USA – WASHINGTON Trends and Developments Contributed by: Alexander A Baehr and Molly Gibbons, Summit Law Group
means any disclosure or making available of protected data, regardless of whether there is monetary or other valuable consideration. • Finally, “selling” of protected data is highly restricted. For the sale of protected data, regulated entities must obtain a signed authorisation meeting several specific formal requirements. Geofencing is also prohibited under the My Health My Data Act with regard to any facil- ity that provides in-person healthcare services where the geofence is used to identify or track consumers seeking healthcare services, col- lect consumer health data, or send notifica- tions, messages or advertisements to consum- ers related to their protected data or healthcare services. A consumer has the right to confirm whether a regulated entity is collecting, sharing or selling their protected data, including a list of all third parties and affiliates with whom the regulated entity has shared or sold such data. The My Health My Data Act provides the consumer with the right to delete, which is an absolute right to delete. A consumer can request deletion at any time and the right requires deletion of data from all parts of the regulated entity’s network, including archived or back-up systems and flow- down communications to affiliates, processors and other third parties with whom the regulat- ed entity shared covered data within specified timeframes. Regulated entities may thus need to consider changes to IT architecture and systems to accommodate the novel deletion require- ments of the Act. Civil cause of action In addition to providing the Attorney General a right of action under the My Health My Data Act, the Act also provides a private right of action
to consumers pursuant to the CPA. Therefore, the My Health My Data Act ‒ by way of the CPA ‒ allows for the recovery of attorney’s fees and treble damages up to USD25,000 for violation of its provision. Furthermore, by providing a spe- cific finding that a violation of the My Health My Data Act is an “unfair or deceptive act in trade or commerce and an unfair method of competi- tion”, the Act reduces the proof necessary for sustaining a damages claim under the CPA. Employment law perspective Litigation related to new pay transparency law Effective as of 1 January 2023, updates to Washington state’s Equal Pay and Opportuni- ties Act saw Washington join several other states in requiring employers to disclose in each job posting the opening wage scale or salary range of the job, along with a general description of all benefits and other compensation offered (RCW 49.58.110). The law applies to all employers with “15 or more employees, engaging in any busi- ness, industry, profession, or activity in Washing- ton”. Additionally, the law enables a “job appli- cant or an employee” to bring a civil action for: • actual damages; • statutory damages equal to the actual dam- ages or USD5,000, whichever is greater; • interest of 1% per month on all compensation owed; • costs and reasonable attorneys’ fees; and • reinstatement and injunctive relief. Since the new pay transparency law took effect, more than 100 class actions alleging violations of the law have been filed in Washington state and federal courts. In some of the federal law- suits, employers sought to dismiss the lawsuits for lack of Article III standing, arguing that the plaintiffs were not “bona fide” applicants for the
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