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What U.S. companies should consider following the bombshell EU Privacy Shield ruling



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If you’re an American company with European users or customers, and you transfer their personal data to the U.S. for company use, you need to be aware of what just went down at the EU’s top court today.

That’s because the Court of Justice (CJEU) just made a huge ruling. The upshot: it’s possible you will no longer be able to serve people in the EU—if not now, then in the not-too-distant future.

You can read our full story on that ruling separately, but here’s a quick run through the implications. And again, those implications could be immediate, depending on your circumstances.

Privacy Shield

U.S. companies using Europeans’ personal data need some sort of legal justification for doing so. That’s because the U.S. lacks an EU-strength federal privacy law (or indeed any comprehensive federal privacy law at all.)

By far the easiest way to keep things legal was to sign up to the so-called Privacy Shield register—essentially, self-certifying that the company will stick to EU rules. This register was created under a trans-Atlantic deal of the same name, struck between the U.S. and EU in 2016.

That deal is now dead. The CJEU on Thursday cancelled it with immediate effect, basically for two reasons: it didn’t stop U.S. intelligence from poking around companies’ data even if they were on the list; and there was no effective way for EU citizens to file a complaint about this in the U.S.

The U.S. Department of Commerce reacted by indicating it would be, in a sense, business as usual. In a statement expressing disappointment with the ruling, the department said it would “continue to administer the Privacy Shield program, including processing submissions for self-certification and re-certification to the Privacy Shield Frameworks and maintaining the Privacy Shield List.”

“Today’s decision does not relieve participating organizations of their Privacy Shield obligations,” it added.

The Europeans beg to differ. To paraphrase Monty Python’s Dead Parrot sketch, Privacy Shield has passed on; it has kicked the bucket; it has shuffled off its mortal coil, run down the curtain and joined the bleeding choir invisible. It is an ex-agreement.

So you can continue to abide by the register’s obligations—essentially, respecting EU privacy law as best you can—but that no longer means your EU-U.S. data transfers are legal in European eyes. Which was the whole point of the register to start with.

(There may still be a legal reason to keep those promises over in the U.S., though. “Companies that have made privacy promises under Privacy Shield could be subject to enforcement for deceptive practices if they do not live up to those privacy promises,” said Peter Swire, a senior counsel at law firm Alston & Bird.)

Eline Chivot, senior policy analyst at the Center for Data Innovation, described the impact well in a statement Thursday: “The decision delivers a severe blow to the operations of over 5,000 European and American companies who use the EU-U.S. Privacy Shield as the legal basis for transatlantic data transfers. It will immediately upend, and in many cases even halt, data transfers between the EU and the United States, leaving many businesses with no suitable alternative.”

Standard contractual clauses

But what if Privacy Shield isn’t your only legal basis for those transfers?

Some U.S. companies such as Facebook (the firm involved in this particular case) and Microsoft have for years also been relying on a mechanism called “standard contractual clauses,” or SCCs. These are, as the name suggests, oven-ready clauses that the European Commission wrote, again outlining a range of rights and responsibilities in line with the EU’s strict GDPR privacy law.

The court did not strike down SCCs, though it had the option to do so.

It said SCCs were fine in general because an EU privacy regulator can still invalidate them on a case-by-case basis if a company is breaking the clauses’ terms or is unable to stick to them—because, say, it can’t stop the intelligence services back home from conducting mass surveillance on the data.

This is where the striking-down of the Privacy Shield becomes a problem for Facebook and any other big American tech company relying on SCCs to send Europeans’ data over to the U.S.

Although the Snowden revelations of 2013 led to some limited reforms in U.S. surveillance law, Section 702 of the Foreign Intelligence Surveillance Act (FISA) still allows for the mass collection of non-Americans’ personal data from Big Tech firms.

