CCPA Update – Maybe Employees Are “Consumers” After All – Employee PI is Still In Play
Employers, you are not out of the CCPA woods yet.
If you have been tracking the proposed amendments to the California Consumer Privacy Act (CCPA), you know that businesses and stakeholders have been clamoring to shape the new sweeping law in a number of ways. We reported earlier this year on some of the potential changes approved by the California Assembly Privacy and Consumer Protection Committee, which moved on for further consideration. Upon arrival at the Senate Judiciary Committee, several of these business-friendly changes met some resistance, including AB 25 which generally would have excluded employee personal information from being covered under the CCPA.
While employers had hoped AB 25 would amend the CCPA to exclude information gathered in the employment context outright, on July 9, 2019, the California Senate Judiciary Committee clarified that will not be the case.
As we previously noted, the Privacy and Consumer Protection Committee in April unanimously approved AB 25 which sought to modify the definition of “consumer” under the CCPA to exclude “a natural person whose personal information has been collected by a business in the course of a person acting as a job applicant to, an employee of, a contractor of, or an agent on behalf of, the business, to the extent the person’s personal information is collected and used solely within the context of the person’s role as a job applicant to, an employee of, a contractor of, or an agent on behalf of, the business.”
A coalition in opposition to AB 25 expressed concerns that the exemptions go too far in eroding the rights of employee consumers, especially in light of current and future workplace monitoring practices. In response to these concerns, the bill’s author, Assemblymember Ed Chau, agreed to amend AB 25 to clarify that while employee data would be excluded from many of the CCPA’s requirements (including permitting consumers to request: the deletion of their personal information; the categories of personal information collected; the sources from which personal information is collected; the purpose for collecting or selling personal information; and the categories of third parties with whom the business shares personal information), employers subject to the CCPA would still be required to inform consumers (including employees) as to the categories of personal information they collect and the purposes for which such personal information shall be used.
Notably, AB 25’s exemption for employee data would not apply to the CCPA’s subdivision which establishes a private right of action, including those brought as a class action, for any consumer whose nonencrypted or nonredacted personal information is subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices. This private right of action establishing statutory damages permitting the recovery of damages in an amount not less than one hundred dollars ($100) and not greater than seven hundred and fifty ($750) per consumer per incident or actual damages, whichever is greater.
To afford business and consumer groups time to develop additional legislation to address concerns about employee personal information, Assemblymember Chau further revised AB 25 to specify that the exemption for employee data would only be effective for the 2020 calendar year and would be inoperative on or after January 1, 2021.
As amended, AB 25 unanimously passed through the Senate Judiciary Committee and will now go to the Senate Appropriations Committee, and if passed, to a full Senate for a final vote. AB 25’s amendments highlight the growing recognition of privacy interests in the employment context and the need for businesses to continue to prepare for the CCPA’s effective date.