As we pass the 2.5 year mark since many of us were sent to work from home for “two or three weeks” in early 2020, a number of employers are getting closer to having formal policies to address remote work and hybrid work arrangements. One of the more enduring consequences of the pandemic for employers
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…
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 Meanwhile, the California Legislature is enacting privacy laws even though it has not repealed or streamlined any of the myriad California privacy laws that continue to apply in addition to the California Consumer Privacy Act (CCPA).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!
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.
Illinois employers have been waiting for answers on two important questions regarding the Illinois Biometric Information Privacy Act (BIPA):
- Whether the Illinois Workers’ Compensation Act (the Compensation Act) preempts BIPA statutory damages, and
- Whether BIPA claims accrue each time a person’s biometric information is scanned or transmitted without informed consent–or just the first time.
Special thanks to Guest Contributor Harry Valetk.
In early May, private sector employers in New York will face new disclosure requirements for electronic monitoring of employees. Beginning May 7, 2022, New York will join Connecticut and Delaware among the states that now require employers to provide written notice to new hires who are subject to electronic monitoring. These new disclosure requirements come after Governor Kathy Hochul signed into law amendments to Civil Rights Chapter 6, Article 5, Section 52-C*2.
Here’s what New York employers need to know now about the new law:
Who is covered under the law? All private employers with a place of business in New York regardless of size. “Employer” is defined as any individual, corporation, partnership, firm, or association with a place of business in the state (not including the state or any political subdivision of the state).
What does the law require? In practice, the law requires employers to (1) provide employees with a notice of electronic monitoring, (2) obtain proof of acknowledgement, and (3) prominently post the notice for all to see.…
Some of your job applicants and employees in California may be alarmed if you tell them you sell their personal information. But you will have to say you sell their personal information if you disclose their personal information to third parties after January 1, 2022 without including certain data processing clauses in your contracts, as required by the California Consumer Privacy Act (CCPA). So we recommend reviewing these contracts to ensure they include the prescribed clauses if you wish to avoid being a “seller” of personal information.
You should also get ready to field data access, deletion, correction, portability and other requests from your employees and other personnel in California starting January 1, 2023. This will require implementing new protocols and training up your human resources and compliance teams. We also recommend tightening up your data retention and deletion protocols to limit the amount of information you have to review when handling data subject requests.
Do you use employee monitoring software or algorithms to help you evaluate job applicants? You should ensure that your use of these and similar tools address upcoming requirements regarding automated decision-making, risk assessments and the use of sensitive personal information. Note that the CCPA also currently requires employers to issue privacy notices to their California employees pursuant to a California Privacy Rights Act (CPRA) amendment that took effect on December 16, 2020.
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 2022 Employment & Compensation Resource Navigator provides US multinational companies organized links to Baker McKenzie’s most helpful, relevant thought leadership in one brief document. Arranged…
Special thanks to guest contributor: Helena Engfeldt.
US employers want employees to return to the brick and mortar workplace but with the COVID-19 Delta variant rampaging across the US and elsewhere, many employers are requiring employees to be vaccinated before they return – and they are requiring proof of vaccination. So, what can employers…
Our Labor and Employment, Global Immigration and Mobility, and Data Privacy lawyers discuss vaccine passports — what they are, how countries are already using them domestically and for international travelers, data privacy concerns related to the use of digital health documentation, and what employers should…