The recently enacted California Consumer Privacy Act (“CCPA”
or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced
consumer protections for California residents against businesses that collect
their personal information. Generally
speaking, the CCPA requires that businesses provide consumers with information
relating to the business’ access to and sharing of personal information. Accordingly, businesses should determine
whether the CCPA will apply to them and, if so, what policies and procedures
they should implement to comply with this new law.
Application of the CCPA
Importantly,
the CCPA does not apply to all California business. The requirements of the CCPA only apply where
a for-profit entity collects Consumers’ Personal Information, does business in
the State of California, and satisfies one or more of the following: (1) has
annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2)
receives for the business’s commercial purposes, sells, or shares for
commercial purposes the personal information of 50,000 or more consumers,
households, or devices; or (3) derives 50 percent or more of its annual
revenues from selling consumers’ personal information. (California Code of
Civil Procedure § 1798.140(c)(1)(A)-(C).)
Thus, as a practical matter, small “mom
and pop” operations will likely not be subject to the CCPA, but most mid-size
and large companies should review their own books or consult with an accountant
to determine whether the CCPA applies to their business.
Rights Granted to Consumers
“Consumers,” as the term is used in
the CCPA, means “any natural person who is a California resident…” (California Code of Civil Procedure §
1798.140(g).) This broad definition
makes no carve-outs or exclusions for a business’s employees and, despite the
traditional definition of the term “consumer,” does not seem to require that
the resident purchase any goods or services.
This definition seems intentional and was likely designed to prevent
businesses from attempting to circumvent the requirements of the CCPA by
arguing that the personal information they collect does not belong to
“consumers” under the traditional meaning of the word.
While the term “consumer” includes
employees, Civil Code Section 1798.145(g) (effective January 1, 2020) makes a
limited time exception for “personal information that is collected by a
business about a natural person in the course of the natural persons acting as
… an employee 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 formal role as… an employee…” This exception is currently set to lapse on
January 1, 2021, at which time personal information relating to employees will
presumably be subject to the requirements of the CCPA. An example where employee personal information
could be subject to the CCPA is data related to employee benefits or
geo-location data gathered from employee use of rideshare programs like Lyft or
Uber.
Under the
CCPA, all Consumers possess the following four rights in relation to their
personal information:
The right to request that a business disclose to
the consumer the categories and specific pieces of personal information the
business has collected, the purposes for which the personal information is
used, and the sources from which the personal information was collected;
The right to request that a business delete any
personal information about the consumer which the business has collected from
the consumer;
The right to direct a business that sells personal
information about the consumer to third parties not to sell the consumer’s
personal information; and
The right to not be discriminated against by a
business as a result of exercising his or her rights under the CCPA.
Moreover, businesses are required
to disclose the existence of these rights to the consumers at or before the
point of collection of the information. Typically,
this is done pursuant to the business’ privacy policy which is disclosed to the
consumer at the outset of their relationship with the business. For 2020, businesses that must comply with
the CCPA should consider reviewing their existing privacy policies to ensure
that they provide all required notices and prepare policies and procedures for
handling requests from consumers for information relating to their personal information.
What Constitutes Personal Information?
“Personal
Information,” as that term is used in the CCPA, has an expansive definition and
includes all information that identifies, relates to, describes, is capable of
being associated with, or could be reasonably linked with a particular consumer
or household, and includes, but is not limited to:
Identifiers such as real name, alias, postal
address, unique personal identifier, online identifier, IP address, email
address, account name, social security number, driver’s license number,
passport number, or similar identifiers;
Characteristics of protected classifications
under California or federal law (religion, race, national origin, etc.);
Commercial information, including records of
personal property, products or services purchased, obtained, or considered, and
other purchasing or consumer histories or tendencies;
Biometric information;
Internet activity, including browsing history,
search history, and information regarding a consumer’s interaction with a
website, application, or advertisement;
Geolocation data;
Audio, electronic, visual, thermal, olfactory,
or similar information;
Professional or employment-related information;
and
Education information.
Regardless of whether a piece of
information is specifically identified as personal information under the CCPA,
the key inquiry is whether information may reasonably be linked with a
particular consumer or household. If so,
it likely constitutes personal information under the CCPA and is subject to the
consumer rights identified therein.
