Fenton & Keller updates that include information about events, seminars and developments at the firm.
Fenton & Keller’s News and Events section is a resource for learning about firm news, the seminars and presentations we offer, and our involvement in the Central Coast community. Our attorneys and staff members contribute to the vitality of our community through active participation in a variety of professional and service activities. We are committed to providing education and training to clients and the public concerning relevant and current legal topics.
Workplace Law & Newsletters
Workplace Implications of Emerging Consumer Privacy Laws
May 22, 2019
Question: Someone told me that California has a new privacy law. What does this mean for my business?
Answer: There is an increasing belief that we have lost control of our personal information. In 2018, California passed a sweeping consumer privacy law to combat recent privacy scandals, including the Cambridge Analytica incident involving Facebook user data. The new law is complex and its language creates many ambiguities for regulators, businesses, and consumers. Although lawmakers are still attempting to refine and clarify the law, its fast-approaching January 1, 2020, effective date makes it important to understand the law as it is currently written.
The new law—the California Consumer Privacy Act (“CCPA”)—affords California residents an array of new rights, starting with the right to be informed about what kinds of personal data companies have collected and why it was collected. Among other new protections, the law stipulates that consumers have the right to delete their data, say no to the sale of their personal information, be free from discrimination, and seek legal action against businesses that violate these rights.
At first blush, it appears the CCPA only protects the privacy of consumers. However, the law’s broad definition of “consumer” includes employees as long as they are natural persons who are California residents because they are either domiciled in California for a temporary or transitory purpose or are in California for more than a temporary or transitory purpose. While the application of the CCPA to employee data remains an open question, employers should be ready to face the law’s direct implications for employment-related data.
With some limited exceptions, employers must comply with the CCPA if they satisfy at least one of the following three criteria: (1) have annual gross revenues in excess of $25 million; (2) derive at least half of their annual revenues from selling consumers’ personal information; and (3) handle, buy, share, or sell personal information belonging to at least 50,000 California residents annually. The law clearly reaches large employers, but even small businesses might find themselves covered by the CCPA if they have significant amounts of data.
For example, under the CCPA, employees’ performance reviews, compensation information, and most human resource records may constitute “personal information.” Non-employee California consumers (as defined under CCPA), including customers or clients, will also likely count towards the 50,000 threshold that mandates compliance. In addition, because “personal information” as defined under the CCPA includes IP address and device identification numbers captured by operating an application or website, the 50,000 number could be relatively easily achieved by many employers. If an employer finds itself subject to the CCPA, its employees and consumers will have numerous rights under the CCPA.
Still, it is not clear if the CCPA is intended to protect employment-related data, and there have been efforts to amend and clarify the legislation before it goes into effect on January 1, 2020. One such amendment is Assembly Bill 25, which would specifically exclude employees and job applicants from the definition of “consumer” under the CCPA. In addition, the Attorney General is working on regulations to implement the CCPA that may clarify the reach of the CCPA.
While the proposed amendment and expected regulations may alleviate some uncertainty, employers should consider proactively reviewing their privacy policies and practices and watching for updates on regulations that may make the CCPA applicable to employee data.
Harassment, Discrimination and Retaliation Prevention Training Now Required for All California Employers
March 29, 2019
In September 2018, Governor Brown signed SB 1343, which expands mandatory sexual harassment prevention training to require California businesses with five or more employees (including temporary and seasonal employees) to provide sexual harassment training to all employees by January 1, 2020. Importantly, employers must count independent contractors in determining if they have five or more employees, and even if the employees or contractors work at different locations or all work or reside outside of California, they must be counted.
New regulations published by the Department of Fair Employment and Housing require that employees be trained during the calendar year 2019, so employees who were trained in 2018 or before will need to be retrained before January 1, 2020. Supervisors must receive at least 2 hours of sexual harassment prevention training, and non-supervisory employees must receive at least 1 hour of training. Training of supervisors must occur within six months of the individual becoming a supervisor, and then once every two (2) years.
