Preparing for the Virginia Consumer Data Protection Act

Beginning June 1, 2023, the Virginia Consumer Data Protection Act (CDPA) will come into effect for Virginia businesses and consumers.

What is the CDPA?

At its core, the CDPA is a data privacy law intended to provide guardrails on how businesses use and store the data of Virginia consumers. Virginia was the second state to pass a state data privacy law after California’s California Consumer Privacy Act (CCPA).

The CDPA will apply to covered businesses that conduct business in Virginia or affect Virginia commerce through targeting products and/or services to Virginia residents.  For the CDPA to apply to a company, it must either:

  • Control or process the personal data of at least 100,000 consumers during a calendar year; or
  • Process the personal data of at least 25,000 consumers and derive more than 50 percent of their gross revenue from selling personal data.

Personal data in this context includes “any information that is linked or reasonably linkable to an identified or identifiable natural person.”

What are the CDPA requirements?

The CDPA draws on concepts from the California Privacy Rights Act, CCPA, and the General Data Protection Regulation (GDPR) by establishing consumer rights relating to Privacy.

The main areas of the CDPA that businesses should prepare for are as follows:

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After the Supreme Court’s Ruling in Dobbs, Employers Explore Options in Providing Travel-for-Care Benefits

In the wake of the U.S. Supreme Court’s decision in Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, et. al., employers across the country have faced uncertainty in how to navigate the various federal and state laws regarding health-related services for their employees.  This is particularly challenging for employers in states that have laws that provide for criminal liability.  The Dobbs decision may impact how employers modify their employee benefit plans or create new plans to cover the cost of travel and lodging for medical care, including abortion, that require travel out of state. 

Texas’ bounty law is likely the most novel and we have received many questions on whether a company could face criminal liability under that statute for providing benefits to travel of state.  Texas Senate Bill 8 prohibits physicians from performing or inducing abortions if the physician detected a fetal heartbeat or failed to perform a test to detect a fetal heartbeat. Notably, this law authorized a private civil right of action – allowing any individual in the state of Texas to bring a civil action against any person [which while undefined in the Bill, in other contexts in the Texas code, does include corporations] who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described in subdivision (1) or (2).

See TX SB8 Sec. 171.208

If a company wanted to offer coverage for procuring abortions in other states through its health benefit plans, there are several legal considerations that the company should be aware of.  First, under TX SB8 Sec. 171.208 (2), it is unlawful for any individual to aid or abet an individual in procuring an abortion. The Texas statute specifically prohibits “abortion[s] of unborn child[ren] with detectable fetal heartbeat[s]” and outlaws the conduct of physicians that “knowingly perform or induce an abortion on a pregnant woman if the physical detected a fetal heartbeat.” The statute itself defines a physician as “an individual licensed to practice medicine in this state.” So, the violations referenced in the statute arguably are limited only to those abortions conducted contrary to the statute by Texas physicians. If an organization’s health plan allows, as a benefit, costs to be recovered for traveling to procure an abortion in another state – then that would not be an action that would incur civil liability by a Texas physician. The statute legislates that abortions performed by Texas physicians are unlawful; it does not refer to travel to other states, and no court has yet opined on the scope of the statute in that context.  But, even if a lawsuit was brought under that theory, the company could raise the general presumption against extraterritorial application of state law.   

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Maryland Joins a Number of States by Enacting a Paid Family and Medical Leave Law

Maryland recently became the tenth state to enact a paid family leave law – joining California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington, as well as the District of Columbia and San Francisco.  Although the legislature passed the Maryland Time to Care Act of 2022 by a supermajority vote on March 31, 2022, Governor Hogan opposed the bill and vetoed it on April 8, 2022.  Just one day later, however, the legislature voted to override Governor Hogan’s veto by an overwhelming majority.  

Although the bill will be phased in over the course of the next two-and-a-half years, Maryland employers should pay close attention to the law and the regulations that the Maryland Department of Labor will be implementing within the next year.  To get ahead, employers should proactively make plans to revise their current leave policies and reach out to their HR and payroll providers to ensure that they are prepared to handle the necessary payroll tax contributions.

Effective Dates and Roll-Out of the Act

Similar to how the District of Columbia and other jurisdictions implemented their paid family leave laws, the law will be phased in over the course of several years.  Specifically, the Act establishes a Family and Medical Leave Insurance Fund that will require all employers with 15 or more employees, all employees, and all self-employed individuals that elect to participate in the program to make contributions a fund beginning October 1, 2023.  Notably, employers with less than 15 employees are not required to contribute to the fund, but employees of those small employers will still be required to contribute to the insurance fund.

The contribution rates will be set by the Maryland Secretary of Labor by June 1, 2023.  Covered employees will be eligible to claim and receive benefits approximately a year-and-a-half later on January 1, 2025.   The funding requirements and employer/employee contribution rates will also be periodically reviewed and subject to change based on bi-annual studies and recommendations by the Maryland Secretary of Labor.

Coverage and Qualifying Events under the Act

The Act defines “covered employer” broadly to any person or governmental authority that employs at least one individual in the state of Maryland.  However, there are certain limitations on who is eligible to claim benefits.  Covered individuals – i.e. employees eligible to claim benefits under the Act – are defined as employees who have worked at least 680 hours over the 12-month period immediately before the date that leave is to begin.

