CDF Labor Law LLP

Employee monitoring and tracking technologies implemented to ensure remote employee productivity for remote work during the COVID-19 pandemic need to be handled carefully. California employers seeking to learn whether employees surfed the internet or posted to social media for non-work purposes have increasingly used a variety of technologies, including keystroke monitors and other productivity software on phones and laptops, GPS trackers on work computers and work vehicles, and website monitoring on computers to monitor employees’ activities. Some employers monitor logins, activity on messaging, and collaborative programs and applications such as Slack, Google Workspace, Microsoft Teams, and Microsoft Office to track employees’ work time.

The Electronic Communications Privacy Act of 1986 (EPCA), passed by Congress, is the federal law that governs the monitoring of electronic communications in the workplace. The Act prohibits employers from intentionally intercepting and monitoring their employees’ work communications. However, there are some exceptions that allow employers to get around the Act. The first is the Business Purpose Exception, which permits employers and companies to intercept their employees’ work communications, when the company can prove that a legitimate business purpose exists. The second exception is when the employer receives consent from their employee allowing the monitoring and intercepting of the employee’s oral, wire, and electronic work communications. Employers often seek written consent during the orientation process as part of the onboarding documents.

The California Privacy Rights Act (CPRA) that amended California’s Consumer Privacy Act (CPPA) comes fully into force on January 1, 2023 and the California Privacy Protection Agency is supposed to start enforcing the CPRA on July 1, 2023.

Covered employers should spend sufficient time at the end of 2022 to prepare for compliance. Attached is a sample template Notice that employers may review to help move that process forward. Please note that any notice should be customized for an employer’s specific business and there is no “one size fits all” notice provision.

In ten days, on October 31, 2022, the United States Supreme Court will hear oral arguments in two very important affirmative action education cases. In Students for Fair Admissions v. Harvard College (Harvard), the plaintiffs argue that Harvard used race at multiple stages of the admission process in a manner that violates applicable law and disadvantages Asian applicants. In Students for Fair Admissions v. University of North Carolina (UNC), the plaintiffs argue that UNC utilized race in admissions in a manner that was not narrowly tailored enough to be legal and as a result, it disadvantages Asian applicants. More specifically, the plaintiffs in these cases claim that the admissions policies of these universities violate the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.

In ruling on these cases, the Supreme Court will likely consider whether to overrule the court’s 2003 decision in Grutter v. Bollinger, where the Supreme Court held that the University of Michigan could consider race, in a narrowly tailored manner, in its undergraduate admissions process as part of its diversity efforts and goal of obtaining a more diverse student body.

Following the passage of the California Privacy Rights Act (CPRA), for the past two years, employers have been partially exempt from many of the California Consumer Privacy Act’s (CCPA) mandates pertaining to applicants, employees, and contractors. However, effective January 1, 2023, the partial exemption expires and covered employers should be ready to fully implement CCPA and CPRA with respect to their workforce. Likewise, the B2B exemption will disappear on January 1, 2023, which previously excluded personal information gathered from individuals representing a business that conducted business with a CCPA-covered entity.

During this one-hour webinar on October 26, 2022, from 10-11:00 a.m. (Pacific), CDF attorneys Dan M. Forman, Linda Wang, and Dalia Z. Khatib will discuss the impact of CCPA/CPRA in the employment relationship, including:

– Covered Employers
– Personal Information and Sensitive Personal Information
– Data Mapping
– Notices to Employees
– Privacy Policies as They Pertain to Employees
– Requests from Employees Regarding Privacy Rights, Correction, and Deletion of Private Information
– Reasonable Security Procedures
– CPRA Proposed Regulations
– California Privacy Protection Agency
– Safe Harbor Notices, Enforcement Actions, and Projected Litigation

Register early to reserve your spot for this informative webinar!

CA MCLE, HRCI and SHRM credit pending.

Governor Gavin Newsom signed Assembly Bill 1949 into law on September 29, 2022. This bill requires covered employers to provide eligible employees with 5 days of unpaid bereavement leave for the death of an employee’s family member. AB 1949 goes into effect on January 1, 2023 and applies to private employers with five or more employees and to all public employers.

Under this new law, employees who have been employed by a covered employer for 30 or more days before the requested leave are eligible for bereavement leave related to the death of a family member.