Consumer Privacy Protections for Employers Under the California Consumer Privacy Act, as Amended by the California Privacy Rights Act (CCPA)
When the California Consumer Privacy Act (“CCPA”) originally took effect in 2020, it exempted employees from most of its provisions. This year, the California Privacy Rights Act (“CPRA”) finally extends major consumer privacy rights under the CCPA to employees and job applicants of covered employers. In addition to requiring covered employers to provide privacy notices at the time employee personal information is collected, the CPRA grants employees several new rights, including the rights to request what personal information their employers have collected and/or disclosed and to request that their employers delete their personal information, with some exceptions.
Covered employers do not need to – and in some instances may not – delete certain data, including where a business’s legal obligations require its retention, such as under California Labor Code Sections 1198.5(c) (retention of personnel files) and 226(a) (retention of payroll records). Among its other provisions, the CPRA also allows employees to opt out of the sale or sharing of their personal information and to limit the use of “sensitive” personal information, a new category of data under the CCPA that includes an employee’s social security number, driver’s license, and financial information, as well as race, ethnicity, and religion. The CPRA includes an anti-discrimination provision, which prohibits retaliation for the exercise of rights under the Act.
Though its provisions are wide sweeping, the CCPA focuses on larger companies and those engaged in the sale of data. It covers only companies doing business in California that fall within one of 3 categories: (i) businesses having annual gross revenues that exceed $25 million; (ii) those that annually buy, receive, share, or sell personal information of more than 100,000 consumers or households in California; or (iii) companies that derive at least 50 percent of their annual revenue from selling or sharing personal information of residents of California.
An athlete with Down syndrome made history. Then the abuse began, the suit says.
Caden Cox ran out to the 13-yard line with 3:22 left in the third quarter as his Hocking College Hawks battled the Sussex County Community College Skylanders on Sept. 11, 2021.
With Cox ready, the center snapped the football to the holder, who caught it and put it on the turf. Wearing No. 21, Cox trotted forward, pulled back his right leg, and swept it forward, lifting the ball through the uprights.
The extra point was good.
With that, Cox made history as the first known player with Down syndrome to score during a college football game. The feat earned him a spot in the history books and a 5½-minute segment on ESPN.
People talked to me and said, ‘Wow, it was an awesome kick
“People talked to me and said, ‘Wow, it was an awesome kick,’” he told a reporter at the time.
Less than two years later, Cox is suing his alma mater, alleging that the very thing that made his kick historic also made him a target for discrimination. In a lawsuit filed Thursday in the U.S. District Court for Southern Ohio, Cox alleges that college officials in Nelsonville, Ohio, discriminated against him because he has Down syndrome and then retaliated against him when he reported it to administrators. In one incident, a supervisor at the college’s student center threatened him with a knife and was later convicted in the incident.
President Betty Young declined to comment on Cox’s allegations but, in a statement to The Washington Post, said that she’s “happy Hocking College could provide opportunities for Caden to receive a college education and to participate in college athletics.”
“We remain committed to provide such to all our students,” she added.
Cox alleges that the discrimination started soon after June 2021 when the college hired Matthew Kmosko, a former professional soccer player, as a soccer coach and a supervisor at the college’s student center. In the latter role, Kmosko oversaw Cox, who worked at the center as a student-employee. As Cox’s boss, Kmosko consistently used “derogatory slurs” about people with Down syndrome and repeatedly berated him in front of his co-workers, the suit alleges.
Court records do not yet list an attorney for Kmosko. The public defender who represented Kmosko in the criminal trial declined to comment on Cox’s allegations in the civil suit.
In July 2021, Cox’s mother, Mari, who works at the college, filed a written complaint about Kmosko’s behavior with the college’s human resources department, according to the suit.
The misbehavior not only continued but also escalated, it alleges.
In January 2022, Mari emailed another complaint about Kmosko, asking that he be replaced as her son’s supervisor, the suit says. In the message, she accused Kmosko of calling her son the r-word, taking his phone without permission, and “putting his hands on [her son] inappropriately.”
Then, on May 12, when Cox went into a men’s bathroom to change the garbage bags, Kmosko allegedly followed him, blocked the exit and screamed at Cox while preventing him from leaving. As Kmosko did, he pointed a knife at Cox’s chest, the suit states.
