California’s Draft Regulations Spotlight Artificial Intelligence Tools’ Potential to Lead to Discrimination Claims

California is considering new regulations on the use of technology or artificial intelligence (AI) to screen job candidates or make other employment decisions. If the regulations become law, California would be the first state to adopt substantive restrictions specifically addressing this emerging, and often misunderstood, technology.

When Retirement Plan Service Providers Use Plan Participant Data for Purposes Unrelated to a Plan: What Employers Need to Know

There is a growing trend of using participant data to cross-sell financial products unrelated to plan recordkeeping by large recordkeepers and asset custodians of employer-sponsored retirement plans. In light of the fact that plan fiduciaries are ultimately legally responsible for the management and mismanagement of a retirement plan, this trend to use participant data may raise issues for employers in their role as plan sponsors and fiduciaries.

The U.S. and EU Announce an “Agreement in Principle” to Replace the EU-U.S. Privacy Shield Framework: What Employers Need to Know

On March 25, 2022, the European Union (EU) announced that the United States and the EU had reached an agreement in principle to replace the EU-U.S Privacy Shield framework, which the European Court of Justice (CJEU) struck down in its July 2020 Schrems II decision. Since the Schrems II decision, U.S. and EU negotiators have been hammering out a workable data transfer mechanism to permit the transfer of EU data to the United States.

Ontario’s Bill 88 Would Establish Electronic Monitoring Policies, Create Rights for Workers on Digital Platforms, and Require Naloxone Kits

On February 28, 2022, the Government of Ontario introduced Bill 88, the Working for Workers Act, 2022. Bill 88 would enact the Digital Platform Workers’ Rights Act, 2022, which would establish rights for workers who offer services through digital platforms. In addition, Bill 88 would amend a number of statutes including the Employment Standards Act, 2000.

No Grand Bargain: Illinois Supreme Court Rejects Exclusive Remedy Preemption in Privacy Act Class Actions

On February 3, 2022, in McDonald v. Symphony Bronzeville Park, LLC, the Illinois Supreme Court held the exclusive remedy provisions of the Illinois Workers’ Compensation Act (“Compensation Act”) do not preempt employee statutory damages claims under the Illinois Biometric Privacy Act (“Privacy Act”).

The California Privacy Rights Act: Employers’ Compliance Obligations and More

Beginning January 1, 2020, certain California employers were required to comply with portions of the California Consumer Privacy Act of 2018 (CCPA) regarding the collection of consumers’ personal information. On November 3, 2020, California voters passed Proposition 24, the California Privacy Rights Act of 2020 (CPRA), which dramatically strengthened and expanded the CCPA. Employers subject to the CPRA must be in compliance by January 1, 2023. The urgency for employers to start those efforts now to meet this compliance deadline is caused by, among other things, the fact that employees have disclosure rights under the CPRA.

New York City to Restrict Use of Automated Employment Decision Tools: What Employers Should Know

Employers and employment agencies in New York City that currently utilize, or expect to utilize, automated tools to make employment decisions may wish to begin planning now for restrictions that will take effect on January 1, 2023, concerning the types of tools that may be utilized and the disclosures concerning such tools that must be provided to candidates for employment or promotions.

Michigan Supreme Court Pushes Back Effective Date for Personal Identifying Information Restrictions on Court Records

In May 2019, the Michigan Supreme Court issued rules that when implemented  generally would prohibit Michigan courts from releasing personal identifying information (PII), such as birthdates, on court records. The rules were set to go into effect on July 1, 2021. Because consumer reporting agencies (CRAs) use PII to confirm the identities of the subjects of records and to comply with verification standards set forth in the Fair Credit Reporting Act (FCRA), CRAs would have been affected by the restrictions on access to court files, potentially impacting the timely and accurate release of background check information in Michigan.

Employees’ Rights to Email Data in Germany Pursuant to Article 15 (3) GDPR

Employees may have a claim against their employers for access to information about all personal data processed by the employers pursuant to Article 15 (3), Sentence 1, of Regulation (EU) 2016/679 (General Data Protection Regulation (GDPR)). Under the GDPR, employees have a right to access, among other things, information about the purposes of personal data processing, the recipients of the data processed, and the storage period relevant to the data.

European Commission Adopts Two New Sets of Standard Contractual Clauses: What Employers Need to Know

On June 4, 2021, the European Commission adopted two new sets of standard contractual clauses (SCCs): one for data transfers from data controllers to data processors and one for data transfers from data exporters to data importers in the United States and other third countries. These new clauses update and replace the SCCs adopted in 2001, 2004, and 2010 that many employers currently use to legally transfer human resources (HR) data for employees based in the European Union (EU).