Penalties for Violation of the CCPA
Businesses
subject to the CCPA face onerous penalties for any violation. Specifically, if a business fails to cure any
alleged violation within thirty (30) days after being notified of alleged
noncompliance, the business will be subject to an injunction to stop its
noncompliant activity and face civil penalties of not more than ($2,500) for
each violation or ($7,500) for each intentional violation. It is unclear from the statute whether the
“each violation” language means a single instance of non-compliance regardless
of the number of consumers affected or whether each affected consumer
constitutes an individual violation.
Alongside these civil penalties, consumers whose personal information is subject to unauthorized access and exfiltration, theft, or disclosure as a result of the business’ violation of the duty to implement and maintain reasonable security procedures may bring a civil action to recover not less than $100 and not greater than $750. However, consumers must provide businesses with 30 days’ written notice of the violation and an opportunity to cure before bringing such a suit. While these penalties are relatively small on a per consumer basis, class-action lawsuits can be initiated, which could result in significant potential liability to non-compliant companies.
Conclusion
In advance of January 1, 2020, businesses should evaluate whether they are subject to the requirements of the CCPA and begin formulating policies and procedures to handle any potential consumer requests thereunder. Regulations relating to the Act are not yet finalized but businesses should keep an eye for finalized regulations in the next several months, which may provide guidance for implementing procedures that comply with the CCPA.
Kevin Bonsignore is an Associate at Wilke Fleury and focuses his practice on general business litigation, bankruptcy, and real estate.
Wilke Fleury attorneys Adriana Cervantes and Matt Powell recently prevailed at trial in a case involving a real property dispute in San Mateo County.
Wilke Fleury represented the owner of an apartment building in
an action against an individual who recently acquired the duplex on the
adjoining property. As set
forth in the pleadings, the Apartment’s owner, tenants, and invitees,
used the property in many ways including access, parking, and recreational
purposes for over five years, and the new owner had actual notice of that use
before the purchase. Nonetheless, the new owner insisted the Apartment had no
right to use the property, and filed an action to quiet title.
Wilke Fleury filed a cross-complaint on behalf of the Apartment
alleging that it had a prescriptive easement over the property.
Following a three day trial, which included viewing of the
property, the Honorable Nancy L. Fineman agreed with Wilke Fleury, ruling that
the Apartment had acquired a prescriptive easement over the property. On (October 24, 2019), Judge
Fineman issued a decision allowing the Apartment to continue its use of
the property.
The Court’s decision adopted every argument made by Wilke
Fleury and rejected every argument made by the buyer of the duplex.
Medical care continues to evolve given the use of electronic media and communication, and a number of large health care practitioners are turning to telehealth as a method to provide medical care to a greater number of patients who reside in California’s rural communities. Before embarking on a telehealth practice, a practitioner must first be licensed by the Medical Board of California if the care provided involves California residents. If a physician is not licensed in California and provides care to a California resident, the physician has violated California law and could be subject to substantial fines and possible imprisonment.
Telehealth Advancement Act
In addition to the above requirement that the physician must be licensed in California, a telehealth practitioner is subject to the Telehealth Advancement Act, which became effective on September 18, 2004. The Act describes the mode of delivering health care in a system that provides “real-time” interaction via “communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care.” Simply interacting via telephone and e-mail is insufficient to constitute providing “telehealth” medical care in accordance with California law.
Conduct an “Appropriate Prior Examination”
Moreover, to the extent that a patient is treated via “telehealth” medical services, a practitioner may prescribe a drug or device after conducting an “appropriate prior examination.” While various commentators have differing opinions of what constitutes “an appropriate prior examination,” it is commonly acknowledged that a physical examination is not the sole method of obtaining “an appropriate prior examination.” Thus, an interactive and sophisticated real-time communication system that has the capability of gathering current and detailed medical information — by way of a medical interview of a patient, allergies and medical history — could suffice as an “appropriate prior examination.” An exchange of random emails that are not detailed enough to constitute “an appropriate prior examination” would not permit a physician to prescribe pharmaceuticals, and could be deemed insufficient to justify providing health care via “telehealth.”
Consequences of Providing Telehealth Services Without an “Appropriate Prior Examination”
If a physician prescribes medication without “an appropriate prior examination,” the prescribing physician is subject to a $25,000 per occurrence fine. Thus, it is imperative that a physician who provides “telehealth”, and then prescribes medication as a result of his or her diagnosis of the patient, complete a thorough and detailed medical examination. While a physical examination is not required to constitute “an appropriate prior examination,” the medical examination that is provided must be detailed, which includes gathering his or her patient’s current medical condition, existing allergies and complete medical history of the patient.
