Employee Privacy Rights

EMPLOYEE PRIVACY RIGHTS

Dating Relationships

Employers may establish policies which prohibit employees from participating in dating and sexual relationships that create a conflict of interest (e.g., between a supervisor and a subordinate), to reduce exposure to sexual harassment claims and to prevent harm to employee morale that may result from perceived favoritism. Notice to employees of this policy is highly advisable. However, an employer may not discipline or otherwise penalize an employee for engaging in a private relationship where there is no genuine conflict of interest. Thus, where two employees wish to date and have no supervisory authority over one another, typically the relationship may not be prohibited, absent proof that the relationship actually interferes with the employees’ ability to perform their jobs.

Marital Status

California prohibits discrimination based on an individual’s marital status, which is broadly defined in the California Code Regulations. 2 Cal. Code Regs. §7292.1(a). There are three ways in which an employee or applicant may attempt to show discrimination based upon his or her marital status: 1) the fact that the applicant or employee is not married; 2) an applicant’s or employee’s “single” or “married” status; or 3) the employment or lack of employment of an applicant’s or employee’s spouse. However, employers do have the right, when employing a married couple, to refuse to place both spouses in the same department, division, or facility if the work involves potential conflicts of interest which are greater for married employees. Policies unconditionally prohibiting employees from being married to one another may violate the law, although most interpretations of this law still permit employers to prohibit a married couple from working in a supervisor/subordinate relationship.

Tape Recording

Generally, it is a crime for any person, intentionally and without the consent of all parties to a confidential communication, to eavesdrop on or record the communication by means of any electronic, amplification, or recording device. This prohibition applies to personal conversations
as well as telephonic communications. Put simply, the law generally prohibits people from tape recording conversations without the permission of everyone in the conversation. Penal Code §632.

On the other hand, employers may legally monitor and record business-related telephone conversations of employees who deal with the public, such as salespersons and customer service personnel. Prior notice to everyone involved in the conversations is required.

Video Surveillance

Video surveillance of public areas in the workplace is generally permissible. Employers may also conduct surveillance of specific workers when there is a basis for suspicion for prohibitive conduct. However, the key is to gauge the employee’s reasonable expectation of privacy in the area to be recorded. Employers may use undercover security agents posing as fellow employees or as customers, but any surveillance must be limited to non-private areas.

Video surveillance in restrooms, locker rooms, or other similarly private areas is prohibited unless authorized by court order. Labor Code §435.

Medical Records

The California Confidentiality of Medical Information Act strictly limits an employer’s use and disclosure of employee medical information. An employer must establish appropriate procedures to ensure the confidentiality of employee medical information and its protection from
unauthorized use and disclosure. Civil Code §56.20(a). Such procedures may include instructions regarding confidentiality to employees handling files, or the use of security systems to restrict access to such files.

Further, the California Health and Safety Code precludes employers from testing applicants and employees for AIDS/HIV, as well as from making employment decisions based on such tests. Health & Safety Code §120980(f). The law subjects the employer to liability for unauthorized disclosure of these test results, and where an employer demands such a test and terminates the employee who refuses, the employer may be liable in a wrongful termination suit.

Drug Testing

Any applicant for employment may be drug tested without a showing of cause so long as the employer tests all applicants in the same job category. Even if the applicant puts off the drug test until after beginning work, this rule still applies. However, privacy laws prohibit an employer from requiring current employees to be tested for drug use unless the employee is working in a safety-sensitive position or the employer has reasonable suspicion that the employee has violated the employer’s drug policy. Current employees are protected from generalized testing even if they experience a change in employment status, such as a promotion.

Random drug testing of current employees in safety sensitive positions is permissible, but advance notice of the random drug testing policy should be given.

Social Security Numbers

California has Social Security number privacy legislation intended to thwart identity theft. Civil Code §§1798.85 et seq. Pursuant to these laws, all persons and entities, including employers, are prohibited from:

  • publicly posting or displaying an individual’s Social Security number in any manner;
  • printing an individual’s Social Security number on any card required to access

products or services provided by the employer—including insurance cards, employee identification cards, security badges, and similar identification tools;

  • requiring an individual to transmit his or her Social Security number over the Internet, unless the connection is secure or the Social Security number is encrypted;
  • requiring an individual to use his or her Social Security number to access an Internet site, unless a password or unique personal identification number or other authentication device is also required to access the site; and
  • printing an individual’s Social Security number on any materials that are mailed to the individual, unless state or federal law requires the Social Security number to be on the document mailed (e.g., mailing I-9 and W-2 forms). Notwithstanding this provision, applications and forms sent by mail may include Social Security numbers.

A Social Security number that is permitted to be mailed cannot be sent on a postcard or other mailer not requiring an envelope, or where the number is visible on the envelope or without the envelope being opened.

While the employee cannot waive these rights, the law has two exceptions applicable to employers (Civil Code §1798.85(b)-(c)):

  • it does not prevent the use of Social Security numbers for internal verification or administrative purposes; and
  • it does not prevent the use, collection, or release of a Social Security number as required by state or federal law.