The California Constitution says the right of privacy is one of the most important legal rights that residents of this great state possess. The CA Constitution gives employees the ability to sue employers for violations of that privacy right. In order to do so, the employee must show that the employer violated the employee’s reasonable expectation of privacy. This is measured objectively upon widely accepted community and social norms.
Common Privacy Violations at Work:
Monitoring Employee Computer Activity
Privacy issues are also raised when an employer monitors its employees’ e-mails or internet usage or by accessing the employees’ personal files stored on company computers. There are a multitude of various laws that may limit an employer who monitors its employees’ e-mail and internet use. Generally, employers have a right to monitor the use of company computer use. However, this does not necessarily extend to internet usage. This is a complex and evolving body of law.
Drug Tests
Requiring an employee to submit to a drug test without adequate suspicion is permissible only under these limited circumstances:
- If you are an applicant for new job you may be tested so long as all new job applicants are tested
- Random drug tests of existing employees is generally unreasonable without any individualized suspicion unless the employee is in a safety or security sensitive position.
Medical Examinations and Information
Requiring an employee to disclose the medications that she is currently taking or requiring an employee to authorize the employer to acquire information concerning the internal state of the tested individual’s body intrudes upon privacy interests. With some exceptions, job applicants generally may not be required to disclose confidential medical information or to submit to a medical examination.
Other Typical Privacy Violations
- Disclosure of Reasons for Termination
- Co-worker relationships
- Arrests
- Marijuana Convictions
- Lie Detector Tests
- Consumer Credit Reports
- Investigative Consumer Reports
- Workplace Misconduct Reports
- Health or Medical Information (HIPPA)
- Confidential Communications
The Foundation of Employee Privacy Rights – Our California Constitution
Article I of the Declaration of Rights contained in the California state constitution reads as follows:
“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, pursuing and obtaining safety, happiness, and privacy.”
While this law provides citizens with strong privacy protection in their homes, when it comes to privacy in the workplace, the question judges will often ask is whether there exists a reasonable expectation of privacy.
For instance, a person walking across a company parking lot in broad daylight doesn’t have a strong expectation of privacy, and should expect that cameras and audio equipment could be operating in the vicinity. A bank teller who walks into work every day, will come to expect his or her activities are heavily monitored for the safety of employees, the public, as well as the bank’s money.
On the other hand, there is no question that an employee has an expectation of workplace privacy in the following situations:
- While using a restroom facility
- While using a breast pumping room
- While using a personally-owned computer in his or her home
- When sharing personal medical information with an employer, the law requires the employer to safeguard that personal information and prevent access by unauthorized individuals.
Employers and Privacy, Generally
Employee privacy is limited when it comes to the use of social media, company phones, and computer equipment. This may be justified because employers often require employees to sign policy documents (as a condition of employment) that expressly state that the company retains access to such Items as company computers, cell phones and emails. Keep reading to learn about some of the limits to employer power.
Social Media Information
While California employers are generally allowed to monitor employee social media accounts, and even make hiring decisions based on the content of a person’s profile (see following section), California employers are not allowed to request passwords for employee social media accounts. California Labor Code §980(b) states the following:
“An employer shall not require or request an employee or applicant for employment to do any of the following:
- Disclose a username or password for the purpose of accessing personal social media.
- Access personal social media in the presence of the employer.
- Divulge any personal social media, except as provided in subdivision (c).”
Subdivision (c) allows employers to request employees divulge social media that is relevant to an investigation of employee misconduct, or violations of law.
Otherwise, an employer is prohibited from firing, disciplining, or threatening to fire an employee for refusing to cooperate with unlawful requests regarding social media passwords.
Hiring Decisions Based on Social Media
Potential employers may locate and review an applicant’s social media profiles and make hiring decisions based on certain content. For instance, some employers might look unfavorably upon an applicant whose social media accounts are full of images showing the individual ingesting illegal drugs. Or perhaps the applicant has made numerous threats or vulgar slurs directed at other people in online chatrooms, comment sections or message boards. An employer can potentially deny an applicant or terminate an employee based on these factors.