Cox told investigators he feared that Kmosko would stab him, according to a police report.
Surveillance cameras captured Kmosko walking into and out of the bathroom with the knife, the suit states. Shaken and scared, Cox returned to the front desk, where he said he received a call from Kmosko. He allegedly told Cox that he could see him sitting there and ordered him to “get up and do something” before hanging up.
Cox “was terrified and traumatized and called his mother immediately,” according to the suit.
In July, Kmosko, who resigned from the college, was charged with aggravated menacing, a misdemeanor, in connection with the incident, and an Athens County jury found him guilty in January of menacing, a lesser charge. He was sentenced to 30 days in jail.
This past October, the college sent an email to employees calling for nominations for awards at the fall graduation ceremony, the suit states, and Cox “was nominated for nearly every award” by several staff members, including his coaches. Once the votes were tallied on Nov. 11, Cox had won three honors: the Inspirational Award, the Scholar Athlete Award, and the Hocking College Trustee Award, which was to be bestowed at a graduation ceremony on Dec. 10.
On Dec. 2, lawyers representing the Cox family delivered a letter to Young, laying out their allegations of discrimination, harassment, and assault.
On Dec. 9, a day before the ceremony, Cox’s father, Kevin, who worked at the college as a football coach until he resigned in February, arrived at the school to set up for the next day’s festivities. Reviewing the ceremony program, he noticed it listed his son as having won only one award, although a QR code on posters around the school routed to a digital version showing all three.
“Retaliation is the only plausible reason for the surreptitious and punitive removal of [Cox’s] graduation awards days before the graduation ceremony was to take place,” the suit alleges.
For people with Down syndrome, a longer life, but under a cloud
After graduating, Cox completed a football-related internship at Texas A&M University, where his older brother works as a strength coach, his lawyer, Mark Weiker, told The Post. He’s back in Ohio and, in June, plans to go to orientation at an Ohio State University program for people with intellectual and developmental disabilities.
But a year later, the knife incident still haunts Cox, according to his lawsuit. He continues to suffer from nightmares and anxiety. When he visits Hocking’s campus, he gets especially scared when he sees a red car like the one Kmosko used to drive to school.
“The distress that [Caden] suffered and continues to suffer from as a result of the trauma he endured,” the suit states, “will affect him emotionally and psychologically for the rest of this life.”
AB 2188 Protections for off-site, off-duty marijuana use beginning January 1, 2024
The legalization of recreational marijuana in 2016 led many to question the California Supreme Court’s decision in Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), which held in part that, despite the legalization of medical marijuana in 1996, an employer could lawfully refuse to hire a job candidate who failed a drug test, even if it was the result of legal marijuana use. Although the passing of Proposition 64 in 2016 did not impact the holding in Ross (in fact, the law explicitly preserved its holding), societal attitudes towards marijuana have shifted significantly since the Court’s decision.
Starting on January 1, 2024, AB 2188 will amend FEHA to prohibit discrimination based upon an employee’s use of cannabis off the job and away from the workplace, partially superseding Ross. The bill does not prohibit an employer’s use and reliance on pre-employment drug screenings that determine current impairment or active levels of tetrahydrocannabinol (“THC”). It also has some exceptions, including for workers in the building and construction trades and applicants and employees subject to federal background investigations or clearances.
The Equal Employment Opportunity Commission (EEOC) recently settled charges of national origin discrimination and retaliation against Total Employment and Management (TEAM). This Washington employer instituted a “No Spanish” rule in its workplace. TEAM, a staffing company, agreed to pay $276,000 to settle the charges filed with the EEOC. According to the EEOC, TEAM imposed a “No Spanish” rule without an adequate business necessity. Also, it fired five employees from two locations when those employees opposed the rule and continued to speak Spanish in the workplace.
As part of the settlement, TEAM agreed to revise and update its policies, provide them in English and Spanish, and train its employees on harassment and discrimination.
Under the EEOC guidance and federal law, “English Only” employment rules violate Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination unless the employer can demonstrate a business necessity. In addition, these rules are considered discriminatory due to a disparate effect on employees who speak English as a second language or through disparate treatment against those same employees when they speak their language of birth and are disciplined or otherwise adversely affected.
