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California’s latest attempt to restrict employment arbitration was foiled by the Ninth Circuit Court of Appeals last Wednesday. On February 15, 2023, a three-judge panel decided that AB 51 (which prohibits employers from “forcing” job applicants or employees to enter into pre-dispute employment arbitration agreements covering certain discrimination and retaliation claims) is preempted by the Federal Arbitration Act (FAA). In doing so, the Ninth Circuit reversed its prior decision in the same case, issued by the same three-judge panel, which partially upheld AB 51 in 2021. While we expect the California Attorney General to challenge the Ninth Circuit’s February 15 decision, California employers can breathe a sigh of relief for now knowing it’s still lawful for most to continue to require arbitration agreements.…

Continue Reading California Employers Still Can Require Arbitration. For Now.

California employers will need to review and confirm their employees’ exempt status and non-exempt hourly wage rates before the start of the new year because of an unusual change in the statewide minimum wage applicable to all California employees.

On July 27, 2022, the California Director of the Finance Department sent a letter to Governor…

Many thanks to our data privacy colleague, Helena Engfeldt, for co-authoring this article.

Many organizations are proactively advancing diversity and inclusion goals globally to include a focus on recruitment and employee-directed initiatives. These efforts are consistent with organizational values and business goals, even in cases where diversity data collection may have the…

Many thanks to our data privacy colleagues for co-authoring this post: Lothar Determann, Helena Engfeldt and Jonathan Tam.

2022 is looking to be an unprecedented year for California companies’ privacy law obligations. The California Privacy Rights Act (CPRA) takes effect on January 1, 2023, with a twelve-month look-back that also applies to the personal data of employees and business contacts. The new California Privacy Protection Agency is preparing regulations that will sit on top of existing rules from the California Attorney General. Meanwhile, the California Legislature is enacting privacy laws even though it has not repealed or streamlined any of the myriad California privacy laws that continue to apply in addition to the California Consumer Privacy Act (CCPA).

On March 1, we held a webinar focused on the employment law implications stemming from these significant changes and covering a handful of critical hot topics (e.g., how to process vaccination information, the treatment of employees of PEOs, and EORs). If you missed it, here are the major highlights you should know!

Employment Takeaways

Preparing for CCPA / CPRA Compliance
  • CPRA amendments to CCPA take effect January 1, 2023; this ends the transitional exemptions for “HR” and “B2B contact information” and includes a 12-month look-back to January 1, 2022.
  • “At collection notices” have been required since January 1, 2020, with increased disclosure requirements since December 16, 2020. For more detail, click here.
  • Businesses must declare on January 1, 2023, in privacy policies whether they have been selling or sharing personal information of employees and B2B contacts in the preceding 12 months and, if yes, offer opt-out mechanisms and alternatives without discrimination.
  • Businesses must update service provider agreements, including with recruiters and IT, cloud, payroll, benefits, and other providers.
  • Businesses must offer broad access, deletion, rectification, portability and other rights to California employees and B2B contacts, and prepare for what may be the end of confidentiality in the employment area; employers should conduct training, and implement robust data governance policies (incl. deletion and discovery).
Data Access / Deletion Requests from Employees
  • Under existing employment law, California employees (not contractors) have the right to inspect and receive a copy of the personnel files and records that relate to their performance or any grievance concerning them within 30 days of their written request. The existing right to inspect does not extend to records relating to the investigation of a possible crime, letters of reference, or various ratings or reports.
  • By contrast, the new “right to know” under the CPRA/CCPA goes further. It encompasses two distinct rights: (i) the right to a disclosure explaining how the employer collects and handles the individual’s personal information; and (ii) the right to copies of “specific pieces of personal information.” The “right to know” applies to California consumers, which goes beyond employees (i.e., including contractors). In theory, it could extend the scope of the “right to know” from simply the personnel file to include, for example, informal communications about the employee, investigations, etc. Employers must generally comply with such requests within 45 days.
  • The “right to know,” however, is not absolute, and employers can refuse if the request is manifestly unfounded or excessive (e.g., if the purpose is to harass) and does not cover privileged information (e.g., communications with in-house and external counsel).
  • The CPRA/CCPA also introduce a new right to “data deletion.” This right is not absolute either. An exception should apply for most categories of personal information reasonably necessary to managing or administering current or past employment or contract work relationship.
  • Finally, the CPRA/CCPA gives California residents other rights including the right to limit the processing of sensitive information. There are exceptions to the right to limit the processing of sensitive information, but none of the statutory exceptions apply squarely to HR data.

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Continue Reading A Quick Primer On New Privacy Law Obligations For California Employers

Special thanks to Lothar Determann, Helena Engfeldt, Jonathan Tam, Andrea Tovar, and Vivian Tse.

2022 is looking to be an unprecedented year for California companies’ privacy law obligations. The California Privacy Rights Act (CPRA) takes effect on January 1, 2023 with a twelve-month look-back that also applies to the personal…

Pressure is mounting on U.S. and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?

Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the U.S. Treasury Department released a policy statement directing state and local governments to use funds from the $350 billion American Rescue Plan to incentivize vaccines by offering $100 to individuals who get vaccinated.

Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.

Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.

So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.

Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them.  For illustrative purposes, we discuss California law in the framework below.

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Continue Reading Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers

We are increasingly seeing governments around the globe pass more progressive and compassionate legislation around families and pregnant women. For instance, in the US, there’s a new bill, known as the Pregnant Workers Fairness Act, currently in the House and commentators believe it just might pass. The bill would clarify and strengthen the Pregnancy Discrimination Act, which was passed more than 40 years ago as an amendment to the 1964 Civil Rights Act, and provide women who face pregnancy discrimination a clear channel for recourse.

Along these lines, this week New Zealand will become one of the first few countries providing paid leave for miscarriages.[1] The Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2) (view bill HERE) was just granted royal assent and the new law is effective March 31. The law extends current paid bereavement leave law for employees in New Zealand to miscarriages and stillbirths.…

Continue Reading New Zealand Paid Bereavement Leave for Miscarriage Effective March 31, 2021

In part one of this article, we discussed when and how multinational companies can use a noncompetition agreement on their highly skilled employees to protect their confidential information and other intellectual property. In particular, we described five key factors to consider before rolling out noncompete covenants around the world.

In part two, we analyze how…

As multinational companies compete for highly skilled employees around the world, they are often confronted with a deceptively simple question: Do they impose a noncompetition agreement on their employees?

This article is part one of a two-part article addressing how multinational companies can use a noncompetition agreement on their highly skilled employees to protect their…

In June, a federal district court in New York ruled that the Federal Arbitration Act (FAA) preempts a recent state law prohibiting mandatory arbitration agreements in sexual harassment cases. Latif v. Morgan Stanley & Co. LLC  marks the first time that a federal court has ruled on this issue.
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Continue Reading NY Ban On Mandatory Arbitration Of Sexual Harassment Claims Overturned