Employers with operations in California should be aware of the California Consumer Privacy Act ("CCPA"), a new privacy law that applies to data collected about California-based employees. The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. In the coming months we will be releasing a series of articles that will help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance.
The CCPA was enacted in early 2018 as a political compromise to stave off a poorly drafted, and plaintiff friendly, ballot initiative. Although the CCPA is scheduled to go into force in early 2020, there is a great deal of confusion regarding the requirements of the CCPA, including the degree to which it aligns with other privacy regulations such as the European General Data Protection Regulation (“GDPR”). In addition, because the CCPA refers to “consumers” many HR professionals don’t realize that the Act, as currently drafted, applies to data collected about California-based employees.
Employers who are complying with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. For US employers who have not had to comply with the GDPR, the requirements of the CCPA for California-based employees will likely require a new analysis of the treatment of employee-data and updated or new data policies.
To help address that confusion, BCLP published the California Consumer Privacy Act Practical Guide, and is publishing a multi-part series that discusses the questions most frequently asked by clients concerning the CCPA.
Only the term “personal information” is defined within the CCPA. It refers to any information that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”1 That said, the term “personal data” is used instead of the term “personal information” within the CCPA’s definition of “processing” which is defined as “any operation or set of operations that are performed on personal data . . . .”2 It is not clear whether the change in terminology was intended to impart some meaning. The most plausible explanation is that the drafters of the CCPA copied the definition of “processing” from the GDPR (which has a near identical definition of “processing”) and forgot to replace the word “personal data” (a term used within the GDPR) with the term “personal information.”3
It is important to note that the terms “personal data” or “personal information” are used in other statutes and regulations in very different contexts and with very different meanings. For example, the term “personal information” is defined under several other states statutes as referring only to name in combination with a small sub-set of data fields viewed by legislators as being particularly sensitive. For example, the state of Maryland defines the term as follows:
“an individual’s first name or first initial and last name in combination with any one or more of the following data elements, when the name or the data elements are not encrypted, redacted, or otherwise protected by another method that renders the information unreadable or unusable: (i) A Social Security number; (ii) A driver’s license number; (iii) A financial account number . . .; (iv) An Individual Taxpayer Identification Number.4
The net result is that HR professionals should remember that there is no one definition of “personal information” or “personal data” and the meaning of those terms differs depending upon the context and the type of law at issue.
1. CCPA, Section 1798.140(o)(1)
2. CCPA, Section 1798.140(p).
3. Compare GDPR, Article 4(2).
4. Maryland Commercial Code § 14-3501(d)(1).