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Zika Virus, EU-U.S. Privacy Shield, “Contributing Factor” Standard, H-1B Lottery - Episode 15: Week of February 15, 2016 [VIDEO]

We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! 

This week’s stories include ...

(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. 

(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. 

(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. 

(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.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VI, Number 46


About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
Denise Merna Dadika, Epstein Becker Green, Discrimination Policy Attorney, Employee Relations Lawyer

DENISE MERNA DADIKA is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm's Newark office.

Ms. Dadika:

  • Represents employers in state and federal courts and before administrative agencies on issues involving harassment, discrimination, retaliation, breach of employment contracts, wage and hour compliance, tort claims, and restrictive covenants

  • Counsels employers on day-to-day workplace issues, including hiring and promotion, discipline and termination, leaves of absence, workplace accommodations, wage and hour compliance, internal investigations, and reductions in force

  • Drafts employment policies and procedures, employee handbooks and manuals, and employment agreements

  • Provides workplace training for employees, managers, and human resources personnel on various employee relations issues and laws

  • Conducts internal investigations on behalf of management on such issues as sexual harassment and disparate treatment