Data Privacy Bill Breezes Through Washington State Senate

February 21, 2020

With the support of the business community, a Washington state consumer data privacy bill that exempts employment data has again passed the State Senate in a near unanimous vote after stalling in the House last year.

Employment data excluded: The bill says that the definition of “consumer… does not include a natural person acting in a commercial or employment context.”  It further clarifies that it does not cover "[d]ata maintained for employment records purposes."

The state bill would preempt any local measure regarding data privacy.  This feature is common in state data privacy efforts, and is strong evidence for the need for preemption in a federal privacy bill.

No private right of action: “Any violation of this chapter shall not serve as the basis for, or be subject to, a private right of action under this chapter or under any other law,” according to the bill.

Employment opportunities covered: Individuals would have the right to opt out of the processing of personal data for the furthering of decisions that may include “the denial of … employment opportunities.”

Facial recognition services that contribute to hiring decisions must be “subject to meaningful human review,” including providing software to enable “legitimate, independent, and reasonable tests… for accuracy and unfair performance differences across distinct subpopulations.”

Outlook:  The bill is now in the hands of the Washington House, which has until March 6 to pass the bill.  If the House passes a version that differs from the Senate’s, the legislature will have until the end of Washington’s 2020 legislative session on March 12 to reconcile those differences.  The bill has garnered support from Washington's business community, including the Washington Retail Association. Meanwhile, nine other states are considering data privacy measures, increasing the pressure on the U.S. Congress to pass a comprehensive law.