Please contact Fenton & Keller if you would like to schedule sexual harassment prevention training at your worksite. Fenton & Keller will also be offering legally compliant sexual harassment prevention training for supervisory and non-supervisory employees in English on March 1, 2019 and in Spanish on February 27, 2019. For more information visit www.fentonkeller.com, email cstoll@fentonkeller.com, or call 831-373-1241.
Article written by Marco Lucido.
California Workplace Privacy Rights
December 31, 2018
Question: What privacy rights do my employees have and how can I comply with the laws protecting privacy rights?
Answer: In light of recent data breaches, people are increasingly concerned with protecting their privacy rights. California employees are no exception. The California Constitution identifies certain inalienable rights for citizens, including “pursuing and obtaining safety, happiness, and privacy.” Additionally, employees in the state are covered by statutes that protect their privacy inside and outside of the workplace. To comply with these laws, employers must be aware of the state’s stringent privacy rules and should establish policies designed to comply with the law.
Employers have a non-waivable duty to protect personal employee information. Businesses that maintain personal information about a California resident are required to protect that information from, among other things, unauthorized access, use, or disclosure. Personal information includes, but is not limited to, an individual’s name, social security number, driver’s license or identification card number, financial account number, medical information, health insurance information, and username or email address in combination with a password. Additionally, employers have a duty to disclose security breaches of computerized personal information. Employers who breach these duties may be liable for monetary damages.
California employers should exercise care in connection with workplace monitoring, such as video surveillance and listening to employee telephone conversations. Employers are prohibited from video monitoring work areas where employees reasonably expect privacy such as dressing rooms, locker rooms, showers, toilet facilities, and possibly even break or lunch rooms. Employers cannot monitor or record personal employee phone calls or calls made between parties in California without the parties’ consent, except in limited situations. When employers have a legitimate business purpose for video or telephonic monitoring, it is a best practice to disclose the monitoring to employees in a handbook, memo, sign, or by other means that will be understood by employees.
Additionally, California imposes limits on conducting background checks such as credit or criminal history reports. An employer may not ask an outside agency to perform a background or credit check on an applicant or employee in California without first giving proper notice to the individual, obtaining the individual's consent, and giving the individual an opportunity to request a copy of the report. The employer's notice must be clear and conspicuous on a form that contains only the disclosure. California law also requires new consent each time an investigative report is sought during employment if the report is for purposes other than suspicion of wrongdoing or misconduct. California recently enacted a “ban-the-box” law that prohibits employers from asking job applicants about their criminal history until after a conditional offer of employment is made. Before taking any adverse employment action based on a report, employers must follow very specific procedures in writing.
To ensure compliance with California’s employee privacy laws, employers should implement workplace policies that communicate the employer’s practices and business reasons for them, and obtain advance written employee consent when required by law. Employers should also implement appropriate safeguards for storing, using, and disposing of private employee information. Finally, employers should not infringe on employee privacy except where necessary to serve the employer’s legitimate business purposes, and should choose the least intrusive means available to accomplish that purpose.
WORKPLACE LAW – Risks of Using Social Media to Screen Applicants
September 21, 2018
Question: As a small employer, I do not perform pre-hire background checks, but I have been google-searching candidates and looking at their Facebook profiles before making hiring decisions. I am shocked by the amount of information available on the internet. Are these types of screenings risky?
Answer: Yes. To illustrate why employers should be wary of performing these types of pre-employment searches, consider the appropriateness of asking the following questions during a job interview: “Are you pregnant?” “With what gender do you identify?” “Do you have a criminal record?” “Have you had any recent medical issues?” While most employers quickly recognize that asking an applicant such questions is unlawful, few recognize that performing a pre-employment social media search may elicit the same type of information.
According to a 2017 national survey conducted by the job search website CareerBuilder, approximately 70% of employers use social media to screen candidates before hiring, up from 60% in 2016. According to the survey, while 60% of employers who use social media screening are looking for information that supports the candidate’s qualifications for the job, 50% are looking to determine whether the candidate has a professional online persona, and 24% are looking for a reason not to hire a candidate. Although the statistics imply that a majority of employers are using pre-hire social media searches for reasons that appear to make sense, such searches can present significant risks from a legal standpoint.
