Table of Contents
Employees have privacy rights under the California Constitution, common law, and statute.
State Constitution Right to Privacy
- California is one of seven states that provides a constitutional right to privacy. Article 1, Section 1, of the California Constitution states: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy.”
- This privacy provision is directed at the overly broad assemblage and retention of unnecessary personal information by government and business, the improper use of information obtained for a specific purpose and the lack of a reasonable check on the accuracy of existing records. White v. Davis, 13 Cal.3d 757 (1975).
- An invasion of privacy claim requires that the employees show: that the employer intentionally intruded into a place in which the employee had a reasonable expectation of privacy; and the intrusion would be highly offensive to a reasonable person.
Common Law Invasion of Privacy
- Employees can bring common-law claims against you for invasion of privacy. If an employer disseminates information obtained privately from the employee, the employer could be subject to claims of having placed the employee in a false light or giving unreasonable publicity to that employee’s personal life. Hill v. National Collegiate Athletic Association, 7 Cal.4th 1, 24, 26 (1994); CACI Nos. 1800-1803.
- Appropriation of the name and likeness of another. Example: Using photographs or names of employees in your advertising or marketing, particularly of former employees without their permission, can result in a claim for appropriation.
- Unreasonable publicity given to another’s private life. Example: Telling others that an employee is suffering from AIDS or is recently divorced gives unreasonable publicity into that employee’s private life.
- Unreasonable intrusion upon the seclusion of another. Example: Surveillance of an applicant for a sensitive position during a background check can lead to claims for unreasonable intrusion into the employee’s seclusion (privacy).
Privacy During Job Interview Process
- Protected Classes. Anti-discrimination regulations require that: job applications state that if an employer asks for schedule availability on a job application, the employer must communicate that applicants do not need to disclose any scheduling restrictions based on legally protected grounds; prohibit employers from asking for dates of graduation (not an issue on our existing form); and, require that an employer’s online application technology must include a mechanism for applicants to request reasonable accommodations, including scheduling accommodations. California Code of Regs., tit. 8 §§ 11016, 11063, 11075-11079.
- Salary History. Employers cannot ask about or rely on an applicant’s salary history to set starting pay. Labor Code § 432.3.
- Drug Testing. Even though California Proposition 64 legalized adult recreational use of marijuana, employers may continue to maintain a drug and alcohol free workplace. Employers may be conduct drug testing in limited circumstances: during pre-employment screening; as part of a physical examination; and, if there is “reasonable suspicion.”
- Criminal History. Employers are prohibited from asking job applicants about their conviction history before making a conditional offer. After a conditional offer is made, the employer may conduct a background check. Government Code § 12952 (a). Even then, employers will be prohibited from considering: an arrest not followed by conviction, except under limited circumstances (like when the employee or applicant is currently out on bail); referral to or participation in a pretrial or post-trial diversion program; or, convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. Government Code § 12952 (a); Labor Code § 432.7(a)(1), (f). If, after a conditional offer is made, the employer conducts a background check and discovers a prior conviction, they must conduct an individualized assessment of the applicant’s conviction history. The goal of this individualized assessment is to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. Government Code § 12952 (c). During the individualized assessment, the employer must consider: The nature and gravity of the offense or conduct, The time that has passed since the offense or conduct and completion of the sentence, and The nature of the job held or sought. Government Code § 12952 (c).
Confidentiality of Employee Personnel and Medical Records
- The right to privacy guaranteed by the California Constitution protects employee personnel files from improper disclosure to third parties. Board of Trustees, Stanford University v. Superior Courts, 119 Cal.App.3d 516 (1981).
- Employers must have appropriate procedures to keep all employee medical records and information confidential and protect them from unauthorized use and disclosure. Failing to establish these procedures is a misdemeanor and allows an employee to collect monetary damages, attorneys’ fees and the costs of litigation. Civil Code § 56.35.
