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State Law Privacy Video Series | Employee Exemptions

California, Virginia and Colorado have new privacy laws coming into effect in 2023. But now is the time to start preparing your business or organization for compliance. Throughout the State Law Privacy video series, we examine the different aspects of these laws and provide you the knowledge and tools you need for proper compliance.

In the next video of the series, Associate Fran Forte explores one of the notable exemptions under California’s law as it relates to employee data and how employee data is handled under Virginia and Colorado’s privacy laws.

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US Supreme Court to Review Whether PAGA Claim Can Be Arbitrated

California’s Private Attorneys General Act (PAGA) has so far evaded arbitration agreements. Now, the Supreme Court of the United States will take up Viking River Cruises, Inc. v. Moriana to determine whether the Federal Arbitration Act (FAA) “requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

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Passage of California Privacy Act Could Spur Similar New Regulations in Other States

On November 3, California citizens approved the California Privacy Rights and Enforcement Act (the CPRA), a comprehensive privacy law that amends another privacy law that went into effect in the state on January 1, the California Consumer Privacy Act (CCPA). The CPRA is intended to strengthen privacy regulations in California by creating new requirements for companies that collect and share sensitive personal information. It also creates a new agency, the California Privacy Protection Agency, that will be responsible for enforcing CPRA violations.

In a recent article in CSO, McDermott partner Laura Jehl discussed the impact of the CPRA on the future of privacy legislation in the United States.

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Background Checks: The Advent of the New California Employment Class Action

Class action litigation brought under the Fair Credit Reporting Act (FCRA) is on the rise—particularly in California—after the US Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA’s disclosure requirements. Background checks are an integral part of the hiring process, but they open employers up to lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs’ firms are turning their attention to these cases because of the potential for statutory and actual damages, punitive damages, costs and attorneys’ fees. In our recent webinars, we discussed strategies to help employers avoid and defend these claims.

View Part I’s slide deck here.

View Part II’s slide deck here.




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CCPA Amendment Update: California Legislature Approves Exceptions for HIPAA De-Identified Information and Other Health Data

On September 25, 2020, California Governor Gavin Newsom signed into law California AB 713, which amends the California Consumer Privacy Act (CCPA) to except from its requirements certain health information, including information that has been de-identified in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The bill’s enactment eases some of the CCPA compliance challenges experienced by the health care and life sciences industries by more closely aligning the CCPA with HIPAA and other laws governing human subjects research. The new law also amends the CCPA to except all business associates to the extent that they maintain, use or disclose patient information in the same manner as protected health information under HIPAA.

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Healthcare Employers: What You Need to Know about the New FFCRA “Health Care Provider” Exclusion and California COVID-19 Supplemental Paid Sick Leave

Healthcare employers are immediately impacted by two recent developments in federal and California COVID-19 paid leave laws: a Department of Labor revision to the Families First Coronavirus Response Act (FFCRA) and a new California supplemental paid sick leave legislation. For both changes in the law, quick action is required for compliance.

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California COVID-19 Supplemental Paid Sick Leave Act (AB 1867): Paid Leave, Notice and Posting Requirements Effective Immediately

On September 9, 2020, California Governor Gavin Newsom signed into law Assembly Bill 1867, the California COVID-19 Supplemental Paid Sick Leave Act. According to the law, employers with more than 500 employees nationally, and employers of healthcare-provider and emergency-responder employees previously exempted from Families First Coronavirus Response Act (FFCRA) requirements, must provide California employees with two weeks of supplemental paid sick leave for specified COVID-19 reasons. Additionally, the law requires employers to comply with urgent-notice and posting requirements that are administratively burdensome.

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Pandemic Unemployment Aid Intensifies Debate Over Classifying Gig Workers

The federal Pandemic Unemployment Assistance program extends relief to workers and employees who don’t have access to state benefits, but it will almost certainly put pressure on gig economy companies to start paying into state unemployment insurance funds as government resources continue to diminish due to COVID-19, attorneys say.

Michelle S. Strowhiro, partner at McDermott Will & Emery, said, “To the extent that, post-COVID, we want to maintain unemployment benefits for those traditionally not eligible, … we’d have to contemplate a way that additional funding could be accessed for the long term.”

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ERISA Cases to Watch in 2020: All Eyes on the High Court

2020 is shaping up to be a banner year for benefits law, with three ERISA cases already on the US Supreme Court’s docket and a number of other high-profile lawsuits at the circuit court level that could attract the justices’ attention.

While waiting on the high court’s ERISA decisions, lawyers are watching litigation trends develop in the lower courts and waiting to see if the high court picks up another two ERISA cases.

McDermott’s Richard J. Pearl contributes to a Law360 article that look at what 2020 may hold for benefits litigation.

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Originally published on Law360, January 2020




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Employment Cases to Keep an Eye on in 2020

This year, the US Supreme Court will get a chance to say whether federal civil rights law protects gay and transgender employees from discrimination, and California courts will grapple with recent changes making it harder for Golden State businesses to label workers as independent contractors. McDermott’s Michael Sheehan looked at these and other cases to watch in 2020 in a recent article for Law360.

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Originally published by Law360, January 2020




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