1. What’s changing?

Under the current version of the California Consumer Privacy Act (“CCPA”), an employer’s obligations related to the personal information it collects from employees, applicants, and contractors residing in California (collectively, “Employment Information”) are relatively limited.  Specifically, it needs to (1) provide those individuals a “notice at collection” that discloses the categories of personal information the employer collects about them and the purposes for which that information is used, and (2) safeguard those individuals’ personal information against unauthorized access or acquisition.

Come January 1, 2023, however, those obligations will dramatically expand when California’s new comprehensive privacy law, the California Privacy Rights Act (“CPRA”), which amends the CCPA, takes effect. 

2. How will Employment Information be treated after January 1, 2023?

Subject to any regulatory updates, Employment Information will be treated like commercial consumer information.

3. What are we required to do by January 1, 2023?

With respect to Employment Information, the core requirements of the CCPA will be as follows:

  • At or before the collection of Employment Information, provide employees, applicants, and contractors a notice at collection, disclosing the categories of Employment Information you collect, the purposes for which that information is used, and certain record retention information.
  • Provide employees, applicants, and contractors a privacy policy that discloses, in addition to the notice at collection of information, the sources from which you collect Employment Information; the parties to which, and purposes for which, you disclose that information, and the rights granted to employees, applicants, and contractors by the CCPA (e.g., the right to access, correct, and/or delete personal information).
  • Develop policies, procedures, and forms to process requests to access, correct, and/or delete personal information, and to avoid discriminating against individuals for exercising those rights.  This includes verifying the identities and authority of the persons making the requests, including third parties acting on their behalf.  
    • Train applicable staff on processing the above requests.
  • Determine whether you must extend the right to limit the use and disclosure of sensitive Employment Information. This will depend on your uses and disclosures of “sensitive personal information”, which is a narrow subset of personal information.
  • Identify service providers and contractors with access to Employment Information and ensure your contracts with those parties are CCPA-compliant.
  • While not a per se requirement, conducting a data mapping exercise is often critical to compliance with the obligations listed above.  Specifically, data mapping will help you identify, inter alia: what personal information you collect about employees, applicants, and contractors; the purposes for which you use that information; the sources of that information; the parties to which that information is disclosed, and for what purposes; and how long that information is retained.

4. What about the personal information of spouses and dependents?

Subject to any regulatory updates or clarifications, if the spouse or dependent is a California resident, their personal information would be subject to the same protections as Employment Information.

5. I keep seeing more “Do Not Sell My Personal Information” links on websites.  Does that requirement apply here?

We expect most employers will not be “selling” or “sharing” Employment Information, as those terms are defined under the CCPA.  However, it is prudent to analyze those definitions – in particular, for selling – to be sure.

6. January 1, 2023, is really soon.  We don’t have time for all of that.  Where should we focus our attention?!?

Full compliance with the CCPA will be a heavy lift for employers.  Those looking to triage in advance of the effective date can prioritize these relatively manageable action items:

  • Develop a working draft of your privacy policy (which would include an updated notice at collection)
  • Ensure your service provider and contractor agreements are compliant
  • Implement a preliminary framework for processing requests to access, correct, and/or delete personal information
  • Start the data mapping process

7. Is there a chance the California legislature could change this?

The California legislature reconvenes in January 2023 and, yes, it is possible it could pass a law that would revert to the rules for Employment Information described in Question 1 above or eliminate the CCPA’s application to Employment Information entirely.  By that point, however, the changes described above will already be in effect (although there is an enforcement grace period through July 1, 2023).  Waiting and hoping the California legislature jumps in to save employers is a risky strategy. 

If you have questions about compliance requirements under CCPA/CPRA please reach out to a member of our Privacy, Data, and Cybersecurity practice group.

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Photo of Mary T. Costigan Mary T. Costigan

Mary T. Costigan is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a core member of the firm’s Privacy, Data and Cybersecurity practice group. She holds a Certified Information Privacy Professional/US designation from the International Association of…

Mary T. Costigan is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a core member of the firm’s Privacy, Data and Cybersecurity practice group. She holds a Certified Information Privacy Professional/US designation from the International Association of Privacy Professionals (iapp).

Mary advises regional, national and multinational clients across various industries on data privacy and cybersecurity laws and best practices including employee monitoring, internet privacy, biometric data collection, artificial intelligence, the California Consumer Privacy Act (CCPA), HIPAA, and the EU General Data Protection Regulation.

Mary has extensive experience helping clients respond to cybersecurity incidents including ransomware attacks.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

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.