Adherence of the California Medical Practices Act and Appropriate Regulations
Lastly, a telehealth provider must comply with the California Medical Practices Act and appropriate regulations regardless of where the provider is located. Consequently, a provider is required to file an application with the medical board if the provider desires to use a fictitious name. In addition to the physician being licensed in California, a professional medical corporation that provides telehealth services must be incorporated as a California corporation and is subject to California’s prohibition against the lay practice of medicine. Thus, the shareholders of the professional medical corporation are subject to scrutiny and must be designated health care professionals.
Navigating the requirements to become a telehealth provider and provide telehealth services can be challenging. A physician or medical group exploring or attempting to provide telehealth services should consult with an experienced healthcare attorney to ensure compliance with all state and federal regulations pertaining to telehealth services and providers.
Recent natural disasters such as Hurricane Dorian and The Camp Fires in
Butte County, California have left employers wondering whether they would be
required to pay their employees during a temporary closure caused by a natural
disaster. The answer varies depending on whether the employee is exempt from
overtime (exempt employee) or subject to overtime (nonexempt employee).
For exempt employees, it generally depends on how long the natural disaster lasts. Exempt employees usually get their full salary for any workweek in which they perform any work. This means that if the temporary closure caused by a natural disaster is only for a partial workweek, then the exempt employee will continue to receive her full salary for that workweek. However, the employer might be able to require the employee to use leave, if any, for the absence(s). On the other hand, if the temporary closure is for an entire workweek (and the employee is not working remotely), then the exempt employee would not continue to receive her salary for that workweek.
Limited exceptions exist for when an exempt employee’s salary may be reduced
for full-day absences for personal reasons other than sickness or
disability. The federal Department of
Labor has opined that an employee’s failure to report to work because of
transportation issues during inclement weather when the office is open is an
absence for personal reasons. The
position of the California Department of Labor Standards Enforcement is not
clear. Employers should exercise caution
before reducing an exempt employee’s salary because they can jeopardize the
employee’s exempt status by making improper salary deductions.
Different from exempt employees, non-exempt employees generally only get paid for the hours they actually work. This means that if a natural disaster prevents non-exempt employees from reporting to work or there is no work to report for, they do not get paid. California wage orders also contain an exemption from reporting time pay requirements for natural disasters. Finally, employers should be aware of their own agreements or policies because employers can change the general rules for exempt and nonexempt employees through employment contracts, labor contracts and employment policies providing that the employees will be paid during temporary closures caused by a natural disaster.
The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine
The Sacramento Business Journal annually honors the region’s top attorneys after a rigorous process of selection. To be awarded the Best of the Bar, attorneys are nominated by fellow attorneys and then vetted by a panel of peers.
Wilke Fleury is thrilled to celebrate our attorneys awarded this distinction and looks forward to the attorney’s profiles in the Sacramento Business Journal’s special ‘Best of the Bar’ publication!
In addition, David was also acknowledged as a 2020 “Lawyer of the Year” award recipient. He received this accolade for his work in Litigation – Real Estate in Sacramento. Only a single lawyer in each practice area and community is honored with a “Lawyer of the Year” award.
David has extensive and broad experience in the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.
Wilke Fleury is proud to announce that 14 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2019 Northern California Super Lawyers magazine.
Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys.
Each Wilke Fleury attorney was highlighted as Top Rated in the following practice areas:
Wilke Fleury is pleased to announce that it has promoted three associates to the position of Senior Counsel – Bianca Samuel, Adriana Cervantes and Aaron Johnson – who have demonstrated professional excellence and complement the firm’s multi-generational leadership.
“Bianca, Adriana, and Aaron’s ascension to Senior Counsel status reflects their significant accomplishments and contributions to the firm, both professionally and culturally,” said Dan Baxter, Managing Partner. “We are lucky to have all three of them within our ranks here at Wilke Fleury, and look forward to their successes for our clients.”
Senior Counsel have at least six years of experience delivering high-quality legal work, collaborate with partners on the development and management of key practice areas, and actively mentor junior lawyers.
Bianca Samuel litigates a wide variety of employment matters, including claims for discrimination, retaliation, wrongful termination, and single-plaintiff wage and hour claims on behalf of employers and supervisors before all state and federal courts and administrative proceedings. She conducts independent workplace investigations for public and private entities. She also advises and counsels employers on best practices relating to hiring, discipline, termination, wage and hour issues and training on employment related topics.
