The right to privacy in California is one of the most important legal rights that residents have. California even provides greater privacy protections to its residents than the federal government offers. In fact, California employees benefit from some of the most protective employment laws across the nation.
While privacy protections are most significant in the home, a reasonable expectation of privacy also extends to employees in the workplace. Article 1, Section 1 of the California Constitution refers to “employee privacy rights” and protects employees from having an employer intrude on their personal affairs or personal matters. California’s Constitution also provides employees with the ability to sue employers for violations of that privacy right. Additionally, the California Labor Codes also protect employees. Below are 4 workplace-related privacy areas employees are entitled to have.
Medical Information
In California, employees have privacy rights when it comes to medical information. California law obligates an employer who received medical information to ensure its confidentiality and protection from unauthorized disclosure.
When an employer sponsors a health plan, it must ensure that the information is used only for administrative functions, like paying benefits. The employer must keep employee health claims separate from other employee data. Employers sponsoring health insurance plans for employees must notify employees about company personell who can access employee medical records. It must also appoint a privacy officer and establish procedures and policies for HIPPA compliance.
When leave is necessary under the Family Medical Leave Act (FMLA) or California’s Family Rights Act (CFRA), the employee is protected from giving medical records. An employer does have a right to request a medical certification. However, an employer cannot require an employee to sign a release or waiver as part of the certification process. That medical certification should contain sufficient medical facts to establish a serious health condition. It does not have to expressly state a diagnosis. Under CFRA, an employee is not required to provide a specific diagnosis.
Medical records relating to workers’ compensation claims, health insurance claims, and disability or medical leaves should be kept in a secure location accessible only to designated staff members.
Social Security Numbers
The California Office of Privacy Protection mandates the protection of an individual’s personal information. This includes social security numbers, primarily because of the role they have come to play in the marketplace, identity theft, and other forms of fraud.
California law specifies protections for employee Social Security Numbers (SSN). Labor Code Section 226 requires employers to print no more than the last four digits of an employee’s SSN or use an employee ID other than the SSN. An employee ID cannot be the same as an SSN. Further, SSN cannot be displayed in mailings or in other communications.
Background Checks
An employer in California can perform a background check on applicants to determine whether they are qualified for the job. Those background checks can be extensive and cover employment history, credit reports, and criminal records. However, California limits how an employer conducts its background checks.
Employees may often be required to give the employer consent. The employer must provide the employee with written notice and disclose the company’s name, address, and telephone number performing the checks. The employee must also be provided with the background check information, a copy of the report, plus any public records obtained.
The Fair Chance Act, also known as California’s Ban the Box law, is a law that restricts when and how employers inquire about a job applicant’s criminal history. Generally, an employer must first consider an applicant’s qualifications before considering a criminal record.
California’s Investigative Consumer Reporting Agencies Act (ICRAA) and the Investigative Consumer Reporting Agencies Act (ICRAs) provides additional obligations for employers using background checks for credit reports. These two acts specify requirements for consumers’ rights to privacy for employment, insurance, and landlord-tenant purposes.
Monitoring and Recording in the Workplace
An employee’s expectation of privacy is limited when a person uses employer equipment, such as cell phones, computers, and laptops. An employer is justified in requiring employees to sign policy documents that expressly state employees have no expectation of privacy when accessing company equipment. That can include phone calls made on work phones and certain correspondence made through work e-mail.
Even still, California employers must exercise diligence if they choose to conduct video surveillance, e-mail monitoring, and listening or recording an employee’s telephone conversations. When employers have a legitimate business purpose of engaging in such conduct, it’s best to notify monitoring and surveillance. This can be done through an employee handbook, memorandum, or even a visible sign.
Contact an Employment Lawyer
The employment attorneys at SANFORD A. KASSEL, A Professional Law Corporation. can help assess your case if you feel your privacy rights as an employee or applicant have been violated. Reach out to us via phone or our confidential contact form here.
