Protecting individual privacy rights dates back to the Bill of Rights. While James Madison probably wasn’t contemplating wire tapping and computer monitoring, the fundamental right to protect our personal information is clearly articulated.
In the last 230 years since the Bill of Rights was ratified, there has been significant legislation enacted on both federal and state levels to further address privacy rights. Most of this legislation, however, is specific to a particular type of information at issue, such as health-related or financial information or data. As such, our privacy laws currently consist of a patchwork of state and federal laws with no overarching federal law governing data privacy.
The patchwork system has its pros and its cons, but one of the downfalls is that employers are expected to adhere to various laws that apply to them because of their industry, location, the type of information they use in conducting business, and perhaps the people to whom they market. Given our global reach through the internet and technology, it’s important to continue to know and understand existing privacy laws, and to be aware of those coming down the pike given that new legislation can require businesses to make significant changes in systems, software or practices.
The recent passing of the European Union’s General Data Protection Regulation (GDPR) had many employers questioning whether it has any application to them. It’s possible that GDPR could impact employers with a global market or presence, but employers who neither conduct business nor market to companies in the European Union are not likely to be impacted by this law. New legislation is taking place closer to home, however. The California Consumer Privacy Act (CCPA), which goes into effect January 1, 2020, is intended to protect privacy rights of consumers, and to give consumers control over when, how and for what purposes their personal information is being used. Importantly, the CCPA will apply to companies that do business or handle data pertaining to California consumers.
Each state currently has some version of a privacy law, but many simply require companies to provide notification in the event of a breach. Many states have passed more substantial legislation in the past year, and still more are working to do so. In the absence of federal legislation, this trend will likely continue.
To be clear, the absence of federal legislation over data privacy is not for lack of proposed legislation—which has been plentiful. Not surprisingly, a significant point of contention is over the interaction between federal and state data privacy laws, and whether federal law will preempt state law.
For now, though, employers need to be mindful of the privacy laws that impact them, including the Fair Credit Reporting Act (FCRA) and the Health Insurance Portability and Accountability Act (HIPAA). They also need to be aware of relevant state laws to make sure that they are in compliance with existing laws as we wait for what’s to come in this evolving area of the law.
If you have questions about the applicability of data privacy laws, contact us.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace. In addition to providing practical solutions to employment law matters, Hannah has extensive private practice experience. Her focus included early intervention advice and solutions to employers, as well as representing them in the defense of administrative claims. She now works on a team dedicated to providing solutions for employment law and compliance matters for employers of all sizes. Hannah graduated from William Mitchell College of Law, after receiving a Bachelor of Arts degree from Winona State University.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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