Evolving Privacy Laws Affecting Employers

Evolving Privacy Laws Affecting Employers

September 30, 2020 Off By administrator

2020 has been a transformative year of everlasting uncertainty and constant change: employee privacy is no exception. California laws impacting employee data are changing yet again. This article highlights what employers need to know about (1) recent amendments to the California Consumer Privacy Act, and (2) what happens if the California Privacy Rights Act is approved by voters on November 3, 2020.

AB 1281 Amendments to California Consumer Privacy Act

On August 30, 2020, the California legislature passed AB 1281, an Assembly Bill that amends the California Consumer Privacy Act (“CCPA”) to extend limitations on employee rights for another year until January 1, 2022. Governor Newsom signed AB 1281 into law on September 29.

Here is what businesses need to know about AB 1281 and its amendment to CCPA:

  • CCPA’s limited exception for applicants, current and former employees and independent contractors is extended until January 1, 2022;

  • AB 1281 only takes effect if the California Privacy Rights Act is not approved by voters; and

  • Employees still have a right to notice and a right to sue as further discussed below.

Proposition 24 a.k.a. California Privacy Rights Act 

The California Privacy Rights Act (“Prop. 24”) is a ballot initiative that will be voted on by California residents on November 3, 2020. Here is what businesses need to know about Prop. 24:

  • The ballot initiative process gives California citizens a way to propose laws without the support of the governor or the legislature.

  • California voters will approve or deny Prop. 24 on November 3, 2020.

  • Prop. 24 extends CCPA’s limitation on employee rights to January 1, 2023.

  • Creates a new enforcement agency/commission to enforce Prop. 24.

  • Creates a new category of data called “sensitive personal information.”

  • Expands rights to access, correct and delete personal information.

  • Adopts a set of fundamental principles on data management, including limitations on data collection and retention.

  • Prop. 24 permits the legislature to amend the CPRA through a majority vote of both houses, signed by the Governor, so long as “the amendments do not compromise or weaken consumer privacy.”

Brief History of CCPA’s Application to Employees 

When CCPA passed in June 2018, there was no reference to employees, and it was uncertain whether employees were “consumers” and entitled to rights under CCPA. Later that year, the assembly introduced AB 25, which initially was drafted to exempt employees from CCPA. By the time AB 25 worked its way through the legislative process, it modified CCPA to expressly include employees and provided limited rights under CCPA until January 1, 2021. (See Employee Privacy by Design: Guidance for Employers Beginning to Comply with the CCPA and Big Bang! California Expands Employee Privacy Rights.) In February 2020, the…

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