We CCPA Through a Glass, Darkly: Employers' Compliance with the New California Consumer Privacy Act in 2020 and Beyond

K&L Gates LLP

K&L Gates LLP

On January 1, 2020, the California Consumer Privacy Act (the “CCPA”) will officially become California law. The law will impose myriad new obligations upon certain businesses regarding their collection, use, storage, and disclosure of consumers’ personal information.[1] While many observers have directed their attention toward the effects the CCPA would have on a business’s obligations regarding the collection, use, and retention of their California customers’ data, businesses have also expressed concern regarding how they should handle their California employees’ data. Businesses have prudently observed that the CCPA defines consumer broadly as “a natural person who is a California resident,”[2] which means CCPA applies not just to their California customers but also to their California employees.

California recently clarified employers’ CCPA obligations as to their employees. First, the California Legislature enacted AB 25, which exempted employers from all of the CCPA’s requirements with respect to their employees (with two significant exceptions) until January 1, 2021. California Governor Gavin Newsom signed AB 25 into law on October 11, 2019. Second, on October 10, 2019, California Attorney General Xavier Becerra released proposed regulations to the CCPA for public comment. This Alert examines the effects both of these actions will have on employers’ obligations toward their California employees’ personal information.

AB 25 Postpones Employer Obligations as to Most Employee Personal Information

As mentioned above, AB 25 exempts businesses from the majority of the CCPA’s requirements as they apply to employee data until January 1, 2021.[3] Specifically, AB 25 excludes from application of the CCPA “[p]ersonal information that is collected by a business about a natural person in the course of the natural person acting as a job applicant to, an employee of, . . . or contractor of that business to the extent that the natural person’s personal information is collected and used by the business solely within the context of the natural person’s role or former role as a job applicant to, an employee of, . . . or contractor of that business.”[4] Businesses should therefore be careful to ensure that information collected from their employees is indeed solely collected and used in the context of their employment or else this data may still be subject to the CCPA as of January 1, 2020. Furthermore, businesses should pay close attention to legislative developments out of Sacramento during 2020 because the California Legislature is expected to use the year-long deferment provided by AB 25 to consider and potentially pass distinct legislation that will address employers’ obligations with respect to their employees’ personal information.

Businesses should note, however, that AB 25 did not exempt employers from two significant provisions in the CCPA. Employers therefore are required to comply with these two provisions on January 1, 2020.The first provision, section 1798.100(b), requires the employer to inform the employee/job applicant either at or before the time it collects the employee’s data about the categories of personal information the employer is collecting and the purposes for which the categories of personal information will be used.

The second provision, section 1798.150, allows an employee whose personal information is accessed, stolen, or disclosed without the employee’s authorization because the company failed to implement and maintain reasonable security procedures and practices to bring a civil action against the company. This provision poses considerable liability risks to employers, particularly in the class action context, because the employer can face damages ranging from $100–$750 per employee per incident or the actual damages incurred, whichever amount is greater.[5] The statute permits the court discretion to consider a variety of factors in determining the appropriate amount of statutory damages, including “the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.”[6] Employers should therefore ensure that they have security measures in place to protect the dissemination of employee data and that these security measures are effective to diminish the likelihood of facing costly litigation.

Proposed Regulations Provide Greater Guidance to Employers

The attorney general’s office has also attempted to clarify businesses’ obligations under the CCPA by releasing proposed regulations that interpret the law, some of which will apply to employers’ treatment of employee personal information effective January 1, 2020, despite the deferral provided with respect to other provisions by AB 25. Although there are no regulations interpreting section 1798.150 to give greater clarity regarding the civil action provision, the Attorney General provides several clarifications regarding a company’s obligations as to customer notice under section 1798.100(b). This notice requirement applies to employees, and as mentioned above, is not deferred. The attorney general begins the regulations governing notice at collection to consumers by describing why the notice at collection exists: “to inform consumers at or before the time of collection of the categories of personal information to be collected from them and the purposes for which the categories of personal information will be used.”[7] For this reason, the attorney general states that the company’s notice at collection must be “designed and presented to the consumer in a way that is easy to read and understandable to an average consumer.”[8] The attorney general then specifies several design and presentation requirements to assist companies in their efforts to comply with their notice at collection obligations:

  • Use plain, straightforward language and avoid technical or legal jargon.
  • Use a format that draws the consumer’s attention to the notice and makes the notice readable, including on smaller screens, if applicable.
  • Be available in the languages in which the business in its ordinary course provides contracts, disclaimers, sale announcements, and other information to consumers.
  • Be accessible to consumers with disabilities. At a minimum, provide information on how a consumer with a disability may access the notice in an alternative format.
  • Be visible or accessible where consumers will see it before any personal information is collected. For example, when a business collects consumers’ personal information online, it may conspicuously post a link to the notice on the business’s website homepage or the mobile application’s download page or on all webpages where personal information is collected. When a business collects consumers’ personal information offline, it may, for example, include the notice on printed forms that collect personal information, provide the consumer with a paper version of the notice, or post prominent signage directing consumers to the web address where the notice can be found.[9]

