Employee Privacy Rights in California – 4 Key Things to Know

California employee privacy rights refer to the rights that protect you from employers

• intruding on your personal affairs and
• probing into your personal matters.

These rights are largely guaranteed by Article 1, Section 1 of the California Constitution. They are also rooted in the state Labor Code and other similar statutes.

California’s privacy laws essentially provide that there are certain things that California employers can and cannot do in relation to your personal information. For example, while companies can generally monitor your communications on company-owned equipment (such as emails on company computers), they cannot ask for login credentials to your social media accounts.

As to workplace privacy and background checks, these are generally legal in California. A background check may disclose:

• past criminal convictions, like a misdemeanor or a felony (with some exceptions),
• negative information on a credit report, and
• immigration records.

Note that Assembly Bill 1008 AB, California’s “ban the box” legislation, provides some restrictions on an employer’s ability to inquire into your criminal history. The bill says that:

1. employers cannot inquire into your criminal history, and
2. they cannot do this until they make a conditional offer of employment.

Note too that employers can generally use video surveillance in the workplace provided that:

• it is for security purposes, and
• the company notifies you of the cameras before recording them.

As to listening in on conversations, Penal Code 632 PC says that it is a crime for an employer or co-worker to eavesdrop on your confidential communication.

Our California labor and employment law attorneys will address four key things to know about employee privacy rights:

• 1. Can employers monitor my email and social media?
• 2. Are background checks allowed?
• 3. What are California’s “ban the box” laws?
• 4. Is surveillance allowed in the workplace?

1. Can employers monitor my email and social media?

California employers are generally allowed to monitor your workplace communications. This means they can typically access such data as your:

• business phone calls,
• computer use,
• emails or electronic communications, and
• voicemail messages.

As to phone calls, employers usually have the right to access text messages on company-owned cell phones without there being an invasion of privacy issue.

Many California businesses have a company policy that tells you that the business has the right to access the above. This means it is a good idea for you to keep private communications off of company-owned equipment.

With regard to social media, California law allows companies to monitor your social media accounts. This includes outlets like Facebook and Instagram. In fact, some employers even make hiring decisions using these accounts.

Note, though, that State law prohibits employers from requesting you to:

1. disclose a username or password for the purpose of accessing a personal social media account, or
2. access a personal social media account in the presence of the employer.¹

2. Are background checks allowed?

Background checks are generally legal in California.

A background check is when an employer or other company screens or reviews your private information as to your history. This includes information about your criminal history.

Lawful background checks can disclose several pieces of information. Some of these categories of personal information include:

• past criminal convictions (with exceptions),
• negative information on a credit report,
• schools that you attended (and the dates of attendance),
• social security number, and
• 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, and
• DMV driving/vehicle registration records.

As to medical records, California law imposes strict requirements that protect the confidentiality of your medical information. Most employers can only gather information about your ability to perform specific job functions. California also has rules when employers may require drug testing.²

Note that some businesses may review the personal information of consumers (as opposed to job applicants or employees) In this event, the California Consumer Privacy Act (CCPA) affords some privacy protections as to this information.

Specifically, the Act says that consumers have the right to ask a business to:

• disclose what information they have on them, and
• inform on the business purposes or commercial purpose for collecting the information.

3. What are California’s “ban the box” laws?

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

1. prohibits employers from inquiring into your criminal history, and
2. performing such an inquiry before making a conditional offer of employment.³

The law applies to private employers with 5 or more employees.⁴

These employers can ask about criminal convictions. Though they can only do so after making a conditional offer of employment to you.

If a company finds information as to past criminal convictions, these laws state that it cannot automatically exclude you from employment. Rather, the employer is required to perform an individualized assessment of you.⁵

An “individualized assessment” means that the employer has to consider several factors to decide whether or not to hire you. Some include:

• the nature and severity of the offense,
• the time that has passed since the offense or completion of the sentence, and
• the nature of the job held or sought.⁶

An employer can deny you after conducting this assessment. Note that you, though, may have a wrongful termination case if:

1. the employer hires you without performing an assessment, and
2. then fires you on the basis of your criminal history.

4. Is surveillance allowed in the workplace?

Employers can use video cameras for workplace monitoring provided that:

• they are for security purposes, and
• the company notifies you of the cameras before recording you.

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 you when you are in:

• restrooms,
• a locker room, or
• a room designated by an employer for changing clothes.⁷

Note that, unless an exception is mentioned above, employers have the right to record you provided that:

• they have a legitimate business interest in the recording, and
• it outweighs your right to privacy interest.

For example, an employer cannot record you if you are in an area that demands your reasonable expectation of privacy (such as a changing room or room provided for lactation).

As to 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:

1. the employer (or the party doing the recording), and
2. you (or the party being recorded).⁸

Note that one California court has stated that the party you are speaking with must also provide consent before an audio recording can be taken.⁹

Further, secretly recording your private and confidential communications is off-limits as it violates your rights. Penal Code 632 also makes eavesdropping a crime. It applies to both eavesdropping by both:

• employers, and
• co-workers.¹⁰

For additional help…

For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We will discuss all your legal options, including possibly a private right of action under state law or federal law.

Disclaimer: Past results are not a guarantee of future results.

Helpful Links:

• California Privacy Rights Act (CPRA)
• Occupational Health and Safety Administration (OSHA)

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Legal References: