When people think about data breaches, they tend think more about the illegal hacking into computer networks by individuals, criminal enterprises or even nation states, than they do about simple employee error. This makes some sense as hacking incidents seem to be more interesting and draw more media attention. Holding this belief, however, can cause many to underestimate the risk of a breach due to the assumption they are not likely to be the target of a hack, and miss altogether the risk of employee error. A recent report by the Wall Street Journal about a survey by the Association for Corporate Counsel may change this.

According to the survey, “employee error” turns out to be the most common reason for a data breach. An example of the kind of employee error mentioned in the survey – “accidently sending an email with sensitive information to someone outside the company” – is something just about all of us have heard about or experienced in our own organizations.

So what does this mean? Well, for organizations that want to minimize the chance of a data breach, they may have to rethink their current strategies. This is particularly true in industries in which more employees are likely to have access to greater amounts of personal information – healthcare, insurance, retail, professional services, etc.

Addressing the risk of “employee error” is difficult…mistakes happen. But there are steps organization can take to minimize the risk. Here are a few:

  • Understand the risks your workforce presents. Addressing data security in an organization often means focusing on its IT infrastructure, with less attention to how employees do their jobs, what information they have access to and why, and whether employees are sufficiently aware of best practices for safeguarding information, among other things. Firewalls, software updates and encryption all are important to a comprehensive information security program, but to address employee error organizations first must understand the roles employees play and the functions they carry out that involve personal information. It is not uncommon for employee mistakes to bypass the IT safeguards, resulting in a data breach.
  • Reevaluate the role of IT. In many organizations, data breach prevention is thought of solely as an IT function. In most cases, this is simply the wrong approach. Data security is an enterprise-wide concern, requiring other stakeholders to have a seat at the table when trying to understand and minimize these risks. Assessing the risks healthcare workers pose to patient data, for example, requires more than an understanding of the level of encryption on the network. Does the worker know when he or she is able to disclose PHI to a family member, other person? Are workers aware of and follow the minimum necessary rule? How are workers using their personal devices, working from home, etc. The IT department is a necessary component for developing a data security plan, but its participation alone is not sufficient.
  • Training, training, training. Organizations and their employees are increasingly challenged by an expanding regulatory and compliance environment – data security is a part of that environment. The absence of adequate training can not only cause the organization to fall short of certain compliance mandates, but it is a missed opportunity to reduce data breach risk. Training ought to reach beyond how to set a good password and the policy on using flash drives. These are important, but training also should remind employees about basic steps they take in the course of their particular job which could trigger a significant breach if they are not careful – e.g., be careful when forwarding email with sensitive attachments, avoid clicking on links in emails, don’t leave boxes with sensitive data laying around, etc.

Obviously, more can be done to minimize the risk to personal data caused by employee error and those steps depend on a range of factors specific to each organization. However, organizations first have to recognize that employee error is a significant risk, and this requires thinking beyond IT-related risks.

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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.