[BreachExchange] Big Data Breaches Shine Spotlight on Laws Impacting Employee Data Protection

[Audrey McNeil]

https://www.natlawreview.com/article/big-data-breaches-shine-spotlight-laws-
impacting-employee-data-protection

It seems like almost every week we learn of a massive new data breach,
risking the loss of thousands of individuals’ personal and confidential
information to a faceless hacker halfway around the world.

A quick internet search for the latest news about data breaches reveals the
sheer volume of information hacked or leaked on a daily basis, ranging from
our Social Security and bank account numbers to protected health
information, our consumer preferences, and more.  And, of course, where
there are breaches, there is litigation.  In fact, just this week, the
Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin)
ruled in favor of the plaintiffs in a consumer class action case where the
alleged hack resulted in disclosure of customer names, credit and debit
card numbers, expiration dates, and PINs.

But it’s not just consumer data that’s at risk – employers, too, collect
and maintain the same kind of sensitive information and data about their
employees as is often the subject of a data breach. A loss of control over
that employee data can have a significant adverse impact on an employer’s
credibility and bottom line.

State legislators are taking note of the risks and a patchwork of new data
privacy laws are popping up around the country. We’ve written before about
some existing laws impacting how employers collect and maintain employee
biometric data, such as fingerprints and facial or retinal scans. However,
the scope of information subject to the new laws’ protections is expanding,
as are the notification requirements and penalties for failure to comply.
To ensure compliance and protection of employee and consumer data alike,
employers should therefore take note of the following state laws coming
online in 2018:

- Alabama (effective June 1, 2018): The state’s Data Breach Notification
Act applies to any person or entity that uses sensitive personally
identifiable information about Alabama residents, including non-truncated
Social Security, driver’s license, passport, military ID or other unique ID
numbers issued on government documents, financial account numbers, medical
history information, health insurance information, personal usernames and
passwords, etc. The law also requires notification to an individual whose
protected data is hacked.

- Delaware (effective April 14, 2018): Delaware’s data breach law applies
to all entities that transact business in the state. The legislation
amended existing law to expand the definition of covered personal
information to include biometric (e.g., fingerprints, retinal scans, etc.)
and other health information, and imposed a 60-day notification deadline
following a data breach

- Oregon (effective June 2, 2018): The Oregon data breach law, which
applies to entities collecting personal information about any Oregon
resident, was amended to include biometric and health information as data
protected by the law, and requires that a breach be disclosed to the
affected individual(s) within 45 days of discovery.

- South Dakota (effective July 1, 2018): South Dakota’s data breach law
applies to any person or entity conducting business in South Dakota that
“owns or licenses” computerized personal or protected information of South
Dakota residents. The law protects a broad swath of information, including
“identification numbers assigned to a person by the person’s employer in
combination with any required security code, access code, password, or
biometric data.” Notice of a breach of any such data is required within 60
days of the breach, with fines of up to $10,000 per day per violation for
failure to comply.

Additionally, for employers doing business in Canada, new laws impose a
$100,000 per person per day penalty on any covered entity, including banks,
telecommunications and broadcasting companies, and trucking companies, for
failure to meet the federal notice of breach requirements.

And, of course, the much discussed European Union General Data Protection
Regulation (GDPR), applicable to companies that monitor or process the
personal data of European citizens, has strict requirements as to how such
personal data is collected, stored and maintained.

In short, because nearly all employers collect and maintain at least some
information subject to protection under the growing number of data
protection laws around the world, it is important to understand what data
is protected, any obligations imposed on employers regarding data that is
collected, and, in the event of a breach, how and when to notify the
affected individuals.
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