The regulations also reiterate the CCPA’s requirement that a company must provide its employees with new notice each time it collects a new category of personal information belonging to employees or uses collected categories of personal information for a new purpose before the collection or use occurs.[10]

AB 25’s Effects on the Proposed Regulations Requires Further Clarification

Although the regulations provide a helpful start for employers in evaluating some aspects their remaining responsibilities under the CCPA, the regulations also create some confusion for employers in other areas. This confusion is significantly due to the AB 25’s enactment occurring one day after the release of the proposed regulations. Section 999.305 of the proposed regulations, for example, states that a business that fails to provide a consumer with notice at or before collection of the consumer’s personal information cannot collect personal information from the consumer.[11] An employer who failed to provide its California employees with notice of the categories of personal information it is collecting could therefore, arguably, not collect that information. This application directly conflicts with both federal and California law, each of which impose unique requirements on employers to obtain information from employees and maintain personnel records of those employees. Resolving conflict between the CCPA and federal/California laws is one of the major reasons that the California Legislature passed AB 25 and deferred application of the majority of the CCPA’s requirements to California employers until 2021. This regulation as currently constituted and as applied to employers resurrects some of the problems AB 25 attempted to extinguish.

Furthermore, there are several issues regarding what information needs to be included in the notice at collection because of AB 25’s exemptions. Section 999.305, for example, requires businesses to provide links to their privacy policies in the notice at collection.[12] Section 999.308 of the proposed regulations then outlines the requirements for a company’s privacy policy to be legally compliant, which include that a company’s policy must explain the customer’s rights to delete and/or opt-out of collection of personal information.[13] AB 25, however, provides that the CCPA provisions allowing customers to delete and/or opt-out of collection of their personal information do not apply when the company collects and uses the information solely within the context of the customer’s employment with the company. The regulations provide no guidance as to whether a company would need to provide its employees with a privacy policy that follows all of section 999.308’s requirements (including those that are not applicable to it), whether the company would need to provide a truncated version of the privacy policy (and if so, what provisions would need to be included and which ones could be omitted), or whether the company needs to provide its employees with a privacy policy at all so long as they provide the notice at collection. Similarly, the regulations do not clarify whether businesses are required to include “Do Not Sell My Personal Information” or “Do Not Sell My Info” links in the notices at collection to their employees in the aftermath of AB 25 as they are required to do for ordinary consumers.[14]


With the attorney general’s release of the proposed regulations to the public, the regulations are now in the notice-and-comment period. The attorney general is holding four public hearings in cities throughout California before the notice-and-comment period closes to receive input from stakeholders in the state regarding any changes that should be made to the regulations. The first public hearing will be in Sacramento on December 2, 2019, followed by Los Angeles on December 3, San Francisco on December 4, and Fresno on December 5. The hearings begin at 10:00 a.m. each day. The attorney general’s office requests all participants interested in attending the hearing to register online. The attorney general’s office has posted the location of each public hearing and how to submit written comments on its website. The notice-and-comment period for the proposed regulations ends on December 6, 2019, at 5:00 p.m., PST. Employers would be wise to attend, learn, and comment as they deem appropriate. Additionally, to the extent the Legislature considers either amendments to the CCPA or employer-focused data privacy legislation in 2020, employers would be prudent to provide input as they deem appropriate.


[1] K&L Gates has a robust privacy, data protection, and information management practice and frequently publishes articles on privacy law issues, including the CCPA. For more information on the firm’s capabilities in this area of the law, please see http://www.klgateshub.com/search/?search=privacy.

[2] See Cal. Civ. Code § 1798.140(g).

[3] See Cal. Civ. Code § 1798.145 (g)(1)(A).

[4] Id.

[5] See Cal. Civ. Code § 1798.150(a)(1)(A).

[6] Cal. Civ. Code § 1798.150(a)(2).

[7] Cal. Code Regs. tit. 11, § 999.305(a)(1) (proposed Oct. 11, 2019).

[8] Cal. Code Regs. tit. 11, § 999.305(a)(2) (proposed Oct. 11, 2019).

[9] Cal. Code Regs. tit. 11, § 999.305(a)(2)(a)–(e) (proposed Oct. 11, 2019).

[10] Compare Cal. Code Regs. tit. 11, § 999.305(a)(3)–(4) (proposed Oct. 11, 2019) with Cal. Civ. Code § 1798.100(b).

[11] See Cal. Code Regs. tit. 11, § 999.305(a)(5) (proposed Oct. 11, 2019).

[12] See Cal. Code Regs. tit. 11, § 999.305(b)(4) (proposed Oct. 11, 2019).

[13] See Cal. Code Regs. tit. 11, § 999.308(b) (proposed Oct. 11, 2019).

[14] See Cal. Code Regs. tit. 11, § 999.305(b)(3) (proposed Oct. 11, 2019).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.