With special thanks to Lothar Determann for this post.

The California Privacy Rights Act of 2020 (CPRA) introduces sweeping changes to the California Consumer Privacy Act of 2018 (CCPA), which already imposes an obligation on California employers to issue privacy notices to employees since January 1, 2020. These notices must be updated as soon as possible given the new law was certified on December 16, 2020. Most other CCPA obligations on employers remain deferred.

Background on CPRA

Key CPRA revisions include a new definition of “sensitive personal information” and detailed obligations regarding the processing of sensitive personal information for non-essential purposes; a new and counterintuitive definition of “sharing” personal information and related restrictions aimed at the digital advertising industry; new data subject rights to correct inaccurate information and opt-out of the use of automated decision-making technology; new requirements to include data protection and processing terms in contracts with data recipients and vendors; new requirements regarding what privacy notices must include and how they must be furnished to data subjects; and the establishment of a new privacy authority, the California Privacy Protection Agency. For more details, click HERE.

Statutory Notice Requirement

According to the revised Cal. Civ. Code §§1798.100(a), 1798.145(m)(3), businesses have to provide job applicants, employees and other workers with an expanded privacy notice that includes certain details not currently required under CCPA, including the categories of sensitive personal information it collects and how long it retains personal information.

1798.100. (a) A business that controls the collection of a consumer’s personal information shall, at or before the point of collection, inform consumers as to:

(1) the categories of personal information to be collected and the purposes for which the categories of personal information are collected or used and whether such information is sold or shared. A business shall not collect additional categories of personal information or use personal information collected for additional purposes that are incompatible with the disclosed purpose for which the personal information was collected, without providing the consumer with notice consistent with this section.

(2) if the business collects sensitive personal information, the categories of sensitive personal information to be collected and the purposes for which the categories of sensitive personal information are collected or used and whether such information is sold or shared. A business shall not collect additional categories of sensitive personal information or use sensitive personal information collected for additional purposes that are incompatible with the disclosed purpose for which the sensitive personal information was collected, without providing the consumer with notice consistent with this section.

(3) the length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine such period, provided that a business shall not retain a consumer’s personal information or sensitive personal information for each disclosed purpose for which the personal information was collected for longer than is reasonably necessary for that disclosed purpose.

Effective Date

Cal. Civ. Code §1798.145(m)(3) takes effect immediately pursuant to Section 31(b) of the CPRA. The changes to Cal. Civ. Code §1798.100 are delayed until January 1, 2023. Californians for Privacy, the proponents of ballot initiative 24 that launched CPRA stated at a recent conference that they intended the cross-reference in Cal. Civ. Code §1798.145(m)(3) point to the revised Cal. Civ. Code §1798.100(a), which expands notice requirements. (Read more HERE.) The currently applicable version of §1798.100(a) contains an obligation on businesses to disclose specific pieces of personal information to consumers on request; this obligation is deferred until January 1, 2023 with respect to employee data.

Avoid Harmful Side Effects

When California employers update their employee privacy notices, they have to be mindful of setting or negating privacy expectations. If employers issue privacy notices to employees and job candidates that merely list the categories of information required by CPRA, the recipients of such notices may develop limited privacy expectations that could later hinder employers in conducting investigations or deploying monitoring technologies intended to protect data security, co-workers, trade secrets and compliance objectives. (Read more HERE.)

Outlook and Practical Guidance

The California Privacy Protection Agency will be responsible for drafting and adopting regulations by July 1, 2022 specifying how certain requirements under the revised CCPA apply. Most large and medium-sized companies that do business in California will be impacted. Compliance with the European Union General Data Protection Regulation (GDPR) or other jurisdictions’ privacy or data protection laws is not sufficient to meet requirements under the revised CCPA, which are prescriptive and require companies to use counterintuitive terminology on website links and in privacy notices. For example, the revised CCPA defines “sharing personal information” to mean disclosing personal information for cross-context behavioral advertising purposes, and imposes onerous technical requirements on businesses that “share” or “sell” California residents’ personal information with other parties. Employers that inform employees that they do not “sell” their personal information or “share” it for cross-context behavioral advertising, must also urgently update all vendor agreements to back up such representations. For more details, see California Privacy Law, Fourth Edition (Digital) and Determann’s Field Guide To Data Privacy Law.

 

We identified and mapped out our most relevant blog posts, articles and video chats to serve as a quick and handy roadmap to recovery and renewal for your company.

Our 2021 Employment & Compensation Resource Navigator provides US multinational companies organized links to Baker McKenzie’s most helpful, relevant thought leadership in one brief document. Arranged alphabetically by topic, the Navigator can be saved to your desktop for quick reference when an issue arises.

The bulleted resources in the PDF are clickable links to guidance on the following topics:

  • Benefits & Compensation
  • COVID-Related Employment Litigation
  • Cost-Cutting and RIFs
  • Data Privacy & Protection
  • Diversity & Inclusion
  • FFCRA (And Other Changes to Leave Laws)
  • Health & Safety
  • Global Equity Services
  • Immigration & Employee Travel
  • Remote Work & Reimbursements
  • Reopening
  • Vaccination of the Workplace

Click here to download the Resource Navigator.

