Right to Privacy

When we talk about the “right to privacy” in the employment context, it is important to note generally we are not talking about the “employer’s” or the “business’” right to privacy. You guessed it, we are talking about the “employee’s” right to privacy and in some contexts, the business’ clients’ rights to privacy.

In California, all persons have a right to privacy. And this right to privacy rises to constitutional proportions, quite literally as the California Constitution guaranties this right to California citizens. Further, California sets forth privacy law in certain statutes and the caselaw.

The primary areas of concern in the employment context are as follows:

• Drug Testing
• Medical Information and Records Pertaining to Employees
• Off Duty Conduct Not Related to the Workplace
• Workplace Video and Voice Surveillance/Monitoring

California privacy laws are obviously too complex to address in a single web page (and in case you haven’t already figured this out, that goes for all other content on our website). But we’ll address some generalities here.

Generally, a violation of an employee’s right to privacy requires 1) a reasonable expectation of privacy by the employee, 2) a violation of the employee’s reasonable expectation of privacy by the employer, and 3) damages.

As you might guess, one key way for an employer to defeat an employee privacy claim is to eliminate any “reasonable” expectation of privacy by the employee. To do this, employers state in writing there is no privacy in the workplace when using company facilities (except restrooms and changing facilities of course) or equipment, including desktops and laptops, mobile devices, e-mail, lockers, offices, desks, cars, trucks, etc. Employees should be informed in writing company facilities and equipment shall be used for company purposes only and can be searched at any time without notice. The company’s employee handbook is a good place to make these statements.

Concerning drug testing, in California, be wary of drug testing employees at will. This is not advisable as California case law has developed to provide certain protections, particularly to current employees in non-safety sensitive positions.

While video and voice monitoring may seem like a prudent business practice for some businesses, caution should also be exercised here even if full disclosure of the video/voice surveillance is made in writing to employees. California Penal Code section 632 prohibits the recording by electronic means or eavesdropping upon any confidential communication without the consent of all parties involved in the communication.

Privacy law in California is fact intensive and evolving. Consult an experienced and knowledgeable California attorney for advice in this area.

Vision Law® Corporation believes employers can save time, money, and unnecessary disruption to their business through effective, proactive efforts. That is why we have created our innovative fee programs for businesses. We invite you to consider how cost-effective representation could save your company millions, or simply save your company. Then contact us for an initial consultation about your employment and labor law needs.