USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
• the National Labor Relations Act (NLRA), which prohibits employers from interfering with workers’ rights to engage in concerted activity, including through social media; and • the Fair Credit Reporting Act (FCRA), which applies to those who use consumer reports, including background checks conducted on applicants and employees. Another federal law, the Privacy Act 1974, limits the type of information that federal government employ - Most US states impose requirements related to per - sonal information. Every state has enacted laws defin - ing PII and requiring notification of security breaches involving PII. Many states have enacted laws that require companies to keep PII secure and to destroy or dispose of PII – or otherwise make it unreadable or undecipherable – once they are finished with PII they hold. Many states have also enacted laws to protect social security numbers, with limited exceptions for employ - ers, and some have laws providing expanded pro - tections to PHI or other health information. A signifi - cant number of states have also enacted employee social media privacy laws, which limit when and how employers may use social media information about their employees. ers may keep on their employees. Personal Information Requirements Certain states have laws that represent new approach - es to data protection and have become a model for similar legislation across the nation. One such exam - ple is Illinois, which imposes conditions on the collec - tion and use of biometric information, including finger - prints, retina scans and facial geometry scans (which could be used to identify individuals through photo - graphs). The Illinois Biometric Privacy Act (BIPA) has a number of requirements, such as written consent and disclosure of policies related to biometric data collection and usage. It also allows private individuals to bring suit and recover damages for violations. Elsewhere, nearly half of US states have established broad consumer privacy laws, but to date the laws generally provide an exclusion for employment infor -
mation outside California. In contrast, the California Consumer Privacy Act 2018 (CCPA), as amended by the California Privacy Rights Act 2020, established rights for California residents, including requirements for employers with regard to the information they hold on employees, applicants and contractors. Employ - ers must: • develop a comprehensive programme to monitor how data is collected, used, shared and destroyed throughout the employment relationship; • communicate with California residents about the data, the programme employers have developed, and the rights residents may exercise; and • process rights requests when received. New York City and several states place restrictions on the use of AI when processing employment infor - mation, particularly in the hiring process. These laws and ordinances place constraints – as well as notice and, in some cases, consent obligations – on those employers using tools that conduct automated deci - sion-making. Laws concerning personal information and data pro - tection are changing rapidly. In addition to proposed national legislation, new rights and duties for employ - ers are expected in a number of states during the coming years. US employers are prohibited from hiring or continuing the employment of a worker who is not authorised to work in the USA. The Immigration Reform and Control Act of 1986 (IRCA) places the burden of immigration compliance on employers and prohibits the hiring, recruiting or referring for a fee of individuals who are not authorised to work in the USA. It also requires employers to confirm the identity and employment eligibility of new employees. Subject to very few exceptions, a foreign worker must have a work visa permitting them to work in the USA. Employers have the option of participating in the immigration sponsorship process. However, they 4. Foreign Workers 4.1 Limitations on Foreign Workers
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