Five Key Employment Law Issues Facing the Health Care Industry

by Epstein Becker & Green
Contact

Epstein Becker & Green

[co-author: Ashley Creech - Summer Associate]

Employers in the health care industry are dealing with a growing number of employment law challenges. In this edition of Take 5, we identify the key issues confronting health care employers and discuss how to manage these challenges.

First, as health care employers continue to face a rise in the number of workplace violence incidents, we examine measures to address and curb these incidents. In addition, in light of the fact that health care employers are increasingly vulnerable to allegations of False Claims Act violations, we identify the steps that employers should consider when responding to resignation letters alleging health care fraud. We pinpoint the employment law risks that buyers should recognize and assess during the due diligence process as well as the restrictive covenant issues to consider in health care transactions. Finally, we focus on the data privacy and security requirements under Europe’s new privacy law and the steps for complying with these requirements.


1. Protecting Health Care Workers from Workplace Violence

By Nathaniel M. Glasser and Andrea K. Douglas

Incidents of workplace violence are on the rise overall. Health care workers suffer the greatest number of reported workplace injuries, with over 650,000 individuals injured each year. A recent report from the U.S. Government Accountability Office indicates that assaults and attacks in hospitals result in “at least” five times more lost work days than in private-sector employment settings overall. In addition to the physical toll of an assault, violence may have an adverse effect on health care workers’ job motivation, potentially compromising the quality of care that they provide to patients and clients. While lawmakers have recently introduced legislation aimed at curbing incidents of workplace violence in health care settings, at present, there are no federal laws or regulations that explicitly address this problem. But other sources provide guidance to health care industry employers seeking to reduce the occupational hazard presented by workplace violence.

As we reported previously, governments and health care industry overseers have recently taken additional strides to combat violence in health care employment settings. In enacting the Workplace Violence Prevention regulation, effective April 1, 2018, California became the first state to require health care facilities to develop and implement comprehensive workplace violence prevention programs. In addition, on April 17, 2018, the Joint Commission—a nonprofit organization that provides accreditations to health care organizations—developed a list of steps that hospitals should take to improve safety and reduce the risk of workplace violence. Finally, the Occupational Safety and Health Administration (“OSHA”) recently overhauled its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The California law and the guidelines promulgated by OSHA and the Joint Commission provide important takeaways for health care employers evaluating workplace violence prevention programs.

Provide Workplace Violence Prevention Training

California’s Workplace Violence Prevention regulation mandates that health care industry employers in that state develop a violence prevention plan that includes annual personnel education and training. Health care industry employers in all jurisdictions should consider implementing similar training programs to help employees recognize and report episodes of workplace violence. Both the Joint Commission’s and OSHA’s guidelines suggest that training should include a definition of “workplace violence” as encompassing a wide range of behaviors, which may include verbal assaults as well as physical acts of aggression. Educating health care workers on the behaviors that are considered “workplace violence” may help employees in health care settings recognize and appropriately report violent incidents. 

Develop a System for Investigating and Responding to Violent Incidents

The Workplace Violence Prevention regulation also requires health care industry employers in California to adopt a comprehensive plan for responding to workplace violence. Both the Joint Commission and OSHA recommend that response protocols include information about the use of de-escalation techniques, the response to alarm systems, the use of safe rooms, escape plans, and the reporting of any instance of physical or verbal violence towards health care workers. OSHA’s guidelines identify steps to follow in conducting incident investigations, including reporting; identifying root causes; and reviewing relevant information, such as training records and past incident reports.

Implement Procedures to Assess Safety and Security Measures

California’s Workplace Violence Prevention regulation also requires that health care industry employers annually evaluate factors that could prevent workplace violence in their facilities. Similarly, OSHA and the Joint Commission recommend that health care employers frequently assess the workplace to identify potential hazards that may lead to incidents of workplace violence and revise violence prevention plans appropriately. Health care employers should also solicit input from health care workers, security staff, and custodial personnel when inspecting the workplace and identifying physical spaces presenting greater risks of violence against employees. Employers should consider interventions tailored to health care settings, including maintaining clear sightlines when employees are caring for patients, providing access to panic buttons or phones to call for emergency assistance, and fortifying security at points of entry and parking lots.