Some in the U.S. argue that surveillance only starts when the agencies actually look at the data—which is a more restricted activity. But the Europeans see surveillance as starting at the point of collection. So in European eyes, the U.S. regularly conducts mass surveillance on Europeans’ data—and there’s nothing the U.S. companies handling that data can do about it.

That’s serious enough to have scuppered Privacy Shield (and its predecessor, Safe Harbor) so it is difficult to see how the SCCs used by a company like Facebook can survive if challenged before an EU privacy authority.

“Although the system of standard contractual clauses will remain in principle and the standard contracts concluded will initially remain in force, they will have to be reviewed and, if necessary, suspended by the data protection authorities in the light of the [CJEU] ruling,” wrote former German data protection chief Peter Schaar in a blog post.

So what now?

Of course, not every American company serving Europeans is a Facebook or Google. If you don’t have U.S. agencies scrutinizing your data under Section 702 of FISA—if, for example, you’re an airline or a retailer—then SCCs could still work for you.

The big difference now is that you’ll first have to convince EU privacy regulators that European customers’ data isn’t subject to surveillance in the U.S.

“Data exporters and importers using the standard contract clauses must verify the level of protection in the [country where the data is going] first.  The importer also has a duty to report any issues to the exporter,” said Tony Vitale, a partner at JMW Solicitors, in a statement.

And if your processing of Europeans’ personal data is “necessary” for the fulfillment of your user contracts—if you’re an email provider handling emails, for example—then that’s also automatically kosher under EU law.

“The court explicitly highlighted that the invalidation of the Privacy Shield will not create a ‘legal vacuum’ as crucially necessary data flows can be still undertaken,” said Max Schrems, the litigant who brought the case, said in a statement after the ruling came through.

But an awful lot of U.S. companies, big and small, are still likely to be flailing around now, looking for a legal solution to a problem that abruptly landed in their laps on Thursday morning.

The only reliable, long-term solution would be changes in U.S. privacy and surveillance law. Expect to see Silicon Valley’s lobbying efforts step up on that front very soon.

More must-read international coverage from Fortune:

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“Decisions made under policies that are subsequently changed & published can now be appealed if the account at issue is a driver of that change,” Twitter said on Friday. “We believe this is fair and appropriate.”

The New York Post took to the social network shortly after the announcement, tweeting a cover image with a headline that read “Free Bird!

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How WFH has affected employees with disabilities



Welcome to The Broadside, a careers newsletter. Here’s what to expect in this issue.

Broadside writer Kristine Gill talks to employees with disabilities about how working from home has leveled the playing field yet exacerbated certain challenges. Then, scroll on for job opportunities from Bank of America, Disney, Facebook and more.

This is the last issue of The Broadside.

Thank you for reading along. Never fear—if you’re a subscriber to The Broadsheet, our daily newsletter for and about the world’s most powerful women, you will continue to receive that in your inbox. Otherwise, subscribe to The Broadsheet here.

For many employees with illnesses and disabilities, remote work has been an accommodation they’ve sought and been declined. But when the world transitioned to virtual work in the blink of an eye in March, employers and employees alike saw how the arrangement could work and benefit all parties.

This month, I spoke to employers and employees who say working from home has leveled the playing field in some surprising ways. As the world tiptoes toward normalcy, I asked what they want to do after this work-from-home experiment ends. 

“The culture of remote work is here to stay forever, which is great for the disabilities community and women in general,” says Jessica Tuman, vice president of Voya Cares at Voya Financial.


Mavis Bryant had worked for the Children’s Home Society nonprofit for several years when she began developing health problems. The worst came about two years after a car crash, when doctors realized her heart was only working at 15% capacity. 

“I didn’t even know I had heart problems,” said the 50-year-old, who has since been diagnosed with congestive heart failure, kidney disease and diabetes.

Bryant felt lucky. Her employer allowed her to take time off to get her health under control. Then last year, they allowed her to begin working part-time, including several days a week from home. 

“It was a blessing,” she said. “I get shortness of breath. There’s just a lot of moving around when you’re in the office to meet with families who come in to visit.”

