Our colleague  at Epstein Becker Green has a post on the Technology Employment Law blog that will be of interest to our readers in the retail industry: “The GDPR Soon Will Go Into Effect, and U.S. Companies Have to Prepare.”

Following is an excerpt:

The European Union’s (“EU’s”) General Data Protection Regulations (“GDPR”) go into effect on May 25, 2018, and they clearly apply to U.S. companies doing business in Europe or offering goods and services online that EU residents can purchase. Given that many U.S. companies increasingly are establishing operations and commercial relationships outside the United States generally, and in Europe particularly, many may be asking questions akin to the following recent inquiries that I have fielded concerning the reach of the GDPR:

What does the GDPR do? The GDPR unifies European data and privacy protection laws as to companies that collect or process the personally identifiable information (“PII” or, as the GDPR calls it, “personal data”) of European residents (not just citizens). …

Read the full post here.

On Thursday, October 30, 2014, our colleague Stuart M. Gerson of Epstein Becker Green’s Litigation and Health Care and Life Sciences practices in the firm’s Washington, DC and New York offices will discuss the Hobby Lobby decision and its impact on the workplace.  The briefing will be held at the Cornell ILR School of Labor and Employment.  Other panelists include Marci A. Hamilton, Esq., Paul R. Verkuil, Esq., Arthur S. Leonard, Esq., and Paul W. Mollica, Esq.

Click here to learn more and to register

Thursday, October 30, 2014
8:30am – Registration & Breakfast
9:00am-11:00am – Program

Cornell ILR NYC Conference Center
16 East 34th Street, 6th Floor
New York, NY 10016

2.0 NYS CLEs – Professional Practice (Transitional and Non-Transitional)

$175 (includes materials and continental breakfast)

By Stuart M. Gerson

As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.

In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. 

The Court below had agreed with the State that agency fees were justified under the Court’s earlier precedents, particularly Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).  However, the Supreme Court’s majority, besides noting what it finds to be the weakness of Abood,  focused particularly on the fact that the employees in question were not really public employees.  Other than the fees paid to them, all of the indicia of employer status inured to the covered patients who had complete control over the selection of the workers and their conditions.

Justice Kagan, writing for the four liberal dissenters, sees the matter as allowing the straightforward application of Abood to the “fair share” provision at issue here that she argues covers all public employees. This, of course, was not the majority view. However, before proclaiming public employee unionization as seriously imperiled, as some commentators already have, please note that the majority criticized, but did not overrule, Abood. And, I’d suggest that that isn’t likely to happen anytime soon because I believe that the Chief Justice, who has attempted to be a moderating force on the Court, going back at least to the Affordable Care Act decision, and Justice Kennedy, as well, are just not going to go there. They are strong supporters of stare decisis, and they will stay that way.

An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly.

Over a lengthy and impassioned dissent by Justice Ginsburg, writing for the four liberals (herself and Justices Breyer, Kagan and Sotomayor), the majority, again led by the opinion of Justice Alito, held that the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion prevented the application to closely-held (non-public) corporations of the Affordable Care Act provision requiring that employers offer birth control coverage to their employees. The Court held that closely held for-profit corporations are entitled to religious freedom protections and, in contravention of RFRA, the government did not demonstrate that the mandate was the least restrictive means of furthering a compelling government interest.

Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides.  In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.

Moreover the decision implies a number of significant qualifications.  For example, RFRA doesn’t shield  employers who might cloak illegal discrimination (e.g., against gay people or racial minorities) as a religious practice.  Moreover, the decision concerns only the contraceptive mandate and doesn’t necessarily mean that all mandates must fail if they conflict with an employer’s an employer’s religious beliefs. Importantly, Justice Kennedy’s concurring opinion suggests that the government could pay for the coverage itself, so that women receive it. It is not unlikely that the Obama administration will seek to do just that.  In any event, per the majority, the government’s shortcoming was that it hadn’t shown that the mandate was the least restrictive means to accomplish its end. 

Not only did Justice Kennedy concur in a manner overtly respectful of the dissent, but the fact that Chief Justice Roberts didn’t assign the opinion to himself strongly suggests that he is not prepared to stand in a position of strong conflict with the Court’s liberals but instead to be a mediating figure.

The number of unanimous opinions of the Court this term has been the highest in recent years. Notwithstanding the inherently divisive nature of the two controversial opinions decided today, one thinks that it is not unlikely that greater concord will be the hallmark of the Roberts Court as it was for the Warren Court in earlier times.

Our Epstein Becker Green colleague Stuart M. Gerson recently commented in an article titled “4th Circuit Upholds ACA’s Employer Mandate, Says Insurance Regulation Within Commerce,” by Mary Anne Pazanowski, in Bloomberg BNA’s Health Care Daily Report. Following is an excerpt:

A unanimous U.S. Court of Appeals for the Fourth Circuit July 11 declared the Affordable Care Act’s employer mandate a valid exercise of Congress’s power to regulate commerce under the U.S. Constitution’s Commerce Clause (Liberty University Inc. v. Lew, 4th Cir., No. 10-2347, 7/11/13).

In an opinion co-authored by Judges Diana Gribbon Motz, James A. Wynn Jr., and Andre M. Davis, the court held that the mandate is ‘‘simply an example of Congress’s longstanding authority to regulate employee compensation offered and paid for by employers in interstate commerce.”

The ruling comes in a case filed by Liberty University Inc. and two individual plaintiffs that challenged both the individual and employer mandates. Treasury Secretary Jacob Lew has been substituted as a defendant in place of former Secretary Timothy Geithner.

Stuart Gerson, a former acting U.S. attorney general who is now an attorney with Epstein Becker Green in Washington, told BNA July 11 that ‘‘there is considerable force to the Fourth Circuit’s view that health insurance decisions affect employment, which itself is a matter of interstate commerce.”

He predicted that, if the case returns to the Supreme Court—as seems likely based on a July 11 press release from the university’s attorneys—there would be four solid votes to uphold the Fourth Circuit’s ruling. But, he said, ‘‘it is difficult to predict how the chief justice and the other four conservative justices come out on this point.” He added, though, that ‘‘one must at least recognize that there is a difference between an individual’s decision not to engage in commerce and the clear commercial activity in which Liberty indisputably engages.”

Of course, Gerson said, if the conservatives on the high court vote to uphold Liberty’s challenge to the employer mandate, Chief Justice John G. Roberts Jr. ‘‘could again perform the legerdemain and create a fifth vote for affirmance by holding that the employer man- date is supportable under the tax power as was the individual mandate in NFIB. The Fourth Circuit’s alternative reasoning allows for this result.”