and local laws; the state emergency declarations and laws issued, given the pandemic; and federal law, including any relief package or whether the number of employees furloughed triggers obligations under WARN.

© Polsinelli PC, Polsinelli LLP in California

For more on the COVID-19 outbreak, see the National Law Review dedicated Coronavirus News section.

COVID-19: Navigating the Issues Faced by Employers

The ongoing COVID-19 outbreak has brought about a whole range of novel legal considerations for employers in Singapore.

Stay-home orders

There are mainly two types of “stay-home orders” which are currently being implemented in Singapore. They are the:

  • Quarantine Order (“QO”); and
  • Stay-Home Notice (“SHN”).

A QO is a directive issued to quarantine or isolate an individual who is, or is suspected to be, a carrier or contact of an infectious disease.

A SHN is a new measure that took effect on 18 February 2020, effectively replacing the then prevailing leave of absence (“LOA”) measure, which was less stringent. The SHN would be issued to individuals returning to Singapore from certain designated regions within the last 14 days from their date of return.

Obligation to pay employee salaries

QOs are served on individuals by the Ministry of Health (“MOH”). The period of absence from work necessitated by the QOs should be treated as paid hospitalization leave, as part of the employer’s hospitalization leave eligibility under their employment contracts, collective agreements, or under the Employment Act. For employees who have used up their paid hospitalization leave, employers are urged (but not statutorily mandated) to exercise compassion and flexibility by granting additional paid hospitalization leave.

During the SHN period, if remote working is not possible, employers are encouraged to provide additional paid leave on top of the employees’ annual leave entitlements for the SHN, especially if the reason for the employee being on SHN is that he had to undertake work-related travel. If that is not feasible, employers can consider the following options, or a combination of the options, for the employees on SHN:

  • Treat employees’ SHN as paid hospitalisation leave or paid outpatient sick leave;
  • Allow employees to apply for annual leave;
  • Allow employees to use advanced paid leave or apply for no pay leave, for employees who have used up their leave entitlements; or
  • Other mutually agreed arrangements between the employers and employees/unions.

The Ministry of Manpower (“MOM”) is providing support to help businesses who are affected by the SHNs in the form of a SHN Support Programme. The MOH has similarly put in place a Quarantine Order Allowance Scheme. Both of these are in place to mitigate the financial impact for employers of those who have been served QOs/SHNs, subject to the fulfilment of eligibility criteria.

Obligation to provide a safe work environment

Under the Workplace Safety and Health Act, employers in Singapore have a duty to take, as far as is reasonably practicable, such measures as are necessary to ensure the safety and health of its employees at work. Employers also have similar obligations under common law.

Data privacy issues arising from contact tracing

The Personal Data Protection Commission advisory provides that organisations may collect personal data of visitors to premises for purposes of contact tracing and other response measures in the event of an emergency, such as during the outbreak of COVID-19.

In the event of a COVID-19 case, relevant personal data can be collected, used, and disclosed without consent during this period to carry out contact tracing and other response measures, as this is necessary to respond to an emergency that threatens the life, health, or safety of other individuals.

Organisations that collect such personal data must comply with the data protection provisions of the Personal Data Protection Act 2012.

Temperature taking

Employers are encouraged to take the temperatures of employees and visitors, and record their names, NRIC/FIN/Passport numbers (for visitors), and temperatures during this period of time. It is also permitted and advisable to monitor employees and visitors for other respiratory symptoms such as coughing, runny nose, shortness of breath, and breathing difficulties.

Regulatory enforcement

The local regulators take contraventions of the COVID-19 measures very seriously, and have been actively enforcing these measures against employers and work-pass holders.

As of 24 February 2020, the MOM has punished a total of 10 work-pass holders and nine employers for flouting MOM’s LOA requirements.

Copyright 2020 K & L Gates

ARTICLE BY Christopher Tan and Mayumi Soh of K&L Gates.
For more on working from home, see the National Law Review Labor & Employment law page.

EMPLOYERS BEWARE: $2.4M Jury Verdict Serves as a Reminder of the Duty Employers Owe to Their Employees

A recent New Jersey Superior Court case involving PNC Bank as a defendant should serve as an eye-opening reminder to all employers that it has a duty to maintain a safe and healthy workplace for all employees, free from harassment, discrimination and any other tort or prohibited conduct. Notably, this duty to maintain a safe and healthy workplace not only applies to the eradication of wrongdoing by employees, but also affords protection to employees from improper acts of non-employees such as customers, clients, vendors, independent contractors, etc.

