CCPA Updates—Draft Guidance

The California Consumer Privacy Act (CCPA) has been the first step away from the sectoral approach that United States’ privacy laws have followed for many years. While it is set to take effect on January 1, 2020—only recently was the first draft guidance published. Set forth by California’s Attorney General, Xavier Becerra, it states how the CCPA will be enforced. As is standard in notice and rulemaking standard in administrative law, a public consultation period is now in effect and will remain open for comments and hearings until December 6, 2019.

CMS Issues New Rule to Tighten Provider Enrollment

On September 5, 2019, the Centers for Medicare and Medicaid Services (“CMS”) released its final rule with comments on Program Integrity Enhancements to the Provider Enrollment Process (“ The Program Integrity Enhancements”).  The final rule gives CMS the power to revoke Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) enrollments of providers or suppliers who have an “affiliation” with previously sanctioned entities, even if those providers and suppliers aren’t directly violating any existing rules themselves. CMS says that this new authority will help to “stop fraud before it happens.”

Release of Department of Education’s Final Institutional Accountability Regulations

After two years of deliberation, public comment, and litigation, the Department of Education has released its final regulations for an overhaul of borrower defense to repayment claims. On August 30, 2019, the Department of Education released a press brief outlining new regulations set to take place on July 1, 2020. The new rules maintain that they are in place to create “streamlined and fair procedures that ensure basic due process for both borrowers and institutions.” Touting an anticipated savings of $11.1 billion dollars in savings to taxpayers over a ten-year span, the new regulations will likely make it more difficult for students to have their student loans forgiven. However, because of a missed deadline by the Department of Education, an Obama-era rule that favors borrowers by offering a transparent process for handling their claims, as well as automatic forgiveness of loans for some borrowers, is effective until that time.

YouTube and Google Face Largest COPPA Fine in History

Data protection measures have been increasingly crossing news headlines ever since the General Data Protection Regulation (GDPR) came into effect in 2018. However, data protection measures did not begin with the GDPR. In the United States, where there is a sectoral system in place, there have been regulations in place for years that monitor children’s online privacy (COPPA), health information (HIPAA), spam (CAN-SPAM), and even video rental history (VPPA). Despite these systems being implemented years ago, large companies still fail to properly comply with the requirements set forth. Recently, a settlement between YouTube and the FTC brought to light the importance of compliance with COPPA.

FDA Issues Warnings Regarding E-Cigarettes

On Wednesday, September 11, 2019, the Trump Administration issued a statement regarding the recent outbreak of illnesses and deaths related to the use of electronic cigarettes (“e-cigarettes”). Soon after, the Food and Drug Administration (“FDA”) quickly followed suit. The Trump Administration’s statement comes after reports of 380 cases of lung illness associated with the use of e-cigarettes in 36 states, in addition to 7 deaths. Both political parties have pressed for flavor bans, age restrictions, and other restrictions on the sale of vaping products. They have urged the FDA to move quickly and decisively to investigate and regulate e-cigarettes. E-cigarettes have been touted by manufacturers as a way to wean people from traditional cigarettes but have recently led to an “epidemic” of youth vaping of nicotine. E-cigarettes are popular among teens due to their availability, advertisements, e-liquid flavors, and the belief that they are safer than cigarettes. The long-term risks of vaping are currently unknown, but a growing numbers of studies show that e-cigarette vapor has severe health risks, including damaging lung tissue and blood vessels.

Illinois Amends Equal Pay Act of 2003 and Enacts Salary History Ban

On July 31, 2019, Illinois Governor J.B. Pritzker signed House Bill 834 into law amending the Illinois Equal Pay Act of 2003. The law, which will go into effect on September 29, 2019, makes it unlawful for employers to ask applicants about their salary history. Governor Pritzker signed the Bill with the intention of eliminating the wage gap that exists between men and women in Illinois. In 2019, half of the Illinois workforce is women, but women working in Illinois earn 79 percent of what men earn. The wage gap is exacerbated for women of color. According to The American Association of University Women, Black women in the United States are paid 61 cents for every dollar paid to a white man. As a result of the amended law, Illinois employers will need to act quickly to make changes to their hiring procedures.

California Legislators’ Actions Speak Louder than NCAA’s Words

In February, California State Senators Nancy Skinner and Steven Bradford presented SB-206, titled the Fair Pay to Play Act, to the California State Senate. Founded on the principle of amateurism, which prohibits paying participants, the NCAA has never allowed intercollegiate student-athletes to earn any form of compensation. This bill seeks to end that prohibition in California and provide student-athletes the rights to their names, images, or likenesses (NIL). In May, the State Senate voted in favor of the bill, 31-5. After the necessary committees reviewed and amended the bill, the State Assembly unanimously passed the Fair Pay to Play Act in a 72-0 vote. Due to the changes, the amended bill went back to the State Senate, where it was unanimously approved, 39-0, on September 11. Governor Gavin Newsom has 30 days to sign, veto, or take no action and allow the bill to become law.  

Managing Human Resources and Compliance in the #MeToo Era

In October of 2017, the downfall of disgraced sexual harasser Harvey Weinstein made national news and started what is now popularized as the #MeToo movement. Since then, numerous people have come forward to share their stories of workplace harassment in various industries. This leaves those in the human resources and/or compliance departments with a two-fold task: (1) protecting their employees, and (2) protecting the organization from legal liability regarding sexual (and other forms of) harassment in the workplace.

Social Media Sweepstakes: As Easy as Reposting or Liking?

Sunny Co Clothing posted a photo of a woman wearing a red swimsuit with a caption reading “EVERYONE that reposts and tags us in this picture within the next 24 HOURS will receive a FREE Pamela Sunny Suit” – along with other applicable rules. Instagram went crazy with thousands of reposts. The following day, Sunny Co Clothing posted a second photo stating that they had the right to cap the promotion if they so choose. Many people, myself included, questioned how this retraction was possible. Could it be as simple as reposting an Instagram photo and tagging the company to receive a $64.99 swimsuit for free? The answer is yes, but with a caveat.  One must follow the federal sweepstakes laws, applicable sweepstakes laws of the participants’ home states, and the governing rules of all the social medial platforms where the post appears. Easy, right?

Operation Varsity Blues Scandal: Should We Be Surprised?”

In March 2019, charges were brought against a number of National College Athletic Association (“NCAA”) athletic department personnel. These officials were found partaking in a fraudulent scheme which allowed affluent young adults to gain admission to elite universities under false pretenses, like fake test scores and phony athletic prowess. The actions of these athletic directors and coaches call into question the effectiveness of the NCAA monitoring and reporting methods to combat misuse and abuse of the athletic system. The NCAA and their institutions must learn from this most recent scandal to identify the problems in athletic compliance that allowed this fraud.