Vincent W Davis

Employee Privacy

Employee Privacy

California Constitutional Privacy Protections

Employee Privacy in the workplace?California Constitution expressly provides that all persons have a right to privacy. Article I, §1, states:

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, and pursuing and obtaining safety, happiness, and privacy.

Both public and private employees have this right.

Eavesdropping and Recording Conversations at Work

Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act) (18 USC §§2510-2520) makes it a crime to intentionally intercept any wire, oral, or electronic communication, including electronic mail and video teleconference.

California’s Privacy Act prohibits all of the following:

  • Wiretapping;
  • Eavesdropping on, or recording, confidential conversation without the consent of all the parties;
  • Intercepting cell phone conversations;
  • Opening sealed envelopes containing phone messages without authorization;
  • Using an “extension telephone” (an additional telephone wired to the same telephone line); and
  • Using a  video recording.

Internet, Email and Voicemail and Employee’s expectation of Privacy

The Electronic Communications Privacy Act ECPA of 1986 (ECPA) prohibits unauthorized access to or retrieval of a wire or electronic communication, including stored communications.  This extends to email and voicemail.

However, the USA Patriot Act amended EPCA with respect to wire communications, and now violations of the Wiretap Act can not occur while the transmitted information was in storage, only when it was acquired at the time of transmission.  Therefore, once material and pictures are downloaded to an employer’s computer, they may be subject to the control by the employer.   For example, in one case an employee was terminated for accessing pornographic websites on a company computer used at his home. The company demanded the right to examine the home computer. The employee refused, contending that he had a right of privacy in the computer because it contained personal confidential information. The court concluded that the employee had waived that right when he agreed to the company policy that he had no right of privacy in a company computer.

Employee Privacy as to Employee Blogging and Facebook

Blogs and Facebook can lead to privacy issues with employersEmployees are certainly able to maintain blogs, or even share their entire unmasked open-to-the-world lives and off-work behavior on thei Facebook page, but employees should be careful to consider whether or not they should even though they can. If you are trying to develop a strong professional career path, maybe keeping some things private would be the more-wise choice. Although political speech is protected, blogs that are adverse to companies might be the basis for disciplinary action or termination, but for protections afforded by the National Labor Relations Act (NLRA) which protects the rights of non-supervisory employees to unionize or to act in concert with regard to wages, hours or working conditions.

Using Two-Way Mirrors in the Workplace – Legal?

vation of any restroom, locker room, fitting room, or hotel room, is guilty of a misdemeanorAnyone in California who installs or maintains a two-way mirror permitting surreptisious observation of any restroom, locker room, fitting room, or hotel room, is guilty of a misdemeanor.

Employer Searches of Employee Spaces

Workplace searches may be subject to prohibition against unreasonable searches and seizures and/or the California Constitution Article I, §1.  Employees may have a protectable expectation of privacy in work-space such as an office, desk, or lockers.

However, clear policies allowing for reasonable searches of employee areas, diminish employee’s expectations.  Still, the objectives of any search should be job related and any intrusion should be restricted to what is reasonably necessary.  However, absent voluntary consent or a pre-announced search policy, employers may not conduct general searches of employee’s property or person, even when the employer has probable cause to believe the employee say possesses illegal drugs.  Instead, the search must be confined to items in plain view.

Employee Privacy and Medical Information

Under the California Confidentiality of Medical Information Act (CMIA), employers must have procedures ensuring employees’ medical information (individually identifiable information in possession of or derived from a provider of health care regarding medical history, conditions or treatments) remains confidential and is protected from unauthorized use and disclosure, but there are exceptions.

Drug Testing in the Worplace

When it comes to the random drug testing of private employees, courts look to the employee’s reasonable expectation of privacy.  In Hill v. National Collegiate Athletic Association, the California State Supreme Court held the NCAA could subject student athletes to random drug testing.  The court indicated that only a “legitimate” or “important” interest is required to justify such testing, rather than a “compelling” one.  While the Court was not deciding an employment case it noted that “future claims arising in the employment context will be subject to the elements and standards we announce here.”

The elements are:

  • The employee’s reasonable expectation of privacy;
  • The employer’s special interests; and
  • Public interests arising in the particular setting.

In determining the employee’s reasonable expectation of privacy, relevant factors include the following:

  • Customs, practices, and physical setting surrounding the activities of employment, and the amount of advance notice of testing the employee receives;
  • The amount of discretion supervisors have in choosing subjects;
  • The degree of intrusion involved in actually obtaining the sample; and
  • Safeguards for protecting the confidentiality of the testing process.

As a result testing is generally limited to incidents where there is a“reasonable suspicion.”  This does not go for “safety sensitive” positions though.

Employee Private and Employee’s Private Lives

Employees’ private activities, inside and outside the workplace, are open to employer scrutiny only in the most limited circumstances that directly affect the employer’s business affairs. “Lifestyle” regulation at the workplace may take the following forms:

  • Imposing dress and grooming standards;
  • Prohibiting outside employment;
  • Prohibiting spousal employment; and
  • Intruding in social relationships perceived to conflict with the employer’s business.

Contact a California Labor Law Attorney regarding Employee Privacy

If you have questions about your privacy rights, contact an employment attorney at Vincent W. Davis & Associates to set up a no-cost, no-obligation consultation for a thorough assessment of your unique situation. Most employment issues can be preliminarily discussed by phone, and then if it is necessary to visit us in person, we have several conveniently-located offices in and around the Southern California counties and cities including, but not limited to:

  • Los Angeles
  • Los Angeles County
  • Orange County
  • Riverside County
  • San Bernardino County
  • Santa Ana</li
  • Beverly Hills
  • Anaheim
  • Irvine
  • Long Beach
  • Pasadena
  • And more…

Arcadia Office
150 N. Santa Anita Ave,
Suite 200
Arcadia, CA 91006
Phone: (626) 446-6442
Fax: (626)-446-6454

Beverly Hills Office
9465 Wilshire Blvd.
Suite 300
Beverly Hills, CA 90212
Phone: (310)-880-5733

La Mirada Office
Cerritos Towne Center
17777 Center Court Drive ,
Suite 600
Cerritos, California, 90703
Phone: 888-888-6542

Los Angeles Office
Gas Company Tower
555 West Fifth Street,
31st Floor
Los Angeles, California, 90013
Phone: (213)-400-4132

Long Beach Office
Landmark Square
111 West Ocean Blvd.,
Suite 400
Long beach, California, 90802

Irvine Office
Oracle Tower
17901 Von Karman Avenue,
Suite 600
Irvine, California, 92614
Phone: (949)-203-3971
Fax: (949)-203-3972

Ontario Office
Lakeshore Center
3281 E. Guasti Road,
7th Floor
City of Ontario, California, 91761

Riverside Office
Turner Riverwalk
11801 Pierce Street,
Suite 200
Riverside, California, 92505
Phone: (909)-996-5644

San Diego
Emerald Plaza
402 West Broadway,
Suite #400
San Diego, California, 92101
Phone: (619)-885-2070

Aliso Viejo
Ladera Corporate Terrace
999 Corporate Drive,
Suite 100
Ladera Ranch, California, 92694
Phone: (714) 721-3822