The implementation of the European Union’s General Data Protection Regulation (GDPR), with an effective date of May 25, 2018, is just around the corner, and with it will come pressure on the human resources (HR) department to update its approach to handling employee data. The GDPR significantly enhances employee rights in respect to control over their personal data.

In particular, the GDPR introduces the concept of a “right of erasure” i.e. a ‘right to be forgotten’. Although the concept currently exists under EU law, it is currently applicable under very limited circumstances, when data processing may result in damage or distress. Under the GDPR, pursuant to Article 17 and Recital 65, an employee will have a right to have his/her data erased and no longer processed, where consent of processing is withdrawn, where the employee objects to such processing, or where processing is no longer necessary for the purpose for which it was gathered. That said, the employer, under certain circumstances, can refuse to comply with an employee’s request for erasure of personal data – where data processing is required by law or in connection with a legal proceeding.

Further, there is a time limit for responding to a request for erasure of data by an employee. An employer will be required to comply with a request by an employee ‘without undue delay’, and not later than one month of receipt of the request, together with the reasons for delay (Article 12).

To effectively meet the GDPR’s new requirements, employers will need to take stock of the employee data they process related to EU operations (see Does the GDPR Apply to Your U.S.-based Company?). What categories of EU employee data are processed? What categories of EU employee data are processed? Where does it comes from? In what context and where is it processed and maintained? Who has access to it? Are the uses and disclosures being made of that information permitted? What rights do EU employees have with respect to that information? The answers to these questions are not always self-evident. Employee data may cover current, former, or prospective EU employees as well as interns and volunteers. It may come from assorted places and be processed in less traditional contexts.

To better understand how an employee’s “right of erasure” will impact day-to-day HR operations, below are a few practical examples of instances where an employee will have the right, under the GDPR, to request that his/her data be erased and no longer processed.

Circumstances where an HR department may be compelled to erase employee data:

  • You collected the data during the employee’s hiring process, but, following the completion of that process, you can no longer demonstrate compelling grounds for continuing to process it.  Such data could include, inter alia: (i) past employment verifications, (ii) education and credential verifications, (iii) credit reporting and other financial history data, (iv) government identification numbers.
  • You collected data about an employee in order to administer benefits to him or her, but the employee has since de-enrolled from the benefits program.
  • You collected employee online monitoring data for work productivity purposes – but you collected data which the employee does not expect is reasonable processing (personal emails, personal messenger conversations, etc.).
  • You collected employee data (g., profiling data) for use in evaluating whether to promote an employee to Position X, but end up promoting another employee to that position instead.
  • You processed data related to employee job performance issues (g., late arrivals, absences, disputes with a coworker, etc.) a number of years ago, and the employee has not had similar issues since.
  • You collected identifying data on an employee such as an employee’s past address, phone number, email address, username, financial account information, etc., but the employee has since provided updated information.

Employers must be ready to comply with the new EU data regime upon its effective date next month. If your organization has not yet started, it should begin implementing policies and procedures that inform employees of their enhanced rights to control over their personal data, ensure that operationally the organization can comply with such rights, and train HR personnel handling employee requests for erasure of data. This includes developing a plan of how to respond timely and effective to employees’ requests, and a review process for when there is a legal basis to deny a request.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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