By taking steps to address workplace violence, health care employers will foster a workplace that allows employees to focus on patient care. Implementing effective workplace violence programs can lead to improved employee safety and morale. Health care employers should consult counsel to develop workplace violence prevention programs that are effective and compliant with applicable laws.


2. What Is the Best Response to Righteous Indignation Resignation Letters Relating to Allegations of Health Care Fraud?

By Kathleen M. Williams, Jonathan K. Hoerner, and Ashley Creech*

Health care employers continue to remain vulnerable not only to allegations of False Claims Act violations but also to associated retaliation complaints. As noted in a Department of Justice (“DOJ”) press release, in fiscal year 2017, the DOJ received $3.7 billion in settlements and judgments involving false claims—$2.4 billion in the health care industry, involving drug companies, hospitals, laboratories, physicians, and pharmacies. Many of these settlements and judgments grew out of qui tam lawsuits, a type of lawsuit under the False Claims Act that allows a person—known as a “whistleblower”—who exposes fraudulent information and activity against the government, to sue on behalf of the government.[1] While a qui tam lawsuit can be brought by any private person, it is often initiated by contractors, employees, or former employees as these individuals typically have greater access to detailed information about the operations of the health care entity.

Employees, as well as contractors, who are whistleblowers are protected under the False Claims Act from retaliation by their employer. If an employer takes an adverse action against an individual because that individual engaged in protected activity under the False Claims Act (such as making certain types of complaints that the employer’s actions are illegal), the employer may be held liable for retaliation under the False Claims Act.[2]

Before filing a qui tam lawsuit, a resigning employee may submit a “righteous indignation resignation letter”—i.e., a resignation letter alleging discrimination, injustice, fraud, mistreatment, or other wrongdoing. Oftentimes, the departing employee claims to have been morally compelled to resign, in which case a claim of constructive discharge may be made. Generally, to establish constructive discharge, an employee must prove that working conditions were so intolerable that a reasonable person would be forced to resign. In some circuits, the employee would also generally be required to prove that the employer intentionally made working conditions intolerable in order to force the employee to resign. However, the U.S. Court of Appeals for the Sixth Circuit in Smith v. LHC Group, Inc., 2018 U.S. Dist. LEXIS 5345 (March 2, 2018), recently held that an employee’s claim may proceed absent proof of an intentional forced resignation where the resignation was a reasonably foreseeable response to inappropriate working conditions. More specifically, the court stated that “[t]he jury may find that the employer’s alleged fraudulent behavior plus the employee’s moral conscience and reasonable fear of being accused of participating in the employer’s fraud is enough to justify quitting.”

Appropriate “Response” to Righteous Indignation Resignation Letters

While it is impossible to prevent all fraud claims and retaliation actions, a health care employer should carefully consider the content of righteous indignation resignation letters, as well as the content of exit interviews.[3] Of course, health care employers should ensure that they have a robust compliance program—robust not only “on paper” but also in actual day-to-day operation—that includes information from multiple sources. The compliance program should include a formal complaint process as well as hotlines and other anonymous reporting mechanisms. This complaint process should include reporting pathways both up the chain of command as well as to people outside an employee’s immediate department. One possible avenue is to advise employees that they can report concerns directly to the human resource (“HR”) department or the compliance department. In addition to having a formal complaint process, health care employers must thoroughly investigate complaints received so that employees trust the process. This investigation should include matters that an employer first learns about as part of the exit interview process or through a post-resignation letter.

During employment, the complaint process should also include a mechanism for following up directly with the employee who submitted a complaint. This can help ensure that employees know that their concerns are being taken seriously and can also serve as a mechanism to educate employees when their concerns are misplaced. By addressing an employee’s incorrect understanding of the law, employers can help prevent an employee from feeling like he or she has a “moral obligation,” or is being forced, to resign. There may be different considerations in responding to a post-resignation letter, and, in some instances, reaching out to a terminated employee may not be wise. However, the content of such letters must be taken as seriously as one would take them during the course of employment.