Following a jury trial in Essex County, PNC Bank was deemed liable in the amount of $2.4 million in damages, consisting of both back and front pay, as well as past and future emotional distress damages, awarded to a former employee who claimed she was the victim of a sexual assault/gender discrimination by a bank customer in 2013. The Plaintiff argued that the customer in question was known by the Bank to have groped and harassed others in the past, yet the Bank did not take the appropriate, remedial measures to ensure her safety and prevent it from happening again.

Although the Bank claims that it had no such knowledge of the prior bad acts of the customer and had no way of knowing any such assault would occur towards the Plaintiff, the jury clearly did not accept that defense.

This case is yet another example on how important it is to have a well-established and widely distributed anti-harassment and discrimination policy and training for all staff in the workplace, applicable to all those susceptible to harassment or discrimination in the workplace, whether it be by fellow employees or otherwise, such as customers or guests.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more about employer responsibilities, see the National Law Review Labor & Employment law section.

An Overview of STEM OPT Employer Site Visits

Employers who have employed F-1 students in the Science, Technology, Engineering, and Mathematics (STEM) category of the Optional Practical Training (OPT) program can expect site visits by the Student and Exchange Visitor Program (SEVP). The March 2016 STEM OPT rule allows the United States Department of Homeland Security (DHS) to conduct site visits of employers that train STEM OPT students.

Conducting Site Visits

The site visits are aimed to ensure that STEM OPT students are in compliance with the OPT program rules. Employers must engage the students in a structured, work-based learning experience consistent with the practical training and other information provided in Form I-983 – Training Plan for STEM OPT students. Employers will receive prior notification of such visit and the DHS will then assess if the program mentoring is working for both the student and employer.

The DHS is looking to verify if the employer has enough supervisory personnel to effectively maintain the program. The DHS might first request information through phone or email and conduct a site visit right after giving notice or do so later.  The DHS may ask employers to provide evidence that they use to assess the wages of similarly situated U.S. workers. The DHS will maintain all the information that is obtained during a site visit.

Consequences of Site Visits

The DHS’s Immigration and Customs Enforcement (ICE) will be overseeing employer location site visits. The DHS may refer matters to the U.S. Department of Labor or any other appropriate federal agency if the site visit warrants such referral.

If the DHS determines that an employee or student needs to update or clarify any information, the DHS will send a request in writing to the employer on how they should provide that necessary information.

Preparation for Students and School Officials

Students and Designated School Officials (DSO) must be prepared in anticipation of these upcoming site visits. Students must update their information in the SEVP portal or report updates to their school officials to make sure that their employer information and home addresses are up-to-date. Students must also be careful to update the address and name of the employer’s location where they are working. DSOs should also be prepared to provide the student’s up-to-date Form I-983 if requested.

Preparation for Employers

Now will be a good time for the employers to ensure that Form I-983 is updated and to ensure that the student’s training complies with the training plan. Also, to designate a company representative and train them on how to handle any such site visits by ICE. Employers must also maintain audit files containing all relevant STEM OPT form copies and supporting documents.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on DHS STEM OPT visits, see the National Law Review Immigration law sections.

Proposed Washington State Law Would Create 32-Hour Workweek

New legislation recently introduced in the Washington State Legislature seeks to implement a 32-hour workweek for nonexempt Washington-based workers. If the proposal were to become law, employers would be required to pay overtime compensation to nonexempt employees whose workweeks exceed 32 hours.

Senate Bill (SB) 6516 proposes to amend RCW 49.46.130, the Washington law that establishes a 40-hour workweek in the state. Because the proposal would amend but not replace the existing law, the current exemptions would remain applicable—and none have been amended by the proposed bill. Instead, the bill’s proposed changes merely—but monumentally—revise the references in RCW 49.46.130 from a 40-hour workweek to a 32-hour workweek.

The lead cosponsor of SB 6516 is Washington State Senator Joe Nguyen. In several interviews, Senator Nguyen seems to view the proposal as a “conversation” starter and a “concept” to begin discussing. Because it appears to be a preliminary measure, we do not expect the proposal to pass, but, we will continue to follow SB 6516 closely and provide legislative updates as necessary.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more on workweek hour legislation, see the National Law Review Labor & Employment law page.