EEOC regulations state that a rule requiring employees to always speak English is presumed to violate Title VII and will be closely scrutinized by the Commission. However, such a rule can be valid in very limited circumstances and usually only at certain times. Some situations the EEOC indicates might meet the business necessity requirement are the following:
Communicating with customers, coworkers, or supervisors who only speak English.
Employees must speak a common language in emergencies or other situations to promote safety.
For cooperative work assignments, the English-only rule is needed to promote efficiency.
To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.
Generally, such a rule cannot be applied to casual conversations between employees when they are not performing job duties.
Likewise, federal courts have upheld “English Only” rules when there is a potential for workplace danger, where a foreign language is being used to further hostility in the workplace, or when monitoring of employees by supervisors is necessary. Trends in these court decisions track the EEOC guidance—the business justification must be narrow and necessary, and those justifications are shrinking.
Employers considering any rule regarding establishing or limiting language in the workplace should consult with employment counsel before implementing such a rule. A facially neutral policy may be discriminatory when applied, and a believed business justification for such a policy may run contrary to recent decisions and guidance.
AB 1949: New requirement for employers to provide 5 days of bereavement leave
AB 1949 makes it an unlawful employment practice for a covered employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave (which need not be consecutive) upon the death of a family member. A “covered” employer is: (i) a person who employs 5 or more persons to perform services for a wage or salary; and (ii) the State and any political or civil subdivision of the State, including, but not limited to cities and counties. An “eligible” employee means a person employed by the employer for at least 30 days prior to the commencement of the leave. A “family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code Section 12945.2
The law provides that bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
The law requires that the leave be completed within 3 months of the date of death.
The law also requires employees, if requested by the employer, within 30 days of the first day of the leave, to provide documentation of the death of the family member.
“Documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
The general counsel of the National Labor Relations Board issued a memo this week clarifying one of the biggest open questions after the NLRB rules broad non-disparagement clauses were illegal.
The general counsel of the National Labor Relations Board issued a clarifying memo on Wednesday regarding the “scope” of a February ruling by the federal agency’s board that said employers cannot include blanket non-disparagement clauses in their severance packages, nor demand laid-off employees keep secret the terms of their exit agreements.
Such provisions have become increasingly common in recent years, muzzling employees and otherwise stopping them from speaking up about working conditions by dangling a few weeks or months of pay in front of them at the exact moment they are losing their job.
In the memo sent to regional offices, General Counsel Jennifer Abruzzo addressed what had been one of the largest questions that resulted from the ruling: Does it retroactively void broad non-disparagement agreements that were signed prior to the February ruling? Abruzzo wrote that the decision does, in fact, have “retroactive application,” meaning that already-signed and “overly broad” non-disparagement clauses are no longer considered valid by the NLRB.
Abruzzo is charged with prosecuting cases against employers who break the rules. She said an unlawful clause would likely not invalidate an entire severance agreement, as the regional offices tend to “seek to have [the unlawful portions] voided out as opposed to the entire agreement.”
However, employers who attempt to continue to enforce illegal severance clauses could face trouble from the NLRB. While the NLRB typically has a six-month statute of limitations for labor violations, businesses who attempt to enforce illegal parts of an older severance agreement would be committing a contemporary “violation” and subject to enforcement, Abruzzo said.
Additionally, Abruzzo provided clarification around what non-disparagement and confidentiality clauses may still be considered legal. The provisions, she said, must be “narrowly-tailored.” In the case of confidentiality, the clause must serve to keep proprietary trade information secret “for a period of time based on legitimate business justifications may be considered lawful,” but must not have “a chilling effect that precludes employees from assisting others” or communicating with the media, a union, or other third parties.
With regards to non-disparagement, Abruzzo similarly said the provision must not only be both “narrowly-tailored” and “justified,” but limited to statements by an employee that fit the legal definition of defamation, meaning they are purposefully and maliciously untrue.
In February, the NLRB ruled that in a case regarding a Michigan hospital, laid-off workers had been asked to sign unnecessarily burdensome severance contracts that violated their labor rights. The decision overturned a pair of Trump-era decisions which had temporarily upended the previous “longstanding precedent” by saying that more broad non-disparagement and confidentiality clauses were lawful.