Adriana Cervantes defends healthcare professionals and hospitals against claims of medical malpractice, intentional torts, licensing actions for unprofessional conduct, and similar charges. She has successfully litigated cases involving obstetrics and gynecology, neurology, cardiology, infectious disease, radiology, psychiatry, emergency medicine, and many other medical specialties. Her practice extends to matters initiated in both state and federal court, and before administrative boards. Adriana also serves as the Fundraising Director for Operation Protect and Defend (OPD) an organization dedicated to engaging public high school students in a dialogue about the U.S. Constitution and promoting civic engagement.
Aaron Johnson has deep experience in Estate Planning, Business Formation and Transactions, Tax Planning and Controversy Resolution. His work in estate planning focuses on succession planning for individuals, family limited partnerships and closely-held businesses. Aaron specializes in drafting wills, trusts, advance health care directives, durable powers of attorney and related documents. In addition, he assists clients and companies with matters covering the full life cycle of business from formation to succession planning. He has experience forming LLCs and S Corporations, drafting Buy-Sell agreements, Purchase and Sale agreements, corporate minutes, and shareholder agreements, among other business documents. Aaron represents individuals and companies in all aspects of tax planning and controversy resolution before federal and state taxing authorities. His experience includes representing clients in front of the Internal Revenue Service (IRS), Franchise Tax Board (FTB) and the California Department of Tax and Fee Administration (CDTFA).
Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.
Wilke Fleury is growing with the addition of three new associates – Heather M. Claus, Kevin R. Bonsignore, & Spencer S. Turpen along with a new Legislative Advocate – Magaly L. Zagal. The firm is committed to strategic hiring practices and is excited to expand the firm’s capacity to serve the needs of clients.
Heather M. Claus is a health care attorney with significant experience navigating the dynamic legal and regulatory health care landscape on behalf of a variety of public and private health entities. She is well-versed in pertinent federal and state laws, including HIPAA, False Claims, ERISA, Knox-Keene, Stark, Anti-Kickback, Public Records, and the Brown Act.
Spencer S. Turpen’s practice primarily focuses on general civil litigation, including personal injury, medical malpractice, professional liability, and business litigation. Spencer is dedicated to providing excellent legal representation to his clients and prides himself on creative problem-solving in litigation.
Kevin R. Bonsignore’s practice is focused on general business litigation, bankruptcy, and real estate. Kevin regularly represents clients in all phases of litigation, including discovery, law and motion, and alternative dispute resolution. In addition to his litigation practice, Kevin represents clients in bankruptcy matters utilizing expertise he developed as a judicial extern in the United States Bankruptcy Court, Northern District of California.
Magaly L. Zagal joins Wilke Fleury with a background in politics and agribusiness. Magaly began her path into politics and policy at former Assemblymember Alejo’s district and capitol offices. Those experiences helped shape her decision to apply legislative and regulatory strategies to achieve solutions with the potential to impact millions of Californians.
Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.
Wilke Fleury celebrates the addition of two new partners – Shannon Smith-Crowley and Daniel J. Foster – who complement the firm’s shifting generations of leadership. Shannon and Danny bring unique perspective and excellent capability to Wilke Fleury’s partnership effective January 1, 2019.
Shannon has been a registered lobbyist in California for 20 years. After a career in managed care, she started lobbying with the California Medical Association before founding her own firm, Partners In Advocacy to specialize in medical and reproductive health advocacy. At Wilke Fleury, her areas of practice include health care, women’s equity, life sciences, the biomedical industry, new family formation and emerging technologies in green energy. After a four year tenure with the firm, she has been elevated to the partnership.
Daniel Foster’s litigation practice is composed of matters involving complex construction defect litigation, mechanics liens claims, stop notice actions and Miller Act claims. He represents clients before the Contractors State License Board and handles matters involving breach of warranty, the Song-Beverly Consumer Warranty Act, indemnity agreements and liability insurance coverage.
“The addition of Shannon and Danny to our partnership ranks not only enhances our ability to serve the broadly-drawn needs of our clients, but is internally exciting, as well,” said Dan Baxter, Managing Partner. “All of us here at the firm have worked with Shannon and Danny for several years, and they are both excellent lawyers, hard workers, and good people. Their ascension to partnership is part of an exciting time for the firm as we move into the new year.”
Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.
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