Remember, California is an at-will state. Because of this, it’s recommended you restrict public access to your social media accounts.
That said, if an employer uses social media to make hiring or firing decisions based on a worker’s protected status under California’s Fair Employment and Housing Act (FEHA), there could be trouble for the employer.
FEHA prohibits discrimination based on a person’s race, religion, nationality, skin color, gender, gender expression, sex, sexual preference, age (over 40), as well as other characteristics. It is a violation of law for a business to fire or refuse to hire a worker if the business learns through monitoring social media that the worker is a member of a protected class.
Imagine, for example, a company that employs a 25-year-old woman as a marketing assistant. She consistently produces good work and has been with the company for more than a year. However, a supervisor locates the employee’s Instagram account and discovers the woman is in a romantic relationship with another woman. Suddenly, the supervisor begins using gay slurs in the young employee’s presence and setting impossible deadlines for her to complete. The marketing assistant complains to HR, and is terminated a short time later under the pretext of budget cutbacks.
In this hypothetical situation, the marketing assistant might be able to file a claim against her employer with the help of a good labor attorney.
Privacy, Company Phones, and Other Digital Devices
As mentioned earlier, companies will often require new employees to sign documents acknowledging a policy that the company has the right to access employee emails, phone calls, and other communications performed on company equipment and accounts. It’s a good idea, then, to avoid discussing personal matters on company accounts and equipment as California courts widely recognize the validity of these policies. These company policies include private or personal discussions through any of the following:
- Company email
- Instant messages on company computers
- Conversations on company-owned land lines
- Text messages on company-owned cell phones
For an example of how the courts view these types of company privacy policies, consider the case of Holmes v. Petrovich Development Company, which was considered by The California Court of Appeals for the Third District in 2011.
The case involved an employee named Gina Holmes, who sued her employer, Petrovich Development, for wrongful termination, sexual harassment, as well as invasion of privacy.
The basic facts of the case revolved around mounting frustrations between Holmes and her employer over her pending pregnancy leave. After a particularly frustrating conversation with her boss regarding her pregnancy, Holmes used a company computer to email a labor attorney about the issues she was experiencing. When she later sued her employer, Holmes claimed that her employer violated her attorney-client privilege by introducing into evidence emails between Holmes and her attorney. The appellate court disagreed with her view, and did so in in an unusually strongly-worded decision:
“The emails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard…” the court wrote in its decision.
Continue reading to learn about a case involving company telephone systems and employee policy, and why a court that ruled against the company. If you believe your privacy has been unlawfully violated in a workplace setting, it could be a good time to consult a labor attorney.
Exceptions to Employee Communication Made on Company Equipment
The California Court of Appeals for the 4th District ruled in the case of Rojas v. HSBC Card Services in February 2018. At issue, was a claim by worker Dalia Rojas that her employer, HSBC Card Services, had invaded her privacy by tape recording what she believed were personal and private phone calls on the company phone system.
HSCB had a policy of allowing employees to make personal calls using company phones. However, the company expressly notified employees that their personal calls on these phones may be recorded. During her employment, the company recorded at least 317 of Rojas’s personal calls.
When the appellate court considered Rojas’s case, it relied on the Privacy Act of 1967 for guidance. The appellate court noted, “The purpose of the act, was to protect the right of privacy by, among other things requiring that all parties consent to a recording of their conversation.”
In other words, Rojas may have consented to HSBC recording her phone calls at work, but whomever she was talking to on the other end of the line hadn’t. The legal site lexology.com noted this case will have future repercussions for businesses dealing with privacy issues in the workplace.
“The fact that an employee is aware of phone recording is not enough to avoid privacy issues,” Lexicology noted.
Have Questions About Workplace Privacy? Contact Our Office.
If you’ve learned anything from this article, hopefully it’s that there is a wide range of considerations involved when it comes to workplace privacy. The law may tend to side with companies that notify their employees of email and phone surveillance policies. However, that does not mean companies are immune from answering to claims of privacy invasion.
A good employment lawyer will study the facts of your case, and let you know whether you should proceed with legal action.
If you believe your privacy rights have been violated in the workplace, contact our employment attorney for more information.