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, the state Labor Code and other similar statutes.
Below 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.
Employers usually have the right to access text messages on company-owned cell phones without there being an invasion of privacy issue. 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 like Facebook and Instagram. In fact, employers can even make hiring decisions based on your accounts as long as they are not discriminating against your protected characteristics, such as race, religion, nationality, skin color, gender, gender expression, sex, sexual preference, or age (over 40).
Note, though, that state law prohibits employers from requesting you to:
- disclose a username or password for the purpose of accessing a personal social media account, or
- access a personal social media account in the presence of the employer.
However, employers can ask you to reveal social media relevant to an employee misconduct investigation.1
2. Are background checks allowed?
Background checks are generally legal in California. Some of the personal information included in background checks are:
- past misdemeanor or felony 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.
Note that background checks typically do not include such information as: reasons you left prior jobs, reports of workplace misconduct, lie detector test results, or past relationships with co-workers.
Medical records and drug tests
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.
Regarding drug testing, you can be tested even if there is no suspicion only if:
- you are applying for the job, and every applicant has to get tested; or
- the drug testing is random, and your job is connected to safety or security.2
3. What are California’s “ban the box” laws?
California’s “ban the box” law prohibits employers from inquiring into your criminal history before making a conditional offer of employment.3 This law applies to private employers with 5 or more employees.
If you do have a criminal record, employers cannot automatically disqualify you for your criminal record. Rather, the employer is required to perform an individualized assessment of:
- 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.4
An employer can deny you after conducting this assessment. Note that you, though, may have a wrongful termination case if:
- the employer hires you without performing an assessment, and
- 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 such as union organizing. Also, Labor Code 435 states that a business cannot take a video or audio recording of you when you are in:
- a locker room, or
- a room designated by an employer for changing clothes or lactation.
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.5
California is a two-party consent state. This means that the following two parties must consent to the recording before it can take place:
- the employer (or the party doing the recording), and
- you (or the party being recorded).6
According to one California court, even if you are having a personal phone call with someone using a company phone, the other person you are talking to must consent before your employer can wiretap the call.7
Further, secretly recording your private and confidential conversations can be a crime whether it is done by your employer or another co-worker.8
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.
- California Attorney General’s website, “Workplace Privacy”; California Labor Code 980b. See also City of San Jose v. Superior Court (Supreme Court of California, 2017) 2 Cal. 5th 608. See also Holmes v. Petrovich Development Company (Court of Appeals for the Third District, 2011) 191 Cal.App.4th 1047 (Communications made between an employee and their personal attorney using a business email was not protected by the attorney-client privilege.).
- California Civ. Code §56.20(a)(protections from unauthorized access of medical information); also see California Constitution Article i, Section i. See also Garcia-Brower v. Premier Automotive Imports of CA, LLC (Court of Appeal of California, First Appellate District, Division One, (2020) 55 Cal. App. 5th 961. Note that recreational marijuana use remains a federal crime even though it is largely lawful in California. Also 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.
- Assembly Bill 1008. This law took effect January 1, 2018.
- Fair Employment and Housing Act 12952.
- California Labor Code 435.
- Rojas v. HSBC Card Services (2018) 20 Cal.App.5th 427 (personal phone calls on company phones cannot be recorded unless everyone on the call consents to it as per the Privacy Act of 1967).
- See same.
- California Penal Code 632 PC – Eavesdropping.