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Meet the CCPA! Employers’ Most Frequently Asked Questions About the California Consumer Privacy Act (“CCPA”) — Series 1, Question 3

 

Question: Do the terms “personal data” and “personal information” mean the same thing?

Not necessarily.

HR professionals who are responsible for bringing the employer into compliance with the CCPA need to know that there is no one definition of “personal information” or “personal data” and the meaning of those terms differs depending upon the context and the type of law at issue.

Only the term “personal information” is defined within the CCPA.  As is discussed in Q-2 that term refers to any information that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”[1]  That said, the term “personal data” is used instead of the term “personal information” within the CCPA’s definition of “processing” which is defined as “any operation or set of operations that are performed on personal data . . .

Meet the CCPA! Employers’ Most Frequently Asked Questions About the California Consumer Privacy Act (“CCPA”) — Series 1, Question 2

 

Question 2: What is “personal information?”

The CCPA defines the phrase “personal information” to refer to any information that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”[1]  While at first blush the phrase “consumer” suggests that the CCPA does not apply to employees, the CCPA defines the term as including any California resident about whom a company collects information.  As a result, as the CCPA is currently written, it applies only to the information collected about California-based employees.

The CCPA provides an extensive, and yet non-exhaustive, list of information that may fall under the broad definition of “personal information.  The following are examples of information governed by the CCPA that employers are most likely to collect about their employees:

  • Real name[2]
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  • Meet the CCPA! Employers’ Most Frequently Asked Questions About the California Consumer Privacy Act (“CCPA”) — Series 1, Question 1

    In the coming weeks we will be releasing a series of FAQs examining the California Consumer Privacy Act (“CCPA”)  of particular importance to employers.  These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. By way of background, employers with operations in California should be aware of the California Consumer Privacy Act (“CCPA”), a new privacy law that applies to data collected about California-based employees.   Because the CCPA refers to “consumers” many HR professionals don’t realize that the Act, as currently drafted, applies to data collected about California-based employees.  See our recent blog summarizing the CCPA for employers: [https://bclpatwork.com/meet-the-ccpa-new-privacy-rules-for-california-employees/] The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now.  For US employers who have not had

    EEOC Proposes September 30, 2019 Deadline for Employers to Submit Pay Data

    In court documents filed on April 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may be required to submit pay data to the agency by September 30, 2019.

    The filing was made after Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC to describe when and how it will comply with the Court’s March 4th Order lifting the White House’s Office of Management and Budget’s August 2017 stay on the EEOC’s collection of pay data.

    Pay data has received much attention from employers and advocates alike since the Court’s March 4th Order, but the EEOC has largely remained silent until this recent filing.  For example, on March 18, 2019, when the EEOC opened its online portal for filing EEO-1 reports for 2018 (which are due by May 31, 2019), the portal did not include any request for pay data. 

    Unconscious Bias in the Workplace

    April 11, 2019

    Categories

    In 2019, discrimination is rarely overt or deliberate.  As a society we have come a long way from the ‘No Blacks, No Dogs, No Irish’ signs of decades past.  But conscious intent is not necessary for unlawful discrimination to occur.  We all have unconscious biases based on stereotypes and prejudices.  We may not always realise our biases, but we do need to be aware that biases related to protected characteristics such as age, sex and gender can give rise to unlawful treatment.

    In the UK, under the Equality Act 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  In a discrimination claim, it falls to the Tribunal to consider the reason why the claimant was treated less favourably.  In other words, what was the conscious or subconscious reason for the treatment?  This requires the Tribunal to undertake

    Caught Between a Rock and a Hard Place: #MeToo Movement Creates Challenges for Directors

    The #MeToo movement continues to make headlines across the globe, toppling more than 200 powerful U.S. company leaders in entertainment, media, sports and a variety of other industries.  According to EEOC reports, sexual harassment charges have increased by 14% and EEOC-filed lawsuits asserting harassment have increased by 50%.  Larger amounts of cash are being paid to settle harassment suits, and those amounts may be minor compared to the reputational damage of being tried in the court of public opinion.

    Directors have long grappled with how to oversee company “culture” and employee behaviors.  Now many boards find themselves wedged between a rock and a hard place, as they struggle to balance the need for swift action when a complaint is made versus the need for appropriate due process rights for the accused.

    Boards increasingly are expected to investigate stale and non-actionable claims and off-duty conduct.  They are also expected to treat

    Meet the CCPA: New Privacy Rules for California Employees

    Employers with operations in California should be aware of the California Consumer Privacy Act (“CCPA”), a new privacy law that applies to data collected about California-based employees.   HR professionals should be aware that, although the CCPA refers to “consumers,” as currently drafted the CCPA’s definition of a “consumer” will apply to California-based employees.

    Which employers will have to comply with the CCPA?

    Employers with employees in California will need to comply with the CCPA if their business falls into one of the following three categories:

  • Their business buys, sells, or shares the “personal information” of 50,000 “consumers” or “devices”;
  • Their business has gross revenue greater than $25 million; or
  • Their business derives 50% or more of its annual revenue from sharing personal information.
  • What are the key implications of having to comply with the CCPA?

    The Employers who have to comply with the CCPA will be subject to the

    DOL: Employers May Not Delay FMLA Designation, Even at Employee’s Request

    It is not uncommon for employees to ask whether they can first use paid time off available under the employer’s leave policies and “save” their unpaid – and protected – Family and Medical Leave Act (FMLA) leave entitlement until later, in the event that they need additional leave.  Some employers permit this approach, perhaps out of a desire to be “generous” to employees with respect to leave, or sometimes inadvertently due to not realizing that paid leave and unpaid FMLA leave can run concurrently, or even because of a failure to recognize at the beginning of an employee’s leave that the FMLA applies.

    In an opinion letter issued on March 14, 2019, the U.S. Department of Labor (DOL) took a firm stand against this practice, stating unequivocally that “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.” 

    NYC Lactation Policies Going into Effect on March 18, 2019

    In October 2018, the New York City Council passed two bills, Int. 879-2018 and Int. 905-2018, to supplement existing federal and state laws concerning lactation accommodation policies in the workplace.  Currently, New York State Labor Law Section 2016-c  mandates employers to provide employees with a reasonable number of breaks; and a private sanitary space, other than a restroom, with a chair and flat surface on which to place the breast pump and other personal items, to express breast milk during the workday.

    Effective March 18, 2019, Int. 879-2018 requires NYC employers, with four or more employees, to provide lactation rooms[1] with an electrical outlet, as well as refrigerators, in reasonable proximity to work areas, for the purposes of expressing and storing breast milk.  Those employers who cannot provide a lactation room, as required under the new law because of undue hardship, are required to

    U.S. Department of Labor Proposes Changes to Minimum Salary for Overtime Exemptions

    March 11, 2019

    Categories

    On March 7, 2019, the United States Department of Labor issued a notice of proposed rulemaking that would change the minimum salary levels necessary for an employee to be properly classified as exempt from the overtime compensation requirements of the Fair Labor Standards Act.  Under the proposed rule, the minimum salary for most exemptions would rise from $455 per week ($23,660 annualized) to $679 per week ($35,308 annualized).  The minimum annual compensation for the “highly compensated employee” exemption would rise from $100,000 to $147,414.

    For employees in the executive, administrative and professional exemptions, the proposed rule would permit nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to ten percent (10%) of the required minimum salary.  In addition, provided that the employee has received at least ninety percent (90%) of the required minimum compensation in each payroll week for 52 weeks, the employer would be permitted to make a

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