Articles, news & events

Read the latest news from Scali Rasmussen, including legal alerts and event listings.

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In previous articles, we have talked about the importance of using strong passwords and multi-factor authentication to protect consumer data. These are important steps, but only work when a potential user must login to a physical device or program before accessing consumer data. For this reason, every company should take steps to secure all devices and programs so that the user must login after a period of inactivity. This relatively simple step can help prevent a range of types of unauthorized access.

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California courts and the California Legislature have long been skeptical about mandatory arbitration agreements in employment contracts. In a recent example, the legislature in 2019 enacted AB 51, which makes it unlawful for employers to condition employment or a benefit of employment on the employee waiving their right to trial and arbitrating their disputes with their employer, among other things. In a case arguing the Federal Arbitration Act preempts AB 51, the Ninth Circuit upheld most of the law, finding that mandatory arbitration agreements are enforceable, but only if both parties have a choice when entering into such an agreement. Questions remained, though, as to what conditions reflect choice on the part of the employee.

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The California legislature passed AB 908, the Debt Collection Licensing Act, in 2020. The law requires that all debt collectors, as defined, obtain a license from the Department of Financial Protection and Innovation (DFPI) in order to engage in debt collection practices in California. DFPI began accepting applications on September 1 of 2021, and requires that all debt collectors submit an application by December 31, 2021, in order to engage in debt collection starting January 1, 2022. Debt collectors that submit an application after December 31 must wait until DFPI issues the license to engage in debt collection in 2022 and beyond. Now is therefore the time for California businesses to make a final assessment whether they should apply for a license.

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Businesses across the country that have 100 or more employees will need to require COVID-19 vaccinations for all employees or regularly test unvaccinated employees for the disease by January 4, 2022. On September 9, 2021, President Biden announced that he was directing the Department of Labor’s Occupational Safety and Health Administration to adopt Emergency Temporary Standards (ETS) on vaccination and testing, but did not announce a compliance deadline at that time. Now, business can get through the holidays without implementing the mandate, but will need to have it in place at the start of the New Year.

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The Federal Trade Commission announced on October 27, 2021 the final updates to the Safeguards Rule under the Gramm–Leach–Bliley Act (“GLB”). These updates are the result of a multi-year process and purport to strengthen security for consumer financial information following an uptick in data breaches. Overall, the updates are more prescriptive than the previous Rule, imposing specific new requirements. For auto dealers who must comply with the new rules when they are fully effective, it means that action is needed now to protect their companies from costly private lawsuits and enforcement actions for failure to comply with the updates.

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While it is important for every company to limit access to its data and network with strong passwords, for some sensitive data, traditional passwords aren’t secure enough anymore. Hackers have developed countless tried and tested methods of stealing credentials and gaining unauthorized access to private accounts. But strong passwords are not the only readily available security option. In a report published by Microsoft this year, it revealed that 99.9% of the account compromise incidents they deal with could have been blocked by a multi-factor authentication (MFA) solution. For this reason, your business should adopt MFA solutions to protect its most sensitive data.

Preparing for the federal COVID mandate

Exception for prior COVID infection?

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On September 9, President Biden announced that the Department of Labor would develop an emergency rule to require employers with 100 or more employees – amounting to over 80 million employees – to mandate vaccination of their workforce against COVID-19 or have employees regularly test for COVID-19. The Biden administration has not yet released the new rule for private employers, but many businesses are starting to prepare.

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The California legislature and courts have been skeptical of mandatory arbitration in employment and consumer cases and have for years looked for ways to declare agreements to arbitrate unenforceable. But these efforts have created a complicated dance involving the Federal Arbitration Act (FAA) and the federal courts, as the FAA prohibits states from passing laws that interfere with the ability of two parties to consent to mandatory arbitration. In most cases, the federal courts have found that the FAA invalidates California laws and court rulings limiting the use of mandatory arbitration agreements.

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On September 21, 2021, U.S. Federal Trade Commissioner Christine Wilson provided keynote remarks at the Duke University Sanford School of Public Policy’s Robert R. Wilson Distinguished Lecture Series regarding some of the major issues lawmakers must confront to pass federal privacy legislation. Commissioner Wilson, a Trump-appointee, argued that comprehensive federal privacy legislation is the right approach because there is an information asymmetry between consumers and businesses that results in a market failure and because federal legislation will create a more consistent legal landscape for businesses.

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