So when the rest of her workplace went remote in March, Bryant was already in a position to succeed. Now, her clients are conducting meetings and visits virtually and Bryant is not at a disadvantage as she works from her living room on her laptop. 

“It’s been really good to work from home,” Bryant says.

Bryant credits her employer with making the switch simple. As a nonprofit with a mission aimed at helping families, the company was well-poised to help one of its own. Her advice for anyone coming to work with a health condition: Communicate with your employer, ask for a new part-time or work from home arrangement, and to try to take things slowly. 

Lauren Applebaum had been working as vice president of communications for the nonprofit RespectAbility for a few years when she acquired her disability. Applebaum had a fall that resulted in Reflex Sympathetic Dystrophy, a disorder causing severe pain. She soon learned she couldn’t type for extended periods of time, lacked strength in her right arm and leg, and had trouble getting comfortable at her desk.

“Like anyone who acquires a disability, it was trial and error,” she says. “And it’s important to have an employer who can do that trial and error with you.”

In the beginning, Applebaum was attending physical therapy and multiple doctors visits and benefited from a flexible schedule.

“I was still able to continue a full-time schedule, but I may have done it on different hours—at night from home or on the weekend,” she says.

Communicating that was key as Applebaum learned what worked for her situation. Luckily, Applebaum’s workplace was not only willing to help its own employees, but it’s also their mission to help those with disabilities thrive in society.

Undo your biases.

For some employees with disabilities, the WFH option is not on the table. Tuman blames unconscious bias and the false idea that working from home means working less. 

“We’ve trained hiring managers on how to overcome these biases in the interview process,” says Tuman. Her company works to create supportive workplaces for individuals with disabilities and special needs and their caregivers. Tuman suggests bringing in an expert to train your hiring managers. Some suggest using AI to eliminate or reduce hiring bias. The Harvard Business Review suggests a method of grouping applicants by their qualifications so hiring managers focus on credentials rather than race. The American Bar Association has suggestions pertaining specifically to hiring bias for those with disabilities.

Applebaum names several factors at play when an employer feels wary about hiring someone with disabilities.

“There’s a fear that it’s going to cost money and that if an employer lets someone with a disability go for any reason, that employee will sue the company,” Applebaum says. “Of course, that’s not true. We want to be treated like any other employee with high expectations.”

Tuman encourages employers to hire within the disabilities community. 

“We have research that shows people with disabilities are more loyal in their jobs, they stay longer in their roles, and they outperform their counterparts,” she says. Last year, an American Association of People with Disabilities study of 140 companies showed that companies offering the most inclusive working environment did better than their peers.

Recognize the unforeseen benefits.

Tuman has noticed some silver linings as folks work from home. To the relief of many employees with disabilities, for instance, they don’t have to commute.

Such was the case for Bryan Bridges-Limon, who was born with a hearing impairment. As a teen, he also lost part of his leg to cancer. Switching to remote work meant more comfortable footwear for around the house, less movement around the office, and less taxing meetings. 

“On Zoom, people tend to talk one person at a time, so it’s easier for me to follow those meetings,” he says. “I can be on Zoom all day without getting tired the way I do at these in-person meetings.”

When Bridges-Limon lost his job as a digital marketing executive in April, he also found he felt more confident in job interviews conducted over video calls. He wasn’t walking into the interview room with a pronounced limp and he could more easily hear the interviewer by upping the volume on his computer. Most didn’t even notice his cochlear implant on their screen. 

“There was a lot less of that implicit bias,” he says. “It didn’t seem to play a role at all.”

In the past, he had little or no flexibility with remote work. But now, he feels more optimistic about that option going forward.

“To be honest, I would not want a permanent work-from-home situation. Part of that is because I have two kids and my husband is working from home as well,” he said. “But I would like the flexibility to work from home sometimes. I do think this will potentially carry through when all this is over.”