- Employers must maintain an applicant’s or employee’s medical history information on separate forms, treated as confidential and kept in separate files from the employee’s general personnel information. 42 U.S.C. 12112(c)(3)(B).
- Employers cannot use or disclose medical information pertaining to your employees without a written authorization from the affected employee.
- Discussing an employee’s private medical information with other employees who do not have a need to know the information can lead to claims of invasion of privacy. Ignat v. Yum! Brands, Inc., 214 Cal.App.4th 808 (2013); Civil Code § 56.20 (a).
- Employers may not make audio or video recordings of employees in restrooms, locker rooms or rooms designated by the employer for changing clothes, unless authorized by a court order. Labor Code § 435.
- Employers may not engage in intentional wiretapping, willfully attempting to learn the contents or meaning of a communication in transit over a wire, or attempting to use or publicize information obtained in either of the above ways. Penal Code § 631.
- No one may eavesdrop on or audio record another without consent. Penal Code § 632.
- Employers may not install electronic tracking devices on employee’s or employee owed vehicles without consent. Penal Code § 637.7.
- Employers may not disclose the contents of a phone message by a person other than the addressee without permission. Penal Code § 637.
Social Media Use
- Employers are generally prohibited from requiring or requesting an applicant to: disclose a username or password for the purpose of accessing the applicant’s or employee’s personal social media; access personal social media in the presence of the employer; divulge any personal social media. Social media accounts can include Facebook, LinkedIn or Twitter accounts. They can also include personal email accounts. Labor Code § 980.
- The exceptions that permit employers to require an employee to access, log in, or divulge personal social media in two important instances: Investigations; and Employer-issued devices. Labor Code § 980(c) and (d).
- Employers may not discipline employees for discussing their wages and working conditions. Labor Code §§ 232; 232.5. In the context of social media usage, if an employee on Facebook asks co-workers how much they earn, the employer cannot discipline the employees involved in that conversation in most circumstances.
- Anti-retaliation protections apply in social media context. Employers may not retaliate against any employee who discloses information to a government or law enforcement agency (or to internal individuals with authority over the employee or authority to investigate, discover or correct violations) about what he/she reasonably believes to be a violation of state, federal or local statute, rule or regulation. Labor Code § 1102.5.
Privacy Outside of Work
- Employers cannot take adverse employment actions against an employee for their “lawful conduct occurring during nonworking hours away from the employer’s premises.” Labor Code § 98.6.
- Examples of protected lawful conduct include: exercising free speech rights; engaging in political activity; reporting information to the government, if the employee reasonably believes that the information discloses a violation of state or federal law; complaining of unpaid wages or other Labor Code violations during non-work hours.
- This protects employees who take a second job — known as “moonlighting” — unless there is a direct conflict of interest that causes a substantial disruption to business of the primary employer.
Defamation of Character
- Defamation “involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus v. Loftus, 40 C4th 683, 720 (2007); Cornell v. Berkeley Tennis Club, 18 Cal.App.5th 908, 946 (2017); CACI Nos. 1700-1705.
- Employers can be held liable for defamation of a former employee’s character without having distributed a single piece of information on then based on “defamation by compelled self-publication.” This is when a job seeker is compelled to tell a prospective employer about negative information, allegedly untrue, in the former employer’s personnel file. If the job seeker does not tell the prospective employer about the negative information, the prospective employer will discover it upon calling the former employer and presume that the job seeker was trying to hide something. So, the job seeker has no choice but to defame himself to avoid this negative presumption. Davis v. Consolidated Freightways, Inc., 29 California App.4th 354 (1994).
- Employers cannot make misrepresentations about a former employee to prevent or attempt to prevent him/her from obtaining employment. Labor Code §§ 1050, 1052. Employers can make a truthful statement about the reason for a former employee’s discharge or voluntary termination. However, if the statement is not in response to a request or is accompanied by marks or symbols that convey information contrary to the statement, that action is considered misrepresentation. Labor Code § 1053.