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.
AB 2693 extends until January 1, 2024, employers’ obligation to provide notice to employees within one day of learning of a potential COVID-19 exposure in the workplace and, as an alternative to providing written notice to employees, now allows employers to post notice of a potential COVID-19 exposure. If an employer elects to post, it must display the notice where notices concerning workplace rules or regulations are customarily displayed.
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.
AB 2183 makes it easier for farmworkers to unionize. Until the passage of this new law, union elections usually took place on the growers’ properties. The new measure allows farmworkers to vote by mail or fill out a ballot card to be dropped off at Agricultural Labor Relations Board.
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 2134: Information on access to reproductive healthcare for employees of religious employers
Despite countless offensive and degrading decisions from the U.S. Supreme Court diminishing access to safe and affordable reproductive healthcare over the last several years, California Democrats continue to take measures to secure access to abortion services and contraceptives for their constituents. Under AB 2134, if a religious employer’s healthcare coverage fails to provide employees with abortion and contraceptive coverage or benefits, the employer must provide its employees with written information regarding abortion and contraceptive services that may be available to them at no cost through the California Reproductive Health Equity Program. AB 2134 also requires the Department of Industrial Relations to post to its website information regarding abortion and contraception benefits available through the program.
AB 2068: Employers required to post Cal/OSHA information regarding citations or orders in English and other specified languages
Employers must already post Cal/OSHA citations in English in places readily seen by all employees. Now, AB 2068 expands worker access to these disclosures by requiring Cal/OSHA citation notices to be in English as well as the top 7 non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Survey, as well as Punjabi (if not already included in the top 7). Employers that fail to post citations in all required languages may be subject to (further) citation by Cal/OSHA.
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.
AB 1576: Superior Court lactation rooms beginning July 1, 2024
Until AB 1576, nursing parents who visited California Superior Courts had no choice but to pump or feed their babies while sitting on a toilet in the courthouse bathroom or in the hallway across from their adversaries. This includes nursing lawyers, whose work requires spending hours tethered to the courtroom in hearings and trials.
Fortunately, beginning July 1, 2024, California Superior Courts will be required to provide court users, including lawyers and litigants, with access to a lactation room in any courthouse which a lactation room is also provided to court employees. The bill requires the lactation room to meet the requirements imposed upon an employer with respect to providing a lactation room for employees.