Listen to our discussion on what employers can do to keep a calm, cooperative workplace even with the stress of the current political climate. This quick chat takes into account recent political tensions that have been roiling for some time now and hit an all-time high last week when armed rioters stormed the Capitol Building in Washington, D.C., layering in fiercely different perspectives on the pandemic and the Black Lives Matter movement.

To learn more click here to access the video.

 

Discussion on how employers should notify employees, health departments and others about COVID-19 cases in the workplace. This quick chat covers who must be notified, when and how notice must be provided, medical confidentiality, and other important considerations.

To learn more click here to access the video.

Special thanks to Liliana Hernandez-Salgado for this update.

Mexico has new teleworking regulations that were published today and will come into effect tomorrow.

The main actions that employers should implement under these new regulations are:

  • Update individual employment agreements for new employees who will be working remotely.
  • Draft agreements to include teleworking obligations for existing employees who are or will be working remotely.
  • Update collective bargaining agreements or internal labor regulations.
  • Determine the payment that will be made to employees for internet and electricity expenses and analyze the impact of such payment from a social security, tax and labor standpoint.
  • Keep record of the work tools (computers, ergonomic chairs, printers, etc.) and training provided to employees.

The Labor Ministry will have eighteen months to issue a Mexican Official Standard for the health and safety measures that should be implemented under this type of work.

We are happy to assist with the implementation steps to comply with these new regulations. For more information, please read here.

Businesses engaging independent contractors have new guidance from the Department of Labor (DOL) for determining whether an individual is an employee or independent contractor, but the guidance may never take effect. On January 6, 2021, the DOL issued a final rule for determining whether an individual is an employee or independent contractor. The rule focuses on whether workers are economically dependent on another business–making them more likely to be an employee of that business, and entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA)–or are economically dependent upon themselves, making them true independent contractors.

Continue Reading DOL Announces Final Rule for FLSA Worker Classification Focused on Economic Dependence-But Its Future is Uncertain

While most employers transitioned large segments of their workforces to remote work over the course of the past year, many also questioned how to satisfy various posting requirements when their workforce is at home. Fortunately, in late December, the Department of Labor (DOL) issued guidance on how employers can use virtual means to distribute and maintain the various posters required by federal employment laws.

Background

By way of reminder, several federal laws, including the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA) require employers to post a notice of rights in a conspicuous location. Typically — and pre-pandemic — employers met the notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies. But with the increase in remote work, many employers used company email and intranets as a workaround to notify employees of their rights. Now, employers have guidance to ensure their practices are compliant.

Continue Reading DOL Guidance on Electronic Posting of Federally-Required Notices

We are exited to invite you to our  two-part Annual Illinois Employer Update on February 2, 2021 from 1:00 – 2:15 pm CST and February 4, 2021 from 3:00 – 4:15 pm CST.

In two 75-minute virtual sessions, we will forecast what is likely to have the most significant impact on Illinois employers in 2021, provide a review of recent developments from 2020 that employers should be aware of, and offer practical tips and checklists for navigating the new normal.

Our February 2 webinar will focus on Labor & Employment developments in the following areas:

  • COVID-19 and its continued impact on the workforce, including insight on vaccinations, and permanent work from home arrangements
  • Changes to expect under a Biden Administration for labor and employment
  • Inclusion and diversity considerations for 2021, including pay equity issues, diversity training, collecting demographic data, and considerations on publishing diversity metrics
  • Recent Illinois laws you’ll want to keep top-of-mind as you head into 2021

Our February 4 webinar will cover developments in both Compensation & Benefits and Global Immigration & Mobility. Among other topics, you will hear about:

  • Pandemic-related updates, including specific pandemic-related travel updates and the impact of the pandemic on compensation and benefits
  • Key changes we expect under a Biden Administration, including an expansion of H1B visas and predicted changes to the compensation and benefits landscape
  • New post-Brexit UK immigration rules effective January 2021
  • Key developments impacting global equity plans

Click here to view the webinar invitation and register. We look forward to your participation!

We are excited to invite you to our New York Employer Update on January 21, 2021 from 12:00 – 1:00 pm ET.

2020 posed unprecedented challenges for New York employers. We know that in addition to keeping your employees safe and maintaining business continuity, it has been difficult to keep track of the rapidly changing employment law landscape in New York and beyond.

We will review the top developments that impacted New York employers in 2020 and a forecast for 2021. We will provide practical tips for navigating the new normal and checklists to keep you on track. Among other topics, you will hear about:

  • COVID-19 and its continued impact on the workforce, including insight on vaccinations and permanent work from home arrangements
  • Inclusion and diversity considerations for 2021, including pay equity issues, diversity training, collecting demographic data, considerations on publishing diversity metrics, and an in-house counsel’s view of I&D
  • What to expect under a Biden Administration, including predicted changes to the employment and labor landscape; and
  • Recent New York laws you’ll want to keep top-of-mind as you head into 2021

Click here to view the webinar invitation and register. We look forward to your participation!

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

    • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Colorado, Georgia, Idaho, Indiana, New York and Washington.
    • Pennsylvania’s limited stay-at-home advisories expired January 4, 2021, and the mitigation orders that were in place as of December 11, 2020 are now back in effect.
    • Governor Cuomo in New York modified the state’s quarantine period for consistency with CDC guidelines, meaning the quarantine period for incoming travelers is now 10 days, instead of 14 days.

For more information, please contact your Baker McKenzie attorney.