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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.

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

On September 13, 2019, the California Senate and Assembly unanimously passed an amendment to the California Consumer Privacy Act (“CCPA”) that places onerous obligations on employers and entitles employees to statutory damages for data breaches.  The landmark measure—AB 25—awaits Governor Newsom’s signature (or veto).  Regardless of whether AB 25 is signed into law, CCPA applies to employee data and employers have until January 1, 2020 to comply.  This article explores how the California Consumer Privacy Act impacts existing employee privacy rights and how employers can begin to develop a holistic privacy compliance program.
Continue Reading Employee Privacy by Design: Guidance for Employers Beginning to Comply with the California Consumer Privacy Act

Last year, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a landmark decision that dramatically increased the risk of misclassifying individuals as independent contractors. As previously reported, although Dynamex replaced the longstanding Borello standard with the “ABC” test, it also left two critical questions unaddressed. First, Dynamex did not address whether the ABC test applies retroactively. Second, Dynamex did not decide whether its scope was limited to coverage under the Industrial Wage Commission’s (“IWC”) Wage Orders or if its holding generally applied to the Labor Code as a whole. In the last five days, both questions have been answered.

On May 2, 2019, the Ninth Circuit found that Dynamex applies retroactively under California law in Vazquez v. Jan-Pro Franchising International, Inc., the most notable decision to date regarding Dynamex’s retroactivity. Shortly thereafter, on May 3, 2019, the Division of Labor Standards Enforcement (“DLSE”), California’s wage and hour enforcement agency, issued a letter opining the ABC test applies to both the IWC Wage Orders and any Labor Code provisions that enforce requirements set forth in the Wage Orders. Although neither the Ninth Circuit nor the DLSE can authoritatively interpret California law, these developments indicate that Dynamex’s scope—which governs hundreds of thousands of independent contractor relationships throughout the state—has continued to expand its already extensive reach.
Continue Reading The Future of Independent Contractors: Ninth Circuit Applies Dynamex Retroactively and the DLSE Issues Opinion Letter Expanding Its Scope

Albert Einstein believed “Everything should be made as simple as possible, but not simpler.” The Ninth Circuit seems to agree. In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws. Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms: (1) disclosure and consent under Fair Credit Reporting Act; and (2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law). This decision applies to employees providing services in the Ninth Circuit (California, Arizona, Hawaii, Alaska, Idaho, Montana, Nevada, Oregon and Washington).
Continue Reading Complicating Simplicity: Ninth Circuit Requires Separate Stand-Alone Documents for Employment Background Checks

The legalization of recreational use of marijuana in several states, including California, has left many employment policies vague and confused. This article offers insights to questions every employer should be asking in light of legalization.

California’s Rollout of Legal Marijuana

California voters passed the Adult Use of Marijuana Act (“Prop 64”) on November 8, 2016, legalizing recreational marijuana use. However, the California Bureau of Cannabis Control only began accepting, processing, and issuing licenses to commercial marijuana dispensaries as of January 1, 2018. As of April 2018, the Bureau has granted over 5,000 licenses for a variety of commercial uses, including retail sales and distribution.
Continue Reading It’s High Time to Update Your Marijuana Policies

The deadline for California Governor Jerry Brown to sign new bills into law officially expired October 15, 2017. In addition to signing five bills last week, the Governor signed three more employment-related bills into law over the weekend relating to the use of job applicants’ criminal history, the required components of sexual harassment training, and the liability of building contractors for their subcontractors’ failure to pay wages, fringe benefits, or other benefit payments. The three new laws all become effective on January 1, 2018.
Continue Reading California Governor Approves Three More Employment Laws: “Ban The Box”; Expansion of Sexual Harassment Training; and Contractors Liable for Subcontractors’ Wage and Benefit Obligations

The 2017 California Legislature adjourned on September 15, 2017, and resulted in more than 700 bills being sent to Governor Jerry Brown’s desk for approval. Although the deadline for the Governor to sign new bills into law does not officially expire until October 15, the Governor has already given his stamp of approval to a handful of new employment laws that will take effect on January 1, 2018, including one from the California Chamber of Commerce’s annual list of “Job Killers.” Below is a summary of the major bills recently signed into law.
Continue Reading 5 New Laws: California Governor Approves Employee-Friendly Laws

As reported in our new laws for 2017 post, employers must give written notice to new employees (and to current employees upon request) explaining the rights of victims of domestic violence, sexual assault and stalking. All California employers with at least 25 employees must be in compliance, effective July 1, 2017.
Continue Reading Now in Effect: California Employers Must Provide New Hires with Written Notice of Victim Rights

Human Resources and payroll professionals are being targeted by sophisticated cyber criminals to steal employee data.  The email phishing scam works like this:  the bad guy sends an email to employees in the human resources or payroll department spoofing an email from a company executive, usually the CEO or CFO.  Email spoofing is the forgery of an email header so the message appears to have originated from the c-suite but actually belongs to a cybercriminal. The email may seek confidential information about the company’s employees, such as their Social Security Numbers and W-2 forms, or may ask that funds be immediately sent, via wire transfer, to a bank account number (commonly associated with a bank overseas).  Recipients of spoofed emails are deceived into disclosing the protected data that is then used to submit employees’ tax returns to the Internal Revenue Service or for other illegal activity such as transferring company funds to accounts from which they cannot be retrieved.
Continue Reading Beware of Email Requests from the C-Suite to Transfer Employee Data