Employee Video Surveillance: Position of the European Court of Human Rights

On October 17, 2019, the European Court of Human Rights (ECHR) approved the installation of a Closed-Circuit Television (“CCTV”) surveillance system which was used to monitor supermarket cashiers without informing those employees of the fact that it had been installed.

In this case, a Spanish supermarket manager decided to install cameras in the supermarket because of suspected thefts. He installed (i) visible cameras pointing at the supermarket’s entrance and exit of which he had informed the staff and (ii) hidden cameras pointing at the cash registers of which neither employees nor staff representatives had been informed.

The hidden cameras revealed that thefts were being committed by several employees at the cash registers. The concerned employees were dismissed. Some of them brought an action before the Spanish Labor court arguing that the use of CCTV without their prior knowledge was a breach to their right to privacy and that such evidence could not be admitted in the dismissal procedure.

Like French law, Spanish law requires the person responsible for a CCTV system to inform the concerned employees of the existence, purpose, and methods of the collection of their personal data, prior to implementation of the system.

The case was brought before the ECHR, which gave a first decision on January 9, 2018, concluding that Article 8 of the European Convention for the Protection of Human Rights, relating to the right to privacy, had been breached. The case was then referred to the Grand Chamber.

The issue raised was to find the proportionality and the balance between (i) the reasons justifying the implementation of a CCTV system (i.e., the right of the employer to ensure the protection of its property and the proper functioning of its business) and (ii) the employees’ right to privacy.

The ECHR stated that “domestic courts must ensure that the introduction by an employer of surveillance measures that infringe the employees’ privacy rights is proportionate and is implemented with adequate and sufficient safeguards against abuse”, referring to its previous case law [1].

The ECHR considered that in order to ensure the proportionality of CCTV measures in the workplace, domestic courts should take into account the following factors when balancing the interests involved:

  1. Has the employee been informed of the possibility of being subject to a video surveillance measure?
  2. What is the extent of the video surveillance and what is the degree of intrusion into the employee’s private life?
  3. Has the use of video surveillance been justified by the employer on legitimate grounds?
  4. Was there an alternative surveillance system based on less intrusive means and measures available to the employer?
  5. What were the consequences of the surveillance for the employee who was subject to it?
  6. Was the employee concerned by the video surveillance measure offered adequate guarantees?

Therefore, prior notification to the employees is only one of the criteria taken into account in the balance of interests.

In this particular case, the ECHR approved the examination of proportionality of the video surveillance measure. The Judges decided that despite the lack of prior notification to the employees, the CCTV was (i) justified by suspicions of theft, (ii) limited in space (only a few checkout counters), and (iii) limited in time (10 days). The Court also noted that very few people watched the recordings and then concluded that the degree of intrusion into the employees’ privacy was limited.

Consequently, the Grand Chamber considered that there was no violation of the employees’ privacy rights.

Although this decision does not directly concern France, it remains very interesting since French regulations (i.e., the Data Protection Act, the General Data Protection Regulations, and the Labor Code) provide:

  • that the monitoring measures implemented by an employer must not impose restrictions on the employees’ rights and freedoms which would neither be proportionate nor justified by the nature of the task to be performed (Article L. 1121-1 of the Labor Code); and
  • that concerned employees and staff representatives must be informed prior to the implementation of a video surveillance system (Article L. 1222-4 of the Labor Code).

According to French case law, any system that is not compliant with the above is considered illicit and the information collected could not be used as evidence of an employee’s misconduct [2].

The ECHR’s decision seems to challenge French case law: where the absence of prior notification to employees is considered as an overwhelming obstacle by French judges, the ECHR considers that it is merely one of the several criteria to be taken into account to assess the proportionality of the infringement to the employee’s right to privacy.

The question that remains is: what will be the impact of the ECHR’s decision in France?

NOTES

[1] ECHR, Grand Chamber, September 5, 2017, n°641996/08, Bărbulescu c. Roumanie; ECHR, decision, October 5, 2010, 420/07, Köpke c. Germany.

[2] See French Supreme Court, June 7, 2006, n°04-43866 ; French Supreme Court, September 20, 2018, n°16-26482.

Copyright 2019 K & L Gates

ARTICLE BY Christine Artus of K&L Gates.
For more on employee privacy rights, see the National Law Review Labor & Employment Law section.