Employee Privacy Rights in California

California “employee privacy rights” refers to the rights that protect employees from employers intruding on their personal affairs and probing into their personal matters. These inalienable rights are largely guaranteed by Article 1, Section 1 of the California Constitution. They are also established via the State’s 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 their employees’ personal information. For example, while companies can generally monitor an employee’s communications on company-owned equipment (such as emails on company computers), they cannot ask for login credentials to their 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 a worker’s criminal history. The bill says that:

1. employers cannot inquire into an applicant’s 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 its employees 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 a worker’s confidential communication.

Our California labor and employment attorneys will address the following in this article:

• 1. Can an employer monitor an employee’s email and social media?
• 2. Are background checks allowed?
• 3. What are California’s “ban the box” laws and are questions allowed on criminal history?
• 4. Are video surveillance and audio recordings allowed in the workplace?

California’s privacy laws essentially say that there are certain things that California employers can and cannot do in relation to their employees’ personal information.

1. Can an employer monitor an employee’s email and social media?

California employers are generally allowed to monitor an employee’s workplace communications. This means they can typically access a worker’s:

• business phone calls,
• computer use,
• emails or electronic communications, and
• voicemail messages.¹

As to phone calls, employers usually have the right to access text messages on company-owned cell phones.

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

With regard to social media, California law allows companies to monitor a worker’s 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 current employees 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.²

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 a person’s private information as to his/her history. This includes information about an employee’s criminal history.

Lawful background checks can disclose several pieces of information on a person. Some of these include:

• past criminal convictions (with exceptions),
• negative information on a credit report,
• schools that a person attended (and the dates of attendance),
• social security numbers, 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 a person’s medical information. Most employers can only gather information about an applicant’s ability to perform specific job functions.

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 the person, and
• inform on the business purposes or commercial purpose for collecting the information.

Employers with 5 or more employees can ask about criminal convictions, but they can only do so after making a conditional offer of employment to a candidate.

3. What are California’s “ban the box” laws and are questions allowed on criminal history?

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

1. prohibits employers from inquiring into an applicant’s 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. But they can only do so after making a conditional offer of employment to a candidate.

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

An “individualized assessment” means that the employer has to consider several factors to decide whether or not to hire an applicant. 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 an applicant after conducting this assessment. Note that an employee, though, may have a wrongful termination case if:

1. the employer hires the applicant without performing an assessment, and
2. then fires the person on the basis of his/her criminal history.

4. Are video surveillance and audio recordings allowed in the workplace?

Employers can use video cameras in the workplace provided that:

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

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 a worker when he/she is in:

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

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

• they have a legitimate business interest in the recording, and
• it outweighs the employee’s right of privacy interest.

For example, an employer cannot record a worker if he or she is in an area that demands an employee’s reasonable expectation of privacy (e.g., 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. the employee (or the party being recorded).⁸

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

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

• employers, and
• co-workers.¹⁰

For additional help…

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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 provide a free consultation and trusted legal advice you can rely on.

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