The NLRB this year said that the Trump era decisions were wrong and that the laid-off hospital employees had been asked to “overly broad non-disparagement and confidentiality clauses” that unnecessarily restrained their NLRB rights. The decisions led to questions about what the decision meant for people who signed similar non-disclosure agreements in the interim.
Effective January 1, 2018, California’s Equal Pay Act prohibited employers, with one exception, from seeking applicants’ salary history information and required employers to supply pay scales upon the request of an applicant.
SB 1162 expands upon these pay transparency measures and counters workplace discrimination by requiring employers of 15 or more employees to: (i) include the pay scale for a position in any job posting; (ii) provide pay scale information to current employees and to applicants upon reasonable request; and (iii) maintain employee records, including job titles and wage rate histories, through the term of each employee’s employment and for 3 years after their employment has ended.
SB 1162 also expands covered employers’ pay data reporting obligations. Since 2021, California law has required private employers who have 100 or more employees and who must file a federal EEO-1 to file an annual pay data report with the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) on or before March 31 of each year. SB 1162 broadens these obligations in several significant ways.
First, the bill expands who must file a pay data report so that all private employers with 100 or more employees will be required to file a pay data report regardless of whether they also must file a federal EEO-1, and private employers with 100 or more employees hired through labor contractors will be required to submit a separate pay data report regarding these contracted workers.
Second, in addition to demographic and pay band information, employers’ pay data reports will also need to identify, within each job category, the median and mean pay rate for each combination of race, ethnicity, and sex.
As climate-related disasters increase in intensity and frequency, employees are regularly expected (and sometimes required) to place their lives in danger by continuing to work through these calamities. For example, during recent tornadoes in Illinois, Amazon not only refused to let workers leave a warehouse in the expected route of a tornado but also refused to allow its workers to access communications devices to track the dangerous conditions. The warehouse was destroyed, and several workers were killed. Similarly, during the Getty Fire, domestic workers and gardeners were required to continue working in Los Angeles evacuation zones. Agricultural workers in Sonoma County were required to continue picking produce during the Atlas/Tubbs fires. There were landscapers and housekeepers, along with children, among the 23 lost and 167 injured in the 2018 Montecito debris flow.
SB 1044 was designed to enhance workers’ protections during natural disasters by requiring employers to allow workers to have access to their cell phones or other communications devices during these emergencies to seek emergency assistance, assess the safety of the situation, or communicate with a person to confirm their safety and by permitting workers to leave a workplace or worksite within an area affected by an “emergency condition” if they feel that they must do so for their safety.
“Emergency condition” is defined to mean the existence of either of the following: (i) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (ii) an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. SB 1044 specifically excludes a health pandemic from the definition of “emergency condition.”
Sadly, the California Chamber of Commerce designated this common-sense prophylactic as a “job killer,” as it routinely does with laws designed to protect employees and consumers, and many Republicans voted against it.
On February 2, 2023, the Biden-Harris Administration, to mark the then-upcoming 30th anniversary of the Family and Medical Leave Act (“FMLA”), announced a series of new actions to support and advance America’s federal public employees. In this regard, President Biden issued a Memorandum For The Heads Of Executive Departments And Agencies, strongly encouraging those heads to provide access to leave for Federal employees when they need it, including during their first year of service, to ensure employees are able to bond with a new child, care for a family member with a serious health condition, address their own serious health condition, help manage family affairs when a family member is called to active duty, or grieve after the death of a family member. President Biden further directed the Office of Personnel Management is further directed to provide recommendations regarding “safe leave” to support Federal employees’ access to paid leave and leave without pay for purposes related to seeking safety and recovering from domestic violence, dating violence, sexual assault, or stalking. Those may include obtaining medical treatment, seeking assistance from organizations that provide services to survivors, seeking relocation, and taking related legal action.
For decades, employers have used non-competition agreements to not only artificially lower the salaries of their employees but also to render those employees into something akin to indentured servitude.
On January 5, 2023, the Federal Trade Commission proposed a new rule – accessible at https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking — that would ban employers from imposing non-competes on their workers, a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. The proposed rule provides that: “It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.” The proposed rule would also require the rescission of all non-competition agreements entered into before the date the new rule takes effect.
By stopping these unfair non-competition agreements, the FTC estimates not only that wages might be increased by nearly $300 billion per year but also that expanded career opportunities would abound for about 30 million Americans.
