Canadian HR Reporter

CANADIAN HR REPORTER November 2, 2015 INSIGHT 19 Global data privacy suffers major blow European court rules Safe Harbor structure between U.S., Europe invalid The European Court of Justice in Lux- embourgh recently ruled that the "Safe Harbor" structure between the United States and the European Union (EU) is invalid. Safe Harbor was the means by which U.S.-based firms could get a blanket approval regarding the movement of personal data, including human resources data, between the U.S. and EU member countries. e decision is a direct result of the considerable suspicion of the global community regarding the extent of U.S. government surveil- lance of personal information (via the Patriot Act and others). The U.S.'s National Security Agency (NSA) has taken the posi- tion that non-U.S. citizens have no rights regarding an expectation of privacy. Further, United States law re- quires that U.S.-based organiza- tions comply with surveillance orders — so the concept of data privacy becomes almost moot. is concern with the U.S. gov- ernment's privacy intrusions also exists within the U.S. One major company, for example, is refusing to consider cloud or software ser- vice software solutions (for human resources and other functions), not because it doesn't see the val- ue of the technology, but because only by having its own data on its own internal servers can it be sure to know when the U.S. govern- ment is looking at its data. If that data was held for the company by a third party prohib- ited from informing the company of the government's interest, it would be completely unaware of the data leakage. Unlike the United States, which has no federal privacy law (a source of serious concern to many organizations), Canada's Personal Information Protection and Elec- tronic Documents Act (PIPEDA) has been considered adequate to protect personal privacy and an agreement similar to Safe Harbor has been unnecessary. But the Canadian Communi- cations Security Establishment (CSE) — the lesser-known of Canada's two spy agencies, which focuses on electronic surveillance — may give rise to concern as well. e Canadian Anti-Terrorism Act gave CSE expanded use of electronic surveillance, authoriz- ing it to intercept foreign com- munications that begin or end domestically, as long as one party is outside Canada. CSE shares information with intelligence agencies in the so- called "Five Eyes" group of coun- tries — namely the U.S., United Kingdom, Australia, New Zealand and Canada. As a result of the Safe Harbor decision, each European coun- try is now free to apply its own regulations for organizations that move personal data to the United States, including the right to sus- pend personal data transfer to the U.S., possibly forcing organiza- tions to host personal data exclu- sively within Europe. is reflects the chaotic situa- tion that existed prior to the estab- lishment of Safe Harbor in 2000. At the very least, there will be enormous uncertainty surround- ing global data management. Many organizations will try to adopt model clauses that reflect binding corporate rules of data management, but the immediate fear is the time and effort that will be required to obtain approvals by every European Union coun- try where a company wishes to do business. Alternatively, the United States could negotiate a revised agree- ment that finds acceptance in the EU. It has been suggested that indi- vidual consent for data transfers may survive this decision, but that option is the most administrative- ly burdensome, in part because it can be revocable and because ad- equate tools to manage that pro- cess are in very short supply. Supporters of the Safe Harbor concept see this as an extremely significant decision that will make the global management of organi- zations very difficult and far more costly and time-consuming. And it strikes a major blow against organizations that try to consolidate data into an effective and efficient single database (look out, big data). Safe Harbor opponents see this as an opportunity for the world to establish a stronger and more ef- fective data privacy model focus- ing on the rights of the individual. Time will tell which view is more accurate. Ian Turnbull is managing director of Laird & Greer Management Group in Toronto, specializing in human re- sources, payroll and time system selec- tion and management. He is also the author of the HR Manager's Guide to Managing Information Systems (Car- swell 2014). The author gratefully acknowledges the early reporting of Jon Neiditz of Kilpatrick Townsend & Stockton of Atlanta, Ga. Ian Turnbull Guest Commentary "This commentary reminds me of some of the experiences I have had around succession planning. In particular, I have come to the understanding that succession planning (or the response to succes- sion) has as much to do with the position and the incumbent as it does with the context, stakeholders and the surrounding support team of the predecessor. "On more than one occasion, I have seen a successor come into a position, only to tear things up, make staffing changes and rebuild an infrastructure to meet their individual liking. "Regardless of the antecedents, I am not sure that there is an ideal situation for leadership succession that does not necessitate the substantial change that it is meant to mitigate. It makes me wonder what wisdom can be gleaned from the 85 per cent of businesses that do not have succession well in hand." Richard, commenting on Ian Hendry's blog "Succession sucks" Join the conversation. Comment on any blog on www.hrreporter.com. READER COMMENTS It strikes a major blow against organizations that try to consolidate data into an effective and efficient single database (look out, big data). Paying an employee for a single daytrip Is travel to and from a business meeting in another city considered payable? Question: If an employee is flying to another city for a meeting and coming back on the same day, does the travel time count as work time? at is, from leaving home early in the morning, waiting for the flight, taking the flight, taxiing to the site, taking the meeting and then coming back again — is that whole day "deemed work?" Answer: According to regulation 285/01 of the Ontario Employ- ment Standards Act, 2000, (ESA) recognized work time is when an employee is either actually per- forming work for the employer or not performing work but none- theless required to stay at the workplace. The three exceptions to this rule are eating periods, time in be- tween shifts to sleep and when the employee is conducting her own private affairs over the course of the normal workday. Two forms of travel time have been distinguished in the ESA as well as in court and labour arbi- tration decisions. The time an employee spends travelling to and from her normal work loca- tion to home each day is classified as "commuting time" and does not generally count as recognized work time. Conversely, the second catego- ry of travel time — travel directed by the employer or in the course of employment — is considered to be time worked. In other words, once an em- ployee arrives at her workplace, any subsequent travel she con- ducts for her job up to the point where she leaves for home at the end of the day will equate to work time. Out-of-town meetings are a unique form of the second cat- egory. A day dedicated to an out-of-town meeting lacks the normal commute time and con- crete "workplace" that aids in the distinction. Cases have instead held the en- tire day — including journeying to the airport, waiting and returning — to constitute one continuous work period until the employee has arrived back home. Professional development Professional development con- ferences may seem less related to work than a client meeting, yet they too count as work time. The courts have reasoned that the travel is undertaken for the employer's benefit. In other words, did the em- ployer direct the travel? Was the employee attending the confer- ence at the request of supervisors or as part of an ongoing require- ment to build professional devel- opment hours? Did the employer make the travel arrangements and encourage attendance at a profes- sional conference? Meal breaks, sleeping periods and rest times, however, will re- main separate from work time, even when the travel time itself can be counted. Thus, an employee's journey to a client meeting, the meeting itself and the return time would be counted as work since it is at the behest of the employer; how- ever, if the employee chooses to stop for dinner or lunch along the way, that would be treated as a normal, non-compensable break unless otherwise stipulated in an employment contract. Contract, custom, practice e Ontario ESA regulation also makes note of standards estab- lished by contract, custom or practice. erefore, it will be helpful for you to develop a clear policy with regards to professional develop- ment and whether overtime will be applicable on days that include travel. is is particularly useful for occupations with high levels of mobility, such as sales, delivery and transport. In the absence of specific workplace policies, adjudicators have made decisions on overtime and pay entitlements on the basis of employer practices of signing off on time that includes travel to various work locations, for example. Set the bar early on with em- ployees to avoid confusion. Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business. He can be reached at srudner@rudnermacdon- ald.com. Stuart gratefully acknowl- edges the assistance of Richa Sandill, law student, in the preparation of this article. Stuart Rudner Toughest HR Question Meal breaks, sleeping periods and rest times will remain separate from work time, even when the travel time itself can be counted.

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