Chapter Four: Building A Legally Sound Privacy Policy For Your Business

Why A Written Privacy Policy Is Essential

One of your best defenses against legal problems is a written privacy policy. This policy must provide clear guidelines on how your employees’ data will be collected, used, and protected. This policy helps ensure compliance with privacy laws and regulations and gives your employees a clear understanding of their privacy rights.

A written privacy policy also helps protect your company from legal risks and demonstrates a commitment to protecting your employees’ privacy.

Key Elements Every Workplace Privacy Policy Should Include

Your privacy policies should be tailored to the type of activity that could potentially result in a violation of employee privacy. For example, video surveillance in the workplace is quite common. Audio surveillance is less common, though some California employers implement both.

To cover both, your employee handbook should include a “Video and Audio Surveillance Monitoring” policy that clearly states that monitoring is taking place and that your employees should expect their activities to be recorded at all times when on company premises (with the exception of spaces such as bathrooms, dressing rooms, or any other particularly “private” area). Your policy should conclude with the statement that there is no expectation of privacy while in non-excepted spaces at work.

The same is true for the monitoring of company-owned vehicles. If your business uses such vehicles, you should have a handbook policy that clearly states that company vehicles are being tracked via GPS at all times and that, as a result, your employees have no expectation of privacy when using company vehicles.

In short, any privacy-related policy in your handbook should clearly eliminate any “reasonable expectation of privacy” by stating what kind of monitoring is taking place (e.g., video monitoring, data collection on a company-owned computer, or drug testing).

This lets your employees know what is happening ahead of time and informs them that they have no expectation of any right to privacy in these work-related contexts.

Drug Testing And Privacy Policies

As a California employer, you may find drug testing a challenging area of employee privacy law. The California Supreme Court has established the general framework for drug testing in the workplace. For example, pre-employment drug testing applicants have less right to privacy, as they have not been hired yet.

But once hired, your employees have an enhanced right to privacy that allows for random drug testing only for “safety-sensitive” positions. Other reasons for testing (such as reasonable suspicion of an employee being on a drug, post-accident testing, or testing done with advance notice) are likely valid for existing employees. An employee refusing a drug test could even be grounds for dismissal.

Again, drug testing is an area where you must have a written stand-alone policy that sets forth your drug testing policy, explains the type of drug testing that will be conducted, and obtains employee consent and authorization for that testing.

How Often Should A Privacy Policy Be Reviewed And Updated?

It’s a good idea to review your privacy policies at least once a year, or whenever there are significant changes in California privacy laws or business practices. Regular reviews of these policies can help ensure they remain effective and relevant. An employment law attorney can be a part of that process, helping ensure your policies are detailed, compliant, and comprehensive enough to reflect any recent changes to California law.