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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

    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

    New California Laws Change Sexual Harassment Landscape

    On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

    SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

    The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

    • The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that

    Where There’s Smoke, There’s Danger: CAL/OSHA Urges Protection of Workers From Wildfire Smoke

    California is currently experiencing record-breaking heat waves and an increased number of active wildfire incidents.  California OSHA (CAL OSHA) has determined that this poses a serious threat to the safety of outdoor workers because smoke from wildfires often contains chemicals, gases, and fine particles that are dangerous to human health.  Inhaling such particles is particularly dangerous, says CAL OSHA, because it can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing, and difficulty breathing.

    In response to these concerns, CAL/OSHA recently issued an advisory notice that urges employers with employees  exposed to wildfire smoke to take extra precautions as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).  Those precautions include:

    • Utilizing engineering controls whenever feasible (for example,

    California High Court Adopts New Test For Independent Contractors

    California High Court Adopts New Test For Independent Contractors

    May 2, 2018

    Authored by: Bryan Cave At Work

    In its decision on April 30, the California Supreme Court established a new test for classifying workers as independent contractors, with significant implications for the so-called “gig economy.” In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the Supreme Court laid out the “ABC Test,” which presumptively considers all workers to be employees and permits an independent contractor classification only if the hiring entity can show that all of the following conditions are met:

  • The worker has freedom from control or direction of the hiring entity over how to perform the work, both under contract and in fact;
  • The service is outside the company’s usual course of business or outside of all the places of business for which the service is performed; and
  • The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring
  • Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

    California’s passage of the “Control, Regulate, and Tax Adult Use of Marijuana Act,” commonly referred to as Proposition 64, legalized the sale, possession, and use of recreational marijuana under limited circumstances. Marijuana still remains an illegal Schedule I substance under the federal Controlled Substances Act and therefore still subject to prosecution under federal law. Many employers wonder what effect, if any, Proposition 64 has on their ability to maintain a drug free workplace.

    Bryan Cave attorneys just released a client alert on this topic. Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers comply with California law. If you or your organization would like more information on Proposition 64, or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    You’ve Been Warned: California’s WARN Act Is Broader Than the Federal Warn Act

    As with so many other situations involving California’s employment laws, its protection for California-based employees experiencing a job loss is broader than the protections under federal law.  In The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 998, et al. v. Nassco Holdings Inc., et al., the California Court of Appeal, Fourth Appellate Division held, among other things, that California’s version of the Worker Adjustment and Retraining Notification (“WARN”) Act is broader than its federal counterpart.

    The specific issue the court addressed was whether a furlough of several weeks constituted a “layoff” for purposes of a “mass layoff,” triggering the 60-day notice period when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period.  The defendant argued unsuccessfully that no notice was required because its work stoppage was only for a brief period and therefore its action was not a “layoff” or

    2018 Exemption Limits for the Computer Professional and Physician Exemptions

    December 1, 2017

    Categories

    Effective January 1, 2018, California’s Department of Industrial Relations will begin imposing new rates for the computer software employee exemption and the licensed physician and surgeon exemption to reflect a 2.9% increase in the California Consumer Price Index (CCPI) for Urban Wage Earners and Clerical Workers.

    To be exempt from overtime requirements, a computer software employee’s rates have increased as follows:

    • Minimum hourly rate:  From $42.35 to $43.58
    • Minimum monthly salary:  From $7,352.62 to $7,565.85
    • Minimum annual salary:  From $88,231.36 to $90,790.07

    The minimum hourly pay for licensed physician and surgeon exemption has increased from $77.15 to $79.39.

    Relatedly, the professional, executive and administrative exemptions will also be subject to change after the minimum wage increase takes effect on January 1, 2018.  To qualify as exempt under these classifications, employees must be paid at least two times the state minimum wage in addition to meeting the other exemption

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