Privacy Rights Lawyer

The California Constitution includes the right of privacy among the “inalienable” rights of all people. California Constitution, Article 1, section 1. In addition, California has adopted several mechanisms to safeguard the privacy of Californians. These include the:

• Online Privacy Protection Act of 2003, California Business and Professions Code sections 22575-22579 (This law requires commercial website and online service operators that collect personal information on California consumers through a website to conspicuously post a privacy policy on the site and to comply with the policy),
• Privacy Rights for California Minors in the Digital World Act, California Business and Professions Code sections 22580-22582 (This law prohibits operators of websites and online services directed to Californians under the age of 18 from marketing to individuals under the age of 18 products or services that the minors are prohibited by law from buying).
• Shine the Light law, California Civil Code sections 1798.83-1798.84 (This law requires businesses, upon request, to provide certain notices to a customer with whom the business has an established business relationship if the business disclosed certain items of personal information in the preceding year to third parties who the business knows, or reasonably should know, used the information for direct marketing purposes),
• California Consumer Privacy Act of 2018, California Civil Code sections 1798.100 - 1798.199.100 (This law generally prohibits businesses from selling your personal information after you request that the business stop selling your personal information), and
• California Privacy Rights and Enforcement Act of 2020 (This law, among other things, creates a dedicated privacy enforcement agency, the California Privacy Protection Agency), California Civil Code section 1798.100, et seq.

California employers can obtain a variety of personal information about their workers and job applicants. Nonetheless, you as an employee do have a right of privacy under California law. For example, your employer may in certain cases violate your right to privacy if it:

1. obtains detailed private information about you from a psychiatrist,
2. searches you or your desk or locker,
3. performs a credit check on you, or
4. discloses your personnel records to third parties.

The specific facts involved are critical in determining whether your rights have been violated.

A prospective employer may obtain an investigative consumer report for employment purposes only if it provides you with a “clear and conspicuous” written disclosure before the report is procured or caused to be made, in a separate document that consists solely of the disclosure. California Civil Code section 1786.16(a)(2).

The Fair Chance Act, California Government Code section 12952, prohibits employers with 5 or more employees from:

• including on a job application, before the employer makes a conditional offer of employment, any question seeking disclosure of your conviction history.
• Inquiring or considering your criminal history before making a conditional job offer.
• Considering information about an arrest not followed by a conviction.

After the employer has made you a job offer, the employer is allowed to conduct a criminal history check on you. However, the employer cannot withdraw the job offer unless:

• It makes an individualized assessment that justifies denying you the position,
• Notifies you in writing of a preliminary decision to withdraw the job offer,
• Gives you a chance to provide additional information, and
• When notifying you of its final decision to withdraw the job offer, it also informs you of your right to file a complaint with the California Department of Fair Employment and Housing.

Your employer should not reveal any medical information it possesses about you unless there is a legitimate business reason to do so. Generally, your employer cannot seek medical information about you from your healthcare provider unless you authorize your employer to do so or the circumstances are such that a law specifically allows it.

Under the law, you have a reasonable expectation of privacy and an employer may not search your belongings whenever or wherever the employer desires to search your belongings. Generally, searches should be conducted only if necessary for a legitimate business reason, such as to prevent theft of large amounts of money or valuables. Searches should also be conducted only if your employer has a policy concerning workplace searches and your employer has notified you of the policy by providing you with a writing. Your employer should not conduct random searches. Your employer should not conduct physical searches of your body.

Generally, your employer may use surveillance if your employer has a legitimate business reason to use cameras and video surveillance, and the areas under surveillance are open and shared places where you should not have a reasonable expectation of privacy, and your employer has informed you about the filming. No surveillance may be conducted in restrooms, locker rooms, or rooms designated by your employer for changing clothes. California Penal Code section 653n; California Labor Code section 435.

Moreover, in situations where searches are proper, the California Supreme Court has ruled that the time you spend on your employer’s premises waiting for and undergoing exit searches is compensable and you must be paid for that time. Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038.

If your employer questions you about personal matters (e.g. sexual orientation or habits), this may be an invasion of privacy.

For purposes of protecting the confidentiality of your Social Security number, your employer may only list the last four digits on your pay stub (wage statement). California Labor Code section 226.

Your former employer may in certain cases be liable for invasion of privacy if it notified third parties of the reasons your employment was terminated.

In Carter v. The County of Los Angeles, United States District Court, Central District of California, Case No. CV 09-07656 DDP (OPx), the Los Angeles Department of Public Works’ Internal Audit Division received an anonymous complaint alleging possible employee misconduct in the dispatch room by a specific employee. The employee’s supervisor, Adams, thought that the misconduct allegation was credible but he did not interview potential witnesses because he feared word of his investigation would spread, compromising the investigation. Instead, Adams chose to install a hidden camera inside of a fake smoke detector in the dispatch room, even though none of the cameras in other areas of the building were hidden. Although it was possible to program the camera to record only during limited periods, such as during the shifts worked by the employee suspected of misconduct, Adams did not restrict the covert videotaping but, instead, allowed it to record continuously for two months. The employer not only discovered that the employee suspected of misconduct had engaged in inappropriate touching with visitors, but the employer also watched for violations of policy by other employees, who were not under suspicion of employee misconduct.

The dispatch room was a secured space with restricted access. Located on the second floor of a building, the room had a window that was usually covered and was too high up to be seen from outside by pedestrians. Both entrances to the room were equipped with a lock system that automatically locked outside of normal business hours. Non-dispatch employees rarely entered the room and when they did they typically knocked to announce their presence before entering. While on duty, dispatchers often worked long shifts alone without leaving their post except for bathroom breaks. During “after hours” shifts, the entire building would be empty except for the dispatcher on duty and security. Given the private nature of the room, employees would sometimes engage in private acts such as pump breast milk or apply deodorant.

Eventually, the hidden camera was discovered and both the employee suspected of misconduct and the other employees who had been videotaped filed suit. The Court ruled that the employer had violated the Plaintiffs’ right to privacy under the California Constitution. The Court also ruled that employees’ Fourth Amendment rights were violated.

If you believe your privacy in the workplace has been violated, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.