As is the case with a comprehensive exit interview, a post-resignation letter could yield helpful information to the employer in identifying compliance issues and might also be one last opportunity to convince an employee that his or her opinions are heard and valued. This could prevent the employee from feeling compelled to file a whistleblower lawsuit. The post-resignation letter also presents an opportunity for employers to examine on a contemporaneous basis whether the employee made the same complaints during employment.

No magic solution exists for preventing all righteous indignation resignation letters or claims of unlawful retaliation. However, a health care employer can make sure that its employees have an opportunity for their voices to be heard in other ways so they do not feel that a scathing resignation letter is their only chance to be taken seriously by the employer.


3. Buyer Beware: Hidden Employment Due Diligence Issues in Health Care Transactions

By Denise Merna Dadika

Health care mergers and acquisitions have been on a tear in recent years and are proceeding at a rapid pace in 2018 with transactions reaching a record $156 billion in the first quarter of 2018. As the deal volume is expected to continue throughout 2018, buyers should make certain to consider all the legal implications of the transaction early in the planning process. In the health care industry, the due diligence process typically focuses on regulatory compliance and risks. Buyers, however, should not overlook the potential employment implications of a proposed transaction.

The employment issues that should be reviewed during the due diligence process include individual employment agreement issues; non-compete and trade secret agreements; executive compensation plans; immigration compliance; occupational health and safety risks; recent and pending discrimination, harassment, and/or retaliation claims; and federal and state facility closing and mass layoff laws. In addition, buyers should also concentrate on uncovering independent contractor misclassification, employee misclassification under wage and hour laws, and pay inequities given the increased focus and risks associated with these issues.

Misclassification of Independent Contractors

The misclassification of independent contractors pose significant risks for buyers and should be a priority during due diligence. While the Trump administration has abandoned the aggressive enforcement initiatives established by the Obama administration, the U.S. Department of Labor and the Internal Revenue Service remain active in investigating and auditing companies regarding the use of independent contractors. In addition, an increasing number of state task forces have been formed, most recently in New Jersey, to combat worker misclassification.

Potential liability for independent contract misclassification can be quite costly and includes unpaid overtime or other wage-based claims (e.g., minimum wage as well as meal and rest breaks), federal and state payroll tax liability for unpaid employer and employee withholdings and payments and penalties for non-payment, liability for unemployment insurance tax premiums and penalties for non-payment, liability for workers’ compensation and disability premiums and penalties for non-payment, and liability for benefits that should have been provided to the misclassified employee.

Given the increased scrutiny, the steady stream of class action lawsuits alleging misclassification, and the potential liability for independent contractor misclassification, buyers should focus on understanding whether there are misclassification concerns during the due diligence process. To evaluate the potential risk, a buyer initially should request and review the following: a contractor census, which should include a list of the contractors for the current and prior three years and a description of the services provided; pending and past misclassification claims; and/or any findings of contractor misclassification issued by federal or state agencies. An additional investigation may be needed depending on the potential concerns discovered during the initial review of documents.

Misclassification of Employees

Misclassifying employees as exempt also can lead to significant exposure for a buyer in a transaction. Exempt employees are paid on a salary basis for any and all hours worked in a week, whereas non-exempt employees must be paid the minimum wage for all hours worked and overtime pay for all hours worked in excess of 40 hours in a workweek. The rules relating to the exemption issues are complex, which leads to the misclassification of employees. Employers are regularly hit with large fines and overtime damages in class action litigation and Department of Labor investigations for misclassifying non-exempt workers as exempt.

Under federal law, employees misclassified as exempt may be entitled to back overtime wages and an amount equal to the unpaid back overtime wages in liquidated damages for a two- or three-year period depending on whether the violation is found to be “willful,” as well as the employee’s reasonable attorney’s fees. State laws may afford greater remedies; for example, New York law provides back overtime wages for up to a six-year period.

To understand the potential exposure for employee misclassification claims, a buyer should request and review the following during the due diligence process: the employee census, which should include each employee’s job title, department, salary or hourly wage, and classification as exempt or non-exempt; organizational charts; job descriptions; internal and external classification audits; and any complaints (or demand letters) alleging misclassification.