ERISA Cybersecurity Lessons for Employers

Retirement plans are increasingly subject to cybersecurity issues, and the U.S. Department of Labor (DOL) is taking notice. On April 14, 2021, the DOL published cybersecurity guidance “for plan sponsors, plan fiduciaries, record keepers and plan participants on best practices for maintaining cybersecurity, including tips” for hiring service providers and online security tips for participants. In recent years, DOL guidance that eased rules related to electronic communications to plan participants might have helped make participants more susceptible to phishing attempts that masquerade as official plan communications.

Comprehensive Data Privacy Law Brings Big Changes to Virginia, but Excludes Employee Personal Data

Virginia has joined California as the second state to enact a comprehensive data privacy law. On March 2, 2021, Virginia Governor Ralph Northam signed the Virginia Consumer Data Protection Act (VCDPA) into law. The VCDPA does not go into effect until January 1, 2023, but the broad privacy mandate will have an immediate impact on compliance efforts for many Virginia businesses.

Global Strategies for COVID-19 Vaccinations in the Workplace: 7 FAQs for Multinational Employers

COVID-19 continues to cause significant restrictions in many areas around the world, including workplaces: Employees are working in remote settings, they no longer share tools and supplies, partitions separate workspaces, employees may not gather in common areas, and in-person meetings are reduced to a minimum. With distribution of the first vaccines impending, employers may expect a return to pre-pandemic practices. There is wide variation internationally on the approach to vaccinations. Below are answers to employers’ frequently asked questions about vaccinating global and multinational workforces.

EU-UK Trade and Cooperation Agreement Provides a Grace Period for Free Flow of Personal Data

After the political and constitutional upheaval of the last four years that has been Brexit, a trade deal—the EU-UK Trade and Cooperation Agreement—was finally reached between the United Kingdom (UK) and the European Union (EU) on December 24, 2020, just days before the deadline when the UK was set to crash out of all EU treaties.

DHS Proposal Would Expand Biometrics Collection and Use for Immigration Enforcement

On September 11, 2020, the U.S. Department of Homeland Security (DHS) proposed a regulation that focuses on the expansion of the collection and use of biometric data in the enforcement and administration of immigration laws. The proposed rule would subject foreign nationals to periodic biometrics collection and continuous vetting after they enter the United States and until they become U.S. citizens.

China’s New Civil Code Cracks Down on Sexual Harassment and Protects Individual Privacy Rights

Amidst the pandemic, China introduced a civil code—its first-ever compilation of civil laws detailing the rights of private parties. The code’s attention to sexual harassment provides another important reminder that even as workplaces focus on virtual workforces, social distancing, and other novel legal issues, workplace respect and inclusion remain essential to a well-functioning workplace.

European Court of Justice Declares the EU-U.S. Privacy Shield Invalid and Provides Additional Obligations on Companies Using Standard Contractual Clauses

On July 16, 2020, the Court of Justice of the European Union (CJEU) announced its judgment in the so-called Schrems II case (Case C-311/18), declaring that the EU-U.S. Privacy Shield is invalid because it does not provide an adequate level of protection for the transfer of personal data from the European Union (EU) to the United States.

Reading Between the Lines: Which Domestic Travel Quarantine Guidelines Apply?

Most readers are likely now familiar with the initial travel guidance for international travel issued by the U.S. Centers for Disease Control and Prevention (CDC). Since then, governors have taken the lead in issuing orders related to COVID-19 for, among other things, closing businesses, mandating citizens stay home, and only permitting essential businesses to operate. Along with those orders, many have issued guidance related to quarantines for out-of-state travelers, including those who have only traveled domestically within the United States. Many of these orders are expressly aimed at discouraging interstate travel other than for essential services.

COVID-19 Consumer Data Protection Act Announced by Republican Senators

Over the years, Congress has put forth various legislative proposals regarding data privacy. None of the past legislation received the support necessary to enable passage of a comprehensive national data privacy law. In the face of the ongoing COVID-19 pandemic, however, promising new privacy legislation has been introduced by Senator Roger Wicker (R-MS), chairman of the U.S. Senate Committee on Commerce, Science, and Transportation; Senator John Thune (R-SD), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Senator Jerry Moran (R-KN), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Senator Marsha Blackburn (R-TN).

What’s Changed, What Hasn’t: A Review of HIPAA Rules in a COVID-19 Context

With employers planning for employees to return to work following COVID-19–related closures, there are sure to be questions about sharing employee medical information as it relates to COVID-19 (symptoms, test results, status) within the workplace and with public authorities. Now may be a good time to review what has changed about federal privacy rules in light of the COVID-19 pandemic—and what hasn’t.