Doug Goist, a program manager for IT services projects at National Industries for the Blind, agrees. 

“This is bringing about a complete rethinking of new employment options that can become available for the nearly 49 million Americans with disabilities, and that would be a tremendous positive to emerge from this pandemic,” he says. 

Provide for accommodations.

“Some homes may not be as customized to meet needs to allow for setting up a good space to work, which has also created problems for many,” says Kevin Hancock, an author and CEO of Hancock Lumber.

Hancock has spasmodic dysphonia, which makes it difficult to speak. He points out that others with disabilities might find it hard to communicate remotely or have trouble adapting to sudden change. 

“I hope that disabled employees feel a newfound sense of power to brainstorm ideas and become their own leader in creating change in their workplaces,” he says.

Ron Wiener is the CEO of iMovR, which sells standing desks. The company has seen a massive uptick in sales since workers began reporting from home. Wiener believes the new popularity will bolster the idea that standing desks and ergonomic workstations are a must for all employees, and especially those with physical handicaps. 

“Way back when, most employers required a note from a chiropractor for a standing desk,” he says. “Now it’s a given.”

Wiener also believes that, as problems such as back pain, carpal tunnel syndrome, and circulatory issues increase among sedentary office workers, employers will see the benefit of heading off these preventative issues for employees.

He says employers are footing the bill in most cases.

“At most companies, the investment in ergonomic accommodation is a ‘no brainer’ when the cost of a typical workman’s comp or OSHA claim can be $15K-$30K per incident resulting from improper ergonomics. But they’re used to thinking only of offices on their own campuses as being under their liability veil,” he says. “Now with millions of workers being ordered to work from home, that liability veil, and indeed the concern for these employees’ health and productivity, has to include home offices.”

Not long after Applebaum began working from home in March, she asked for and received a standing desk for her home office. Her employer was happy to pay, and the desk has helped to support her right arm as she types. While she hadn’t anticipated needing one, Applebaum says that many employees needing accommodations are well aware of the tools they’ll require and have used them for some time.

“I’ve had a few fellows with low vision who are video editors, and one showed me the free tools she used to be able to do her job and do it well,” she says. “It’s important when you’re in a position of hiring to not let your own biases influence what you think others can do.”

Learn lessons for the future.

Mnay people, Applebaum points out, have had to avoid grocery stores where it can be difficult for them to social distance. But this past spring, a food stamps law that prevented users from ordering food online was updated, allowing them to purchase their food safely. (Applebaum’s company RespectAbility helped to push for that change.)

Tuman says changes are also being made to certain benefits packages for employees with disabilities. She encourages everyone to review their current benefits packages, Family Medical Leave Act policies, and telemedicine offerings. Many changes also apply to employees caring for or homeschooling children with disabilities.

Tuman hopes that many of these changes will be here to stay. And she hopes that employers will begin to understand that working from home is a flexible alternative for all employees.

“It really opens the doors for hiring managers to hire within the disability community. It’s just a rich source of talent that’s been overlooked,” she says. “I think it’s just eye-opening for us to see that we can all work from home and be productive.” 

Applebaum agrees. She pointed out that when a mother carrying her infant fell and died on the steps of a New York City subway last summer, the community rallied for the installation of elevators, a request many disabled commuters had repeatedly made in vain.

“This is really an example of what we call universal design. Elevators are going to work for everyone; they’re helpful for people who can’t walk up and down stairs, cyclists, or mothers with strollers,” she says. “You know, text messaging was originally designed for people who are deaf to communicate with. We need to stop thinking about these changes as accommodations and start thinking about them as universal design.”

And the sooner these changes take place, the better. Applebaum points to a study that shows nearly 23 percent of working adults would benefit from some kind of workplace accommodation and that nearly half of the adults in need of such accommodation aren’t getting it.

“It’s my hope that employees who need work-from-home accommodations will be able to request and receive it even after the pandemic is behind us,” she says.

— Kristine Gill

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