In the coming weeks we will be releasing a series of FAQs examining the California Consumer Privacy Act (“CCPA”)  of particular importance to employers.  These FAQs should 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.

By way of background, employers with operations in California should be aware of the CCPA, a new privacy law that applies to data collected about California-based employees.   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. Please see our recent blog post summarizing the CCPA for employers.

The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now.  For U.S. 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.

For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).  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.

BCLP also offers a complete compliance program to employers that includes a formal gap assessment as well as policies, procedures, and protocols to close identified gaps.

Question #3: As used in the CCPA, do the terms “personal data,” and “personal information” mean the same thing? 

Not necessarily.

HR professionals responsible for bringing their employer into compliance with the CCPA need to know 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.

Only the term “personal information” is defined within the CCPA.  As is discussed in Q-2 that term 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 or is a drafting oversight.  The latter appears to be the most plausible explanation, as the drafters of the CCPA likely copied the definition of “processing” from the GDPR (which has a nearly identical definition of “processing”) and forgot to replace the word “personal data” (a term used within the GDPR) with the term “personal information.”^[3]

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 a person’s 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]

We expect the California Attorney General will provide guidance on applying these terms through the CCPA rulemaking process.

[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).

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