Some might scoff at the idea of hot issues in the law world, but in today’s unprecedented times, everything seems to have some sort of legal consideration. Here’s a look at three important topics currently at the forefront.
On August 11, 2021, news dropped that global consulting firm Accenture had been hacked by the LockBit ransomware crew. In a bit of brazen cheek, the group even trumpeted the deed on its website.
It was the latest high-profile cybercrime, but it was only one of thousands of hacks that occur every year, to companies big and small. If it can happen to Accenture, which no doubt spends millions to protect its data, one can only imagine how vulnerable firms that don’t have the same resources might be.
“I think the thing companies should be most conscious about is having a comprehensive data security program,” says Bill Denny, a partner at the Potter Anderson & Corroon law firm in Wilmington. “There needs to be an understanding of what data you have, where it is located, what is most sensitive and how to put together a plan that protects your computer network while training employees to guard against scams and frauds.”
Businesses face a variety of challenges, especially those over the past 18 months, but the threat of losing proprietary data, customer information and employee records is one of the scariest scenarios. Not only could that cripple operations for a significant period of time but it could also breach the trust built with customers, vendors and suppliers.
Denny, who has been with Potter Anderson for 34 years, admits that like athletes who take performance-enhancing drugs and don’t get caught, the cheaters are always ahead of the testers. That’s why it takes constant vigilance and attention to make sure a company’s network is being evaluated and updated.
“The Internet was designed as an open network,” Denny says. “Everyone can communicate with everyone else. We’ve spent years and decades figuring out how to make it secure.”
Companies are always guarding against the last hack while the hackers have moved on to their next tricks. “You have to keep updating and patching your software,” Denny explains. That’s important, because some companies invest in a security program and then allow it to become antiquated. Worse, some businesses don’t even install measures in the first place.
Fortunately, Delaware law mandates that anyone who conducts business with the state “and owns, licenses, or maintains personal information shall implement and maintain reasonable procedures and practices to prevent the unauthorized acquisition, use, modification, disclosure, or destruction of personal information collected or maintained in the regular course of business.” Further, protocols established by Vice President Kamala Harris when she was attorney general of California have set standards for what “reasonable” is.
These steps will help businesses make sure they can avoid future hacks—or at least minimize the risk that they will get hit.
“Businesses face a variety of challenges, especially those over the past 18 months, but the threat of losing proprietary data, customer information and employee records is one of the scariest scenarios.”
There was a time when having a sick child could cause significant problems for a person’s career. Missing a client meeting or an important event because a child had to spend the day at home was potentially damaging for employees whose superiors didn’t tolerate or understand child care needs.
Because of the pandemic, these scenarios have changed at many companies.
“I have seen employers become much more understanding when employees have to work remotely,” shares Lauren Russell, an attorney specializing in labor and employment law at Young Conaway Stargatt & Taylor.
“The realities of child care obligations in a very tight labor market mean that many of our clients are having trouble hiring,” she continues. “That gives employees leverage. If you have to be one hour late Monday morning because you are waiting for your mom to come and care for your kids, that used to mean an employer would give you the heave-ho. Now, things are better and more flexible.”
The pandemic has also affected the labor market and the way companies recruit and relate to their employees. First, it is much harder to find people, and those who do sign on want a better work-life balance and recognition that they are important to a company—even if it means less money.
Mental health and disability accommodations are also more important than ever before. “We’re all holding our lives together with duct tape and anxiety,” Russell says. The result is greater awareness that 50-hour work weeks might not be tenable once the pandemic ends. Russell believes the biggest problems in that regard are to come.
“As the rate of vaccination increases and we start to come out it, the need to put our heads down and keep going is going to lessen,” Russell predicts. “People will start to experience mental health symptoms.”
One thing that did drop during the pandemic was the number of sexual harassment cases in the workplace, simply because fewer people were in offices. Russell expects that to grow as people leave their homes for work, but she sees another, newer impact.
“Women are probably going to see higher levels of psychological burnout,” she says. “For the most part, women picked up the burden at home during the pandemic.”
The Equal Employment Opportunity Commission has left no doubt about vaccination.
“Right now, the EEOC has stated clearly that employers are allowed to legally mandate requirements for employees to get vaccinated [against COVID-19],” says Jennifer Jauffret, a director at Richards, Layton & Finger and a labor and employment specialist.
But employers “must be able to grant reasonable exemptions based on medical conditions, pregnancy and religious exceptions. What is ‘reasonable’ depends on many circumstances.”
Like many areas of law, this is not a simple situation. Employers interested in mandating that their workers get the vaccine must make sure they have looked at the situation from a variety of angles to ensure they’re accommodating everyone. For instance, can people work remotely, as many employees have proven during the pandemic? What is the makeup of the workspace? Do workers interact with the public on a regular basis?
Though Delaware has no state law preventing vaccine mandates, there are still plenty of things to consider.
“For instance, are there other ways to address the problem, like weekly testing?” Jauffret asks. “Then, the employer has to keep track in a confidential way and have a system in place to make sure people’s information remains confidential.”
Some employees will try to circumvent mandates by working from home, but if they receive exemptions to be remote, others—even if they are vaccinated—might want similar accommodations.
“Employers are struggling to figure out how to do it,” Jauffret says. “Will it hurt morale? People are thinking about it, but they are not sure they are willing to take the step.”