New Laws and Regulations: Insights for 2020

Influenced by California’s Consumer Privacy Act and the European Union’s General Data Protection Regulation, a wave of new data privacy legislation has been introduced across the United States. Since the start of 2019, at least 10 state legislatures have introduced privacy bills inspired to varying degrees by the CCPA. The CCPA requires many companies doing business in California to implement new policies and procedures related to the collection and use of personal information no later than July 1, and it can be enforced by the California attorney general or by private plaintiffs with the possibility of statutory penalties for noncompliance.

On the regulatory front, several projects addressing the TCJA’s provisions affecting tax-exempt organizations are on the latest Treasury-IRS priority guidance plan. But instead of precedential guidance, there may be more subregulatory notices from the IRS and Treasury on TCJA provisions. Forthcoming 512(a)(6) unrelated business income tax (UBIT) “silo” regulations hold that tax-exempt organizations are not required to separately compute or “silo” UBIT unless it arises from an actual unrelated trade or business. This will necessitate the IRS taking a position on what in fact constitutes a trade or business. Other issues facing nonprofits addressed in this Tax Notes article include how to provide a parking “benefit” to employees and how to narrowly construct the excise tax on highly compensated nonprofit executives.

The most recent changes to Japan’s IP regime, designed to better protect AI businesses’ data ownership, took effect in July 2019. The scope of legal protection afforded to data holders and AI businesses remains uncertain, however, and the Japanese government is continuing to discuss the developments in data protection and utilization in this industry.

As businesses become more digitally driven and cross-border data transfers grow exponentially, new data privacy provisions are developing apace in Russia. In October 2019, Roskomnadzor, the Russian data protection authority, revealed 1,942 violations of existing Federal Law No. 152-FZ “On Personal Data.” A number of additional draft regulations are in the pipeline with new legislation expected to come into effect throughout 2020 and beyond.

The US Department of Labor (DOL) has issued a final rule updating its guidance under the Fair Labor Standards Act of what payments and benefits can be excluded when calculating the regular rate of pay on which employee overtime premiums are based. This has long created uncertainty for employers, so this clarification of DOL’s position is welcome news. Before offering new benefits or implementing changes, employers should consult with counsel to ensure the benefit fits within the parameters laid out by DOL, check whether state law tracks or departs from the federal law, and audit their payroll practices to ensure that they are correctly calculating overtime payments.

The SECURE Act—potentially the most impactful benefits legislation since the Pension Protection Act of 2006—was included in the bipartisan spending bill signed into law in late December. The SECURE Act will advance the goals of increasing access to defined contribution plans, promoting lifetime income options, and facilitating retirement plan design and administration. Other provisions of the spending bill affect executive compensation and healthcare benefits.

At the outset of 2019, Law360 predicted that regulators, not lawmakers, would be the driving force behind major movement on US energy policy. As that came to fruition over the past year, it set up a jurisdictional fight between FERC and essentially all state utility commissions over who oversees energy storage. How this plays out will hold national importance and will echo beyond the narrow technical questions raised by jurisdiction.

A number of regulations will likely impact the long-term care insurance industry in the coming year. The National Association of Insurance Commissioners (NAIC)—the standard-setting body for insurance regulators in the 50 states—is continuing its research into potential regulations for how insurers use Big Data in their underwriting. This Law360 article examines the important questions for regulators, including what do we, as an industry, want to do about the collection of data? Who holds the data? Who can alter the data? What can be done with the data?

Law360 examines potential implications if commercial properties lose Prop. 13 protection this year, including a ripple effect of tax increases being passed onto the tenant, and the tenant passing them onto the customer. That would have a huge economic impact.

This Bloomberg Law article discusses upcoming changes to labor laws in New York, including recent amendments expected to raise new #MeToo challenges for employers, the expansion of protected categories and lowering of thresholds of proof in discrimination cases, the expected increase in enforcement actions by the New York City Department of Consumer Affairs, and changes to independent contractor legislation.

California has always been a trendsetter in privacy legislation, but the CCPA sets a new standard for detailed and comprehensive privacy regulation in the United States. This Bloomberg video discusses how other states are taking their cues from the CCPA and considering bills of their own, which may cause an enormously complex regulatory landscape for businesses in very short order.