A social media search often reveals information about the candidate’s protected characteristics that employers are not permitted to consider in making hiring decisions, and about which the employer would have no knowledge if the search had not been conducted. If the employer does not hire the candidate, the candidate can argue that it was because of the protected characteristics that the search revealed, and the employer is placed in the difficult position of proving that its decision was based on a legitimate, non-discriminatory reason.
To protect itself from a claim of discrimination, an employer should limit requests for information during the pre-employment process to details essential to determining a person’s qualifications to do the job, with or without reasonable accommodations. California law specifically prohibits employers from requesting or considering information about an applicant or employee that would disclose the individual’s membership in a protected classification (i.e. national origin, religion, age, sexual orientation), except in very limited circumstances where the characteristic is related to a bona fide occupational qualification. The Department of Fair Employment and Housing (DFEH) publishes guidance on what employers can and cannot ask applicants and employees, which is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_PEI-Guidelines.pdf. In terms of a social media search, this means that employers should limit themselves to looking on professional networking websites like LinkedIn or BranchOut, and avoid sites like Facebook, as well as general Google searches.
Firm News & Announcements
For the 4th Year in a Row, Fenton & Keller Named County’s Top Law Firm in Monterey County Weekly Reader Polls
May 8, 2019
In its March 28, 2019 edition, the Monterey County Weekly announced that its readers have once again voted Fenton & Keller the Best Law Firm in Monterey…
Sara Boyns Named 2019 Businesswoman of the Year
March 29, 2019
On January 15, 2019 the Salinas Valley Chamber of Commerce announced that Sara Boyns is receiving the Chamber’s Businesswoman of the Year Award. The Chamber’s…
Gladys Rodriguez-Morales Joins Fenton & Keller
March 29, 2019
The shareholders of Fenton & Keller are pleased to announce that Gladys Rodriguez-Morales has joined the firm as an associate attorney. Gladys’ practice…
Marco A. Lucido Joins Fenton & Keller
March 29, 2019
The shareholders of Fenton & Keller are pleased to announce that Marco A. Lucido has joined the firm as an associate attorney. Marco’s practice focuses on…
Ongoing Seminar
"Identifying And Preventing Sexual Harassment In The Workplace"
The employment law attorneys at Fenton & Keller offer training to identify and prevent sexual harassment and discrimination in the workplace. This interactive presentation is designed for small and large businesses, and satisfies the mandatory training and education requirements for all employees by businesses with 5 or more employees. These seminars can be held at the law offices of Fenton & Keller, 2801 Monterey-Salinas Highway, or at your workplace. For more information, please contact Corine Stoll at 831-373-1241 or at cstoll@fentonkeller.com to make your reservation.
Upcoming Seminars
Sexual Harassment Prevention Training (IN ENGLISH)
Date: May 22, 2019
- Registration begins at 8:30 AM;
- The first hour, beginning at 9:00 AM, will be for supervisors and non-supervisorial staff;
- The second hour will be just for supervisors.
Location: Red Lion Hotel (formerly Bay Park Hotel), Monterey, CA (MAP LINK)
The law firm of Fenton & Keller presents the California required workplace harassment and discrimination prevention training for supervisorial and non-supervisorial employees.
Presenter: Sara Boyns and Evan Allen
Registration Required.
Sexual Harassment Training (IN SPANISH)
Date: May 17, 2019
- Registration begins at 8:30 AM;
- The first hour, beginning at 9:00 AM, will be for supervisors and non-supervisorial staff;
- The second hour will be just for supervisors.
Location: Red Lion Hotel (formerly Bay Park Hotel), Monterey, CA (MAP LINK)
The law firm of Fenton & Keller presents the California required workplace harassment and discrimination prevention training for supervisorial and non-supervisorial employees.
OJO: Este entrenamiento también se presentará en español el 17 de mayo, 2019. Para más información, HAGA CLIC AQUÍ.
Presenter: Sharilyn Payne
Registration Required.
Fenton & Keller Staff and Attorneys Support and Serve Local Community Organizations
In a tradition begun by Lewis Fenton, Fenton and Keller is active and involved in giving back to the community and supports a variety of community organizations.