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Justine Phillips is a partner in both Data Privacy & Security and Labor and Employment Practice Groups in the firm's San Diego office.

2020 has been a transformative year of everlasting uncertainty and constant change: employee privacy is no exception. California laws impacting employee data are changing yet again. This article highlights what employers need to know about (1) recent amendments to the California Consumer Privacy Act, and (2) what happens if the California Privacy Rights Act is approved by voters on November 3, 2020.
Continue Reading The Only Constant Is Change: How Evolving Privacy Laws Impact Employers

Effective immediately, Senate Bill (SB) 1159 is a new California law that establishes presumptions about workers’ compensation benefits for employees who contract COVID-19.  This article explains in a series of questions and answers what employers need to know about workers’ compensation under this new law if an employee tests positive for COVID-19.
Continue Reading Mother of All Presumptions 2.0: Expanding Workers Compensation Benefits to Employees That Test Positive for COVID-19

As we have previously reported, California law utilizes the “ABC” test to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission.
Continue Reading Expanding Independent Contractors in California: New Law Awaits Governor’s Signature

On June 17, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued new guidance to employers forbidding the administration of COVID-19 antibody tests under the Americans with Disabilities Act (“ADA”). EEOC COVID-19 Technical Assistance A.7. Though the ADA mainly protects disabled individuals from workplace and public discrimination, some parts of the Act apply universally. One such section prohibits employers from compelling workers to submit to medical examinations that are not “job-related and consistent with business necessity.” 29 CFR § 1630.14(c).
Continue Reading Not Today Corona: EEOC Bans Employer Antibody Screenings

Our proximity and “close contact” with other humans is on the front lines in the war against coronavirus.  Yet tracking 6 feet of distance from every human we encounter for a 14 day period is nearly impossible without the help of technology like contact-tracing apps.  Although many privacy and employment laws designed to protect employee rights have been temporarily relaxed during the pandemic, employers must consider and resolve employee privacy issues created by contact-tracing apps.  As businesses forge roadmaps to reopen, these apps offer innovative solutions to meet legal requirements imposed by OSHA and Centers for Disease Control.  This article explores what employers need to know about contact-tracing apps including how they work, the laws that govern, the impact to employee privacy, consent, and ways to mitigate risk associated with contact-tracing apps.
Continue Reading Up Close & Personal: Contact-Tracing Apps & Employee Privacy

On May 6, 2020, California Governor Gavin Newsom issued Executive Order N-62-20 (the “Order”), which states employees that test positive for COVID-19 are presumed to have contracted the virus in the course of employment for purposes of awarding workers’ compensation benefits, if certain requirements are met.
Continue Reading Mother of Presumptions: Employees With COVID-19 Presumed to Have Contracted Virus From Exposure at Work

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance concerning COVID-19, affirming an employer’s ability to medically test its employees for COVID-19 before allowing employees to enter the workplace.  The new guidance expands employers’ options to include medical tests that detect the presence of the COVID-19 virus – not just temperature checks.  The EEOC considers COVID-19 tests to be permissible because an individual with the virus poses a direct threat to the health of others.
Continue Reading As America Prepares to Return to Work, EEOC Approves Testing Employees for COVID-19

As a result of the COVID-19 pandemic, more than 16 million Americans have filed for unemployment in the last three weeks—approximately 10% of the domestic workforce.  This unprecedented number has challenged our unemployment insurance system.  This article discusses how unemployment agencies will administer benefits provided under various federal and state laws recently enacted in response to COVID-19.
Continue Reading Unemployment Insurance Benefits: A COVID-19 Update for California Employers

To slow the spread of the coronavirus, millions of United States workers are under government orders to stay at home.  However, many businesses considered “essential critical infrastructure” continue to operate and their employees are needed to work.  Many of those businesses are administering health tests like temperature checks to ensure the health and safety of their workforce and the public.  When quarantine restrictions eventually lift, businesses will reopen and employers may choose to screen employees before returning to work.  In a question and answer format, this article discusses the intersection of laws that require employers to maintain a safe work environment with an employee’s right to privacy.

According to the World Health Organization, the primary symptoms of coronavirus include fever, tiredness and dry cough.  Other reported symptoms may include shortness of breath, aches and pains, sore throat, nausea, runny nose and loss of smell or taste.  Temperature checks are currently the most common form of workplace testing.  As we learn more about the virus, other forms of inquiries or testing may arise.
Continue Reading Employee Privacy Forecast: Temperature Checks

Transparency and communication are cornerstones of a successful relationship—and the employment relationship is no exception.  The California Consumer Privacy Act (“CCPA”) came into effect on January 1, 2020, bestowing two landmark rights on California employees, applicants, contractors, emergency contacts, and dependents: (1) the right to notice about what personal information an employer collects and the purpose of collection; and (2) the right to sue with statutory damages if sensitive data is compromised.[1]
Continue Reading The Heart of Employee Rights Under CCPA: Attorney General Modifies Guidance

On October 11, 2019, California Gov. Gavin Newsom signed AB 25 into law, giving employees, applicants, independent contractors, emergency contacts and dependents new rights to privacy. As explained in our previous post—Employee Privacy by Design: Guidance for Employers Beginning to Comply with the California Consumer Privacy Act—the amendment to CCPA is a limited one-year reprieve for employers. Effective January 1, 2020, employers must provide disclosures to employees about the categories of personal information collected and its purpose. One year later, on January 1, 2021, all rights under CCPA will be provided, including the right to request access and the right to be forgotten. Below are a few quick points clarifying what AB 25 means for Human Resources professionals:
Continue Reading Big Bang! California Expands Employee Privacy Rights & Insights from the Office of Attorney General