After being hit with a data breach, the last thing a company might want is the scrutiny of the union representing its employees affected by the incident. When the data breach potentially affecting hundreds of thousands of United States Postal Service employees was reported, it was not long after that the American Postal Workers Union filed an unfair labor practice with the National Labor Relations Board. The Union alleges that the Postal Service should have bargained with the union over the impact of the security breach. (Regarding impact, the Postal Service reportedly is offering employees a one-year of free credit monitoring through Equifax, but the union believes the Postal Service did not have the legal right to decide to offer the Equifax subscription without first offering to Bargain with the union.)

While none of the data breach notification statutes include an employee’s labor union as one of the parties entitled to notice of a breach, the APWU is making the argument that the National Labor Relations Act required the Postal Service to let it be involved in the discussions on how to address the breach and the negative consequences on employees. APWU President Mark Dimondstein acknowledged receiving a call from Postmaster General Patrick Donahoe concerning the breach, but apparently wanted to be more involved.

A primary purpose of most if not all data breach notification laws is to provide the required notice to individuals affected by the breach so they can take appropriate steps to protect their information and identity. All of the state data breach notification laws and HIPAA generally require notification be provided without unreasonable delay. Some laws provide an outside date by which notice must be provided – e.g., not more than 30, 45 or 60 days following discovery. But the rule is to provide notice as soon as possible, without unreasonable delay.

When a breach is discovered there are many steps companies must go through to be in a position to respond without unreasonable delay, a time frame that is not clearly defined and is influenced by a variety of circumstances. For instance, among many other steps, companies must immediately investigate the nature and scope of the incident which can involve a significant amount of forensics and research, stop the breach if it is continuing, determine who was affected, understand the applicable legal and compliance requirements, coordinate with law enforcement and state Attorneys General, as applicable, gather up to date contact information to the extent available, and coordinate with vendors regarding mailing letters, credit monitoring and other services for affected persons. Entering into negotiations with one or more representative unions about responding to such an incident before the notifications go out likely would be an involved process that would further delay the notice to affected persons.

However, depending on how the NLRB charge turns out, employers may have to interact more closely with their employees’ union representatives when employee personal information may have been breached. Of course, employers should expect that, as here, the union may make further the inquiry into the company’s data privacy and security practices in an effort to protect its members and seek additional leverage in negotiations. For these reasons, companies need to revisit (develop if they have not already) their data breach response plans and consider additional steps they might want to take, if any, to involve the union. Additionally, companies should take steps to ensure that employee personal data is safeguarded in accordance with applicable law and best practices.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.