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Natural Hairstyles in the Workplace: The CROWN Act

“R-E-S-P-E-C-T. Find out what it means to me.” More than half a century after Aretha Franklin first sang those lyrics, state legislatures, local municipalities, and Congress are passing the Creating a Respectful and Open Workplace for Natural Hair legislation (“CROWN Act”). Before the flurry of legislation aimed at protecting natural hair, some appellate courts already applied the protections of Title VII liberally. In Jenkins v. Blue Cross Mut. Hosp. Ins., the 7th Circuit held a plaintiff’s EEOC charge sufficiently alleged race discrimination where plaintiff’s EEOC charge stated plaintiff’s boss denied plaintiff a promotion because plaintiff “could never represent [defendant] with [an] Afro.” 538 F.2d 164, 168 (7th Cir. 1976). Other courts, however, took a narrower approach. In EEOC v. Catastrophe Mgmt. Solutions, the 11th Circuit reasoned “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practice[,]” thereby upholding a race neutral grooming policy that prohibited dreadlocks. 852 F.3d 1018, 1028-34 (11th Cir. 2016). Indeed, as recently as 2018, the U.S. Armed Forces maintained grooming policies that prohibited natural or protective hairstyles commonly worn by Black servicemembers because the hairstyles were “unkempt.”

The CROWN Act

More than a dozen state legislatures already passed a variation of the CROWN Act Continue reading

Challenges to California’s Corporate Board Diversity Laws Continue

A number of lawsuits challenging California’s corporate board diversity laws are still working their way through litigation, even years after the legislation went into effect.

Senate Bill 826

In 2018, California enacted Senate Bill 826, requiring California-based publicly held companies to have a minimum number of women on their boards of directors.  Such boards needed to have at least one female director by the end of 2019.  By the end of 2021, boards needed to have two female directors if the corporation has five directors and three female directors if the corporation has six or more directors.  A corporation out of compliance faces a $100,000 fine for the first violation and a $300,000 fine for a violation in any subsequent year. 

Assembly Bill 979

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Congress Bans Private Arbitration for Sexual Assault and Harassment Cases

On February 10, 2022, the Senate passed legislation ending the use of forced arbitration in lawsuits involving sexual assault and harassment claims.  The bill – the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – passed the Senate by a voice vote just days after it passed the House by a vote of 335 to 97.  The legislation is now before President Biden, and it is expected that he will sign the bill soon. 

This law has been in dispute along partisan lines for nearly a decade, as Republican lawmakers had traditionally opposed the legislation.  However, the #MeToo movement, which included claims against some members of Congress in the past, paved the way for lawmakers to find common ground and resolve the partisan gridlock. 

The law will take effect immediately upon President Biden’s signature, and it will apply to any and all claims of sexual assault or harassment, as defined under federal, state, or tribal law, that arise or accrue after its enactment. Employers that currently use arbitration clauses to manage sexual assault and harassment claims should take steps to review and amend their practices accordingly and prepare for the potential that current and past allegations of sexual misconduct will become public.

Employers will be prohibited from implementing policies or contracts that funnel assault and harassment cases into private arbitration – meaning claimants have the right to file lawsuits in federal, state, or tribal court, which is open to the public.  The law also prohibits employers from using joint-action waivers prohibiting class actions. Therefore, parties are now able to collectively file class action lawsuits alleging widespread sexual assault and/or harassment.

The law raises several new considerations for employers about how to manage claims of sexual assault or harassment. The public nature of filing claims in court elevates the risk of reputational harm for employers, as well as increases liability risk due to the potential for a proceeding before a jury.  Due to the elimination of private arbitration for these claims and the increased risks, plaintiffs now have more leverage in settlement negotiations.

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Paid COVID-19 Supplemental Sick Leave Returns to California, Again

California Governor Newsom has signed legislation extending a new allotment of up to 80 hours of COVID-19 supplemental paid sick leave to California workers through new Labor Code Sections 248.6 and 248.7.  The leave is retroactive to January 1, 2022, and continues through September 30, 2022.  Small businesses that employ 25 or fewer workers are not covered by the legislation.   

Use of Sick Leave for Reasons Related to COVID-19

The legislation provides for up to 40 hours of COVID-19 supplemental paid sick leave for employees who are unable to work or telework for certain reasons related to COVID-19, including:

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[Webinar] NYC’s Private Employer Vaccine Mandate – Everything You Need to Know

On Tuesday, January 18, 2022 at 2 p.m. ET, join Kara M. Maciel and Dan C. Deacon for a webinar regarding NYC’s Private Employer Vaccine Mandate – Everything You Need to Know.

On December 19, 2021, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccine mandate which requires workers in New York City who perform in-person work or interact with the public for work to provide proof of vaccination before entering the workplace. The mandate did not provide much of a runway for employers to come into compliance, as employers had to make sure employees received their first vaccine dose by December 27th – just eleven days from the announcement.

It is also important to remember that all New York employers remain subject to the NY HERO Act, which requires employers to implement a written airborne infectious disease plan and certain exposure controls whenever the Health Commissioner declares a public health emergency involving an airborne infectious disease.

During this webinar, we will provide a detailed analysis of this latest development and answer key questions including: Continue reading

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

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California Adds Increased Meal/Rest Period and Workplace Safety Protections for Warehouse Employees Subject to Production Quotas

On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to.  Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701.  Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.

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