California Employees Have Privacy Rights in the Workplace
The California Constitution protects individuals from invasions of privacy caused by both government and private actors, even in the workplace. However, several court cases have set boundaries as to how far the right to privacy extends to the workplace. Though an employee may face several privacy concerns, only a few may be protected by California law.
Employees Have a Reason Expectation of Privacy
To determine whether an employer has violated an employee’s right to privacy, courts will assess whether the employee had a reasonable expectation of privacy and whether the employer committed a serious invasion of privacy. See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th, 15-16 (1994).
California Attorney General Rob Bonta published a notice that employers are generally allowed to monitor employees’ communications made through business phone calls and computer usage. Digital communications often leave digital footprints, allowing employers to access even deleted messages if the employee is using the company’s Wi-Fi network. Employees who use company technology should expect some level of monitoring, so privacy protections are limited. However, if an employee is using personal devices, employers do not have the right to request access to those devices.
Furthermore, California courts have set limits to employers’ ability to record conversations communicated on company phones. In Rojas v. HSBC Card Services Inc, 228 Cal. Rptr. 3d 640 (2018), the court held that an employer violates an employee’s privacy rights by recording an employee’s confidential call, even if the employee is using a company phone. Employers have the right to video record in certain areas of the Workplace Harassment that don’t include restrooms, locker rooms, or any other area that an employee has reasonable expectation of privacy.
Although California courts have not fully addressed how privacy rights apply when an employee works remotely from home, general monitoring guidelines for in-office work are likely to apply. Essentially, if the employer provided any technological devices to the employee, such as computers or smartphones, the employee should expect some monitoring behavior.
You can also read: Social Media Activity Outside of Work Can Constitute Discrimination and Harassment
There Are Limits to Drug Tests
California laws generally allow employers to require drug tests as a condition of employment after a job offer is made but before the employment begins. However, employers cannot require current employees to undergo random drug testing unless the employee has a safety-sensitive position, or the employer has reasonable suspicion that the employee is working under the influence of drugs.
In 2024, California passed a new drug testing law stating that employers cannot discipline or fire an employee solely based on a positive drug test unless the employee was impaired during their work hours. (Cal. Gov. Code § 12954 (2024)).
Medical Information is Private
The Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) govern the privacy protections of employees’ medical records. Information that is related to disabilities or health conditions must be kept in secure spaces and limited to authorized personnel.
In Hurley v. Cal. Dep’t of Parks & Recreation, 20 Cal. App. 5th 634 (2018), the court recognized that employers have a duty to secure employees’ sensitive personnel information even if it is not related to the employees’ medical records, such as parole status or reason of termination from previous employment.
An Employer Can Review Social Media in Making Business Decisions—including Hiring Practices
Lastly, California Labor & Employment Attorneys Code § 980 prohibits employers from requesting or requiring employees to disclose personal social media information or access their accounts, except when investigating workplace violations. However, an employer may still review public social media profiles when making employment decisions, so long as the employer is not using the employee’s public profile to discriminate against them.
FAQs:
Employees in California have the right to privacy in personal communications, medical records, and personal belongings. However, employers can monitor work-related activities within legal limits.
Employers can monitor work emails and phone calls, but personal communications made on personal devices or accounts are generally protected.
Employers cannot record employees in private areas like restrooms or locker rooms. In public workspaces, recording may be allowed with notice.
Yes, but they must get your written consent and follow California’s background check laws, which limit how certain information is used.
If you believe your privacy rights have been violated, you can file a complaint with the California Labor Commissioner or seek legal advice from an employment lawyer.