United States: Recent Amendments To Security Breach Notification Laws Further Complicate Breach Notification For Employers

Last Updated: November 5 2015
Article by Philip L. Gordon and Jennifer L. Mora

It is not a matter of "if" but "when" an employer will be required to notify employees of a security breach. Forty-seven states require employers to notify employees when defined categories of personal information, including Social Security numbers, are acquired by unauthorized parties, and every employer maintains SSNs. At the same time, security breaches are rampant. According to the Privacy Rights Clearinghouse's Chronology of Data Breaches, more than 1,000 breaches, implicating more than 280 million records, have been publicly reported since January 2013.

For multi-state employers, the multitude of breach notification laws complicates the employer's response to a security breach because common practice calls for compliance with the breach notification law of each state where affected individuals reside. In 2015, that undertaking has become even more complicated as eight states enacted amendments to their breach notification laws, adding new and unique requirements. It is critical for employers to be aware of these recent changes, which we discuss in detail below, to ensure their response to a security breach fully complies with applicable law.

California Now Requires a Specific "Form" of Notice

In October 2015, California became the first state to mandate a specific form to notify individuals of a security breach. The amendment requires the breach notification to be entitled, "Notice of Data Breach," and requires the entity to provide information about the breach under each of the following headings:

  • What Happened
  • What Information Was Involved
  • What We Are Doing
  • What You Can Do
  • Other Important Information
  • For More Information

This standard form creates practical problems for employers addressing a multi-state breach. Other states require that the breach notification include information in addition to, or different from, California's mandate. For example, employers in Massachusetts and Rhode Island must inform individuals of their right to obtain a police report, and Wyoming employers must state whether law enforcement requested the employer to delay the notification. As a result, multi-state employers will find it difficult to draft a single notification that satisfies California's new notification law as well as all other notification laws.

Reporting a Security Breach to the State's Attorney General

As of the end of 2014, 18 states required a report to the state's attorney general when an entity experiences a security breach—in addition to the notice to affected individuals. This requirement creates significant risk for employers because the report potentially exposes the employer to an administrative investigation and penalties. While most of the 18 states require reporting any breach, regardless of the number of affected individuals, a handful require reporting only if the number of affected individuals exceeds a certain threshold, such as 1,000 affected individuals in Hawaii and 500 affected individuals in Florida.

In 2015, five additional states—Montana, North Dakota, Oregon, Rhode Island and Washington—amended their breach notification law to require entities to report a breach to state regulators. Falling in with the majority of states, Montana's reporting requirement applies regardless of the number of affected Montana residents. In North Dakota and Oregon, the reporting requirement applies only if the breach involves more than 250 state residents, and Rhode Island and Washington set a reporting threshold of 500 affected state residents. These reporting requirements already have gone into effect in Montana, North Dakota, and Washington, and will go into effect on January 1, 2016, in Oregon and on July 2, 2016, in Rhode Island. Like the other breach notification laws that require a report to state authorities, these new laws require employers to notify the state and affected individuals contemporaneously.

State Amendments Expand the Categories of "Trigger Information" Requiring Notice

When an employer discovers a security incident, one critical question is whether the compromised information triggers breach notification requirements. All breach notification laws define the categories of "trigger information" to include, at a minimum, first name or initial and last name in combination with Social Security number, driver's license or state identification number, or credit or debit card number or financial account number coupled with any required security code. In the last few years, many states have expanded this definition to include other categories of information, most commonly health information and health insurance information.

In 2015, four states expanded the categories of information that constitute trigger information, thereby increasing the risk that a security incident will result in breach notification obligations. Effective October 1, 2015, Montana law now includes medical record information, taxpayer identification number, or identity protection personal identification number issued by the Internal Revenue Service as trigger information. Effective July 1, 2015, Nevada added the following to its list of trigger information: medical identification number; health insurance identification number; or a user name, unique identifier or email address in combination with a password, access code or security question and answer that would permit access to an online account. Effective January 1, 2016, Oregon's security breach law will add the following categories of trigger information:

  • Health insurance policy number or identification number;
  • An individual's medical history, condition, diagnosis, or treatment; or
  • Data from automatic measurements of an individual's physical characteristics, such as an image of a fingerprint, retina or iris, that are used to authenticate the individual's identity in the course of a financial transaction or other transaction.

Effective July 2, 2016, Rhode Island law expands its list of "trigger information" to include (1) medical or health insurance information, and (2) an e-mail address with any required security code, access code, or password that would permit access to an individual's personal, medical, insurance or financial account.

Connecticut Entities Are Now Required to Offer Identity Protection Services to Affected Individuals

Entities that experience a security breach routinely offer identity protection services to affected individuals even in the absence of a legal requirement. Motivations vary, but chief among them are a sense of obligation to affected individuals, concern about public and/or employee relations, and the desire to reduce the likelihood that affected individuals will sue.

Until late 2014, no jurisdiction required companies to offer this benefit to affected individuals. On September 30, 2014, California became the first state requiring businesses to provide free identity protection services to affected individuals, but only for one year and only for breaches involving an individual's Social Security number – information that almost all employers maintain on their employees.

In 2015, Connecticut followed California's lead. Under the amendment to Connecticut's notification law, entities must provide identity protection services to residents affected by a security breach involving their Social Security number or driver's license number. Such services must be provided at no cost to affected residents for a period of not less than 12 months. The covered entity must provide in the breach notification all information necessary for affected residents to enroll in the services and how to place a credit freeze on his or her credit file.

Some States Impose Strict Deadlines for Notifying Affected Individuals of a Breach

Most security breach notification laws provide a flexible deadline for notifying affected individuals, typically "as soon as reasonably practicable" or "without unreasonable delay." A few states, however, impose strict deadlines. Ohio, Vermont, Washington, and Wisconsin require notice within 45 days of discovery, and Florida requires notice within 30 days.

In 2015, three states set hard deadlines. Washington requires notice within 45 days after discovery, and the same deadline will apply in Rhode Island, effective July 2, 2016. In addition, Connecticut now requires notice within 90 days of discovery of the breach.

Recommendations for Employers

The amendments to breach notification laws in 2015 have increased the risks, and potential costs, associated with a security breach for employers with employees in California, Connecticut, Montana, Nevada, North Dakota, Oregon, Rhode Island, and Washington. Employers in other jurisdictions should expect similar amendments in coming years as other legislatures follow the trend towards requiring reports to the state's attorneys general, expanding the categories of "trigger information," mandating offers of free identity protection services, and setting hard deadlines for breach notification. The time to grapple with these security breach notification requirements is not under the extreme pressure of a security breach response. Instead, employers should prepare for a security breach well before it occurs by, among other things, (a) reviewing, and if necessary enhancing, their administrative, physical and technical safeguards for personal information; (b) establishing a security incident response team; (c) developing a security incident response plan; (d) negotiating agreements with identity protection services and other vendors that support security incident response, such as printing and mailing and call center providers; (e) developing template notification letters; and (f) conducting simulations to test the effectiveness of the incident response plan.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Philip L. Gordon
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.