Pay Equity Issues

Another area of increased focus by the states is equal pay. As we previously reported, there were approximately 100 bills relating to equal pay introduced in the state legislatures in 2017 in more than 40 jurisdictions. The activity has continued in 2018, with Washington State and New Jersey passing legislation to bolster pay equity requirements.

Equal pay laws prohibit employees from paying lower wages to employees of one gender (some state laws also prohibit unequal pay on the basis of race, national origin, or any protected class) than to employees of the other for performing equal work. The requirements vary among the state laws, with some requiring equal pay for “equal” work, and others requiring equal pay for “comparable” or “substantially similar” work.

An employer that fails to provide equal pay under federal law may be liable for back wages for a minimum of a two- or three-year period depending on whether the violation is found to be “willful.” The back pay periods vary under state laws, with New Jersey providing the largest period—six years. Employers may also be liable for liquidated damages doubling or tripling the back pay award.

To assess the potential risk of unequal pay practices during the due diligence process, a buyer should request and review the following: the employee census, which should include each employee’s job title, department, salary history, gender, and race; job descriptions; compensation policies; internal pay equity audits; and any complaints (or demand letters) alleging unequal pay practices.

In light of these potential employment law liabilities, buyers should retain employment counsel when a health care transaction is contemplated in order to uncover these and other employment law risks. By doing so, a buyer will have an opportunity to assess its potential liabilities and obligations and determine whether to withdraw from the transaction, modify the purchase price, and/or negotiate language in the purchase agreement to minimize its exposure.


4. Restrictive Covenants in the Health Care Industry

By Kevin J. Ryan

Restrictive covenants are common in the health care industry, particularly when there is a health care acquisition or merger. However, it is important to understand that the enforcement of restrictive covenants may depend on the entity that is trying to enforce them and applicable state law.

Health care transactions often include a host of restrictive covenants, which may be contained in purchase agreements, services agreements, management agreements, and employments agreements. The most common restrictive covenants are covenants not to solicit, covenants to maintain confidentiality, and covenants not to compete. These covenants are not always treated equally, and they may be enforced for some parties, but not others, and they may also be enforced in some agreements, but not others.

Restrictive covenants are subject to state laws, so each state may handle them differently. For example, covenants to maintain confidentiality may be enforced in all states with few limitations. Covenants not to solicit employees and customers of the existing company may have some restrictions depending on whether a solicited employee is a current or recently departed employee or whether the solicited customer is a current client or a prospective client. In some states, covenants not to compete are expressly prohibited in most employment circumstances, e.g., California. But California will allow enforcement of a covenant not to compete that is included in the sale of a business; so, a California health care provider selling his or her business may have a restrictive covenant upheld. There are other states that allow covenants not to compete in many industries but prohibit them for health care providers. Finally, many states allow covenants not to compete but limit their scope to a reasonable time and geographic restriction.

Enforcement of restrictive covenants may also depend on the party trying to enforce them. This is particularly true in the enforcement of covenants not to compete. There are many states that have a prohibition on a general business corporation practicing a profession, such as medicine, dentistry, optometry, or veterinary. Some of these same states have exemptions for hospital, health maintenance organizations, or licensed health care entities to employ the professional. These distinctions may allow a hospital to enforce a covenant not to compete against a physician group, while denying a private equity company from enforcing that same covenant against a physician group. The rationale for this distinction is that a private equity owner can’t own a professional corporation, so the private equity firm can’t restrict a professional from practicing a profession that the private entity can’t practice. As a result, private equity firms often form management companies that manage the professional entity to be able to enforce a covenant not to compete that restricts the professional from engaging in management services that are competitive with the private equity-owned firm. In addition, the private equity-owned entity may also be able to prevent the provider from contracting with any other management company that provides similar services to what the private equity-owned firm provides.

Because of these distinctions on who can enforce restrictive covenants and which restrictive covenants can be enforced in a given state, it is essential that entities that wish to purchase a health care company seek counsel with experience in these matters.


