On October 22, 2019 Perkins Coie LLP hosted members of the Silicon Valley Chapter of the National Association of Women Business Owners (NAWBO) for a timely and lively panel discussion of recent developments in Intellectual Property, Employment and Privacy Law.

Perkins Coie attorneys Jim Snell, Victoria Smith, Sue Stott and Marina Gatto provided NAWBO members with key insight on recent developments in the law, and practical tips for what business owners should keep in mind going into 2020. Key takeaways include:

The California Consumer Privacy Act (CCPA)

• The CCPA goes into effect January 1, 2020 and proposed regulations were recently released by the attorney general.
• Businesses should use this tool to examine the threshold requirements of what it means to be defined as a “business” under the CCPA so that they can assess their compliance obligations immediately.
• To comply with the CCPA, businesses (as defined) will need to implement processes and procedures to authenticate and respond to verifiable consumer rights requests. Under the CCPA, consumers have the right to: know what personal information was collected about them, access their personal information, request the deletion of their personal information, opt out of the sale of their personal information, and be free from discrimination for exercising any of their rights.

Patents

• Introduce patent lawyers into your team early — we don’t bite! Your employees will be more comfortable talking to a lawyer and your lawyer can capture invention disclosures early to make the deadline for patenting.
• Always include an IP ownership provision in your employment agreements in case your employee might be building a better mousetrap on your dime. This will help you retain ownership of inventions stemming from work you paid for and prevent employees from opening a company that competes with yours.
• Check your insurance and/or use agreements and contact indemnitors immediately —defending an infringement claim may cost you nothing. Sitting on a letter or a complaint will negatively impact your defense. Don’t give the insurance company or indemnitor a reason not to pay.

Labor & Employment

Some of the most significant new 2020 California employment laws are:

• Mandatory Employment Arbitration (AB 51) – Bans employers from requiring applicants or employees to arbitrate FEHA or Labor Code claims unless the agreements are voluntary or enforceable under the Federal Arbitration Act.
• “No Rehire” Provisions (AB 749) – Bars settlement agreements from including “no rehire” unless there is an independent basis for doing so, such as sexual harassment or assault.
• Independent Contractor Classification Limited (AB 5) – Individuals not concurrently engaged as a business, separate and distinct from the company that retains them, cannot be contractors. Employers must establish that contractors meet the “ABC” test.
• Extended Statute of Limitation (AB 9) – Extends to three years the time to file a DFEH charge of discrimination, harassment, or retaliation.
• Expanded Enforcement of Wage Rates (SB 688) – Permits recovery of unpaid contractual wages by Labor Commissioner even without a minimum wage violation.
• Increased OSHA Exposure (AB 1805) – Removes 24-hour minimum hospitalization stay previously required to qualify a workplace illness or injury as “serious” under OSHA.
• Additional Lactation Accommodation Requirements (SB 142) – Expands existing requirements for safe, sanitary, and practical lactation rooms.
• Wage Claim Penalties (AB 673) – Employees recovering unpaid wages can receive statutory penalties against the employer or civil penalties under the Private Attorneys General Act, but not both for the same violation.
• Create a Respectful and Open Workplace for Natural Hair Act (AB SB 188) – The CROWN Act prohibits employers from discriminating based upon “protective hairstyles,” defined as “braids, locks, and twists.”
• Employer Training Compliance Deadline (SB 778) – Employers with 5+ employees have additional time, until January 1, 2021, to provide compliant sexual harassment training.
• Flexible Spending Account Notifications (AB 1554) – Employers must provide robust notice (at least two times) of any deadline to withdraw funds from an FSA.