California Workplace Privacy Laws

What You Need to Know About California Workplace Privacy Laws

The right to privacy is one of the most important legal rights California residents possess. Here’s everything you need to know about workplace privacy laws.

California law gives employees the ability to sue employers for violations of their privacy rights. In order to do so, the employee must show that the employer violated the employee’s “reasonable expectation of privacy” in a California workplace.

Common Privacy Laws in the California Workplace

Privacy is a commodity that most Californians value greatly. However, the legal right to privacy can be complicated, especially in the workplace. While an employee may do as they please in their own home, it is important to understand what privacy protections are granted to those employees while on the job, and which privacy protections are not.

Monitoring Employee Computer Activity

Generally, employers have the right to monitor their employees’ use of the Internet on computers owned by the employer, during employees’ on-duty hours. This allows employers to monitor website activity, e-mail accounts, and instant messages.

However, this right cannot be used as a means of discrimination. Federal laws prohibit employers from discriminating against a prospective or current employee based on information on the employee’s social media or computer activity relating to their race, color, national origin, gender, age, disability, and immigration or citizenship status.

Note also that California law prohibits employers from requesting current employees to:

Disclose a username or password for the purpose of accessing a personal social media account, or
Access a personal social media account in the presence of the employer

Drug Testing

Requiring an employee to submit to a drug test without adequate suspicion is permissible only under these limited circumstances:

If an individual is an applicant for a new job they may be tested so long as all new job applicants are tested
Random drug tests of existing employees are generally unreasonable without any individualized suspicion unless the employee is in safety or security-sensitive position

Background Checks

Background checks are generally legal in California. A background check is when an employer or other company screens or reviews a person’s private information as to their history. This includes information about an employee’s criminal history. Lawful background checks can disclose several pieces of information on a person. Some of these categories of personal information include:

Past criminal convictions (with exceptions)
Negative information on a credit report,
Schools that a person attended (and the dates of attendance)
Social security numbers
Immigration records

A background check often gathers information from several different sources. Some of these include:

Criminal/arrest records
Past personnel files
Consumer credit reports
DMV driving/vehicle registration records

Medical Records

As to medical records, California law imposes strict requirements that protect the confidentiality of a person’s medical information. Most employers can only gather information about an applicant’s ability to perform specific job functions.

Surveillance

Employers can use video cameras for workplace monitoring provided that they are for security purposes, and the company notifies its employees of the cameras before recording them. Employers, however, cannot use video surveillance to look in on certain employee activities. This includes acts related to union organizing.

Labor Code 435 also places some restrictions on an employer’s use of video cameras. The code section states that a business cannot take a video or audio recording of a worker when they are in:

Restrooms
Locker rooms
A room designated by an employer for changing clothes

As for audio recordings, California is a two-party consent state. This means that the following two parties must consent to the recording before it can take place:

The employer (or the party doing the recording)
The employee (or the party being recorded)

What is “Ban the Box” Legislation?

AB 1008, California’s “ban the box” legislation, took effect on January 1, 2018. The law:

Prohibits employers from inquiring into an applicant’s criminal history, and
Performing such an inquiry before making a conditional offer of employment.

The law applies to private employers with 5 or more employees. These employers can ask about criminal convictions. But they can only do so after making a conditional offer of employment to a candidate.
If a company finds information as to past criminal convictions, these laws state that it cannot automatically exclude an applicant from employment. Rather, the employer is required to perform an individualized assessment of the applicant.
An employer can deny an applicant after conducting this assessment. Note that an employee, though, may have a wrongful termination case if:

The employer hires the applicant without performing an assessment, and
Then fires the person on the basis of his/her criminal history.

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If you or a loved one would like to learn more about California Workplace Privacy Laws, get your free consultation with one of our Employment Attorneys in California today