5. What Health Care Employers Need to Know About GDPR’s Privacy and Security Requirements

By Alaap B. Shah and Daniel Kim

On May 25, 2018, the General Data Protection Regulation (“GDPR”) went into effect, which replaces the Data Protection Directive 95/46/EC and imposes new data privacy and security requirements on entities in the European Union (“EU”) and abroad.

The regulations seek to unify data protection laws across Europe and strengthen privacy protection for individuals (called “data subjects”). The new law’s reach is extensive and may impact any entity that processes data of EU residents (not just citizens). For example, the GDPR could apply to a non-EU health care employer that hires EU residents, either as employees or independent contractors. Likewise, entities that provide health care goods or services to EU residents while processing their personal data (i.e., any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier) may also be subject to the GDPR. As the health care industry continues to globalize, entities that intend to expand internationally should expect to be subject to the new law.

The GDPR also expands the rights and protections of data subjects. Specifically, data subjects have certain rights regarding if, how, when, and why their personal data may be used. The GDPR also imposes data security requirements. Noncompliance can result in stiff penalties of up to €20 million or 4 percent of global revenue. Therefore, health care employers should quickly determine to what extent the GDPR affects them and what they should do to comply.

Individual Rights, Transparency, and Consent for Processing Sensitive Personal Data

The GDPR imposes new requirements to document and transparently communicate the legitimate grounds for collecting and processing personal data. GDPR may also require health care entities to obtain valid consent from data subjects in some cases. For example, the GDPR requires “explicit” consent to process “special categories of personal data” (e.g., employees’ health information). Accordingly, it may become more difficult to obtain certain HR data, depending on whether explicit consent is required.

With that said, the GDPR allows entities to rely on one or more exemptions for processing special categories of personal data. For example, processing special categories of personal data to carry out obligations under employment law may be exempted from the consent requirement. Yet, entities availing themselves of such exemptions should adequately document their lawful bases for processing to put themselves in a defensible compliance position.

GDPR also gives data subjects various rights related to access, data portability, and rectification and deletion of their personal data. Entities should evaluate what operational and technical mechanisms are in place to afford such rights to data subjects.

Impact on Background Screening

It is likely that the GDPR will affect how employers perform background screening. The transparency requirements may require entities to provide candidates with information about the screening process, including information about the processing of their personal data. The new law will presume that consent to process data for background screening will not be valid for subsequent purposes unless a data subject has provided explicit consent for such purposes. Furthermore, employers may need to suspend background screening if data subjects exercise their rights to restrict the processing. Accordingly, employers will need to determine how best to navigate these new requirements in conjunction with continuing to fulfill background screening in compliance with the Fair Credit Reporting Act and other applicable laws.

Cybersecurity Requirements

The GDPR also establishes various data security requirements. First, entities must appoint a data protection officer. Second, the GDPR requires implementing “a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing” of personal data. Third, to the extent a health care employer outsources data processing, such third-party data processors must be contractually bound to have data security controls in place. Fourth, the GDPR establishes requirements for data breach response.

Practical Steps to Comply with the GDPR

Health care employers subject to the GDPR should immediately take the following steps:

  1. Appoint a data protection officer.
  1. Develop a personal data map that includes repositories and data flows.
  1. Conduct a gap analysis of policies and procedures.
  1. Review and update employee notices regarding collecting and processing personal data.
  1. Evaluate background screening processes.
  1. Implement GDPR-compliant contractual language.
  1. Adopt and leverage a risk-based approach to data security, including conducting a risk analysis.

During the early stages of the GDPR’s rollout, it remains unclear how aggressively the new law will be enforced. Thus, it is imperative that health care entities work on compliance in the short term to put themselves in a defensible position in the long term. The consequences of noncompliance with the GDPR are severe and should serve as incentive enough for health care employers to proactively work towards compliance.

ENDNOTES

[1] 31 U.S.C. § 3729 et seq. If the qui tam lawsuit is successful, whistleblowers can receive a reward of 15–30 percent of the government’s recovery.

[2] 31 U.S.C. § 3730. Relief may include the reinstatement of an employee’s position before the discrimination, twice the amount of back pay, interest on the back pay, and compensation for special damages as a result of the discrimination, including attorneys’ fees.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green
Contact
more
less

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.