Chapter One: Understanding Employee Privacy In California

The Key Laws And Regulations Governing Employee Privacy In California

Let’s start with the basic core laws and concepts that govern employee privacy in California. The California state Constitution defines privacy as an inalienable right that broadly applies to both public and private conduct.

For one, the California Labor Code includes provisions prohibiting an employer from requesting access to an applicant’s or employee’s social media accounts. Employers like yourself must also be aware of regulations that govern the collection and use of employee medical information, Social Security numbers, and 1-9 information. Understanding and complying with these laws is essential for protecting your employees’ privacy and avoiding legal issues.

The Difference Between Personal And Company-Owned Devices

When it comes to privacy, there’s a significant difference between personal and company-owned devices. Overall, your employees have a greater expectation of privacy on their personal devices, even if they use them for work purposes, and you must be cautious about accessing or monitoring personal devices without an employee’s explicit consent.

On the other hand, company-owned devices are generally expected to be subject to monitoring and access by your business, as long as your employees are informed and the monitoring is conducted reasonably and lawfully. Establishing and communicating clear policies is key to navigating these differences and ensuring compliance.

Recent Legal Cases That Have Shaped Employee Privacy

Several major cases have led California’s privacy laws to become what they are today. The California Supreme Court’s decision in Hill v. The National Collegiate Athletic Association (1994) was a landmark case. The Court clarified that the constitutional right to privacy protects individuals not only from government intrusion but from intrusion by private entities, such as businesses.

This case also established a three-part test; plaintiffs must show a legally protected privacy interest, a reasonable expectation of privacy, and a serious invasion of that interest. Importantly, the Court also emphasized that privacy claims must be balanced against legitimate competing interests, such as institutional needs or the safety of the public. Hill v. The National Collegiate Athletic Association not only introduced a structured framework for evaluating privacy claims, but it also reinforced that privacy is not absolute, and must be weighed contextually.

Next, the California Court of Appeals’ decision in Rojas v. HSBC Card Services Inc. (2023) refined how courts interpret consent under the California Invasion of Privacy Act (CIPA), especially in workplace surveillance contexts. This case involved a mother whose personal calls with her daughter (an HSBC call center employee) were recorded by HSBC’s full-time recording system.

Although the Court found that HSBC intended to record the calls and that its internal policies did not prevent personal conversations, it ultimately held that the mother had implicitly consented to the recordings. This implied consent was based on her prior interactions with HSBC, including monthly calls to pay her credit card bill (which included recording disclosures) and the cardmember agreement itself, which stated that her calls may be recorded.

This ruling clarified that implied consent can be established through surrounding circumstances and prior notice, even without explicit reminders at the start of each call. Rojas v. HSBC Card Services Inc. also signaled that businesses using blanket recording systems must tread carefully, as workplace policies alone may not shield them from liability if consent is not clearly established.

Next, the California Court of Appeals’ decision in People v. Lyon (2021) significantly shaped the application of privacy protections under California Penal Code § 632, particularly in contexts involving nontraditional relationships and private residences.

The case involved a defendant who secretly recorded prostitutes during encounters at his home. He argued that such individuals had no reasonable expectation of privacy, but the Court of Appeals firmly rejected that claim. It held that even in the context of prostitution, individuals retain a right to control the firsthand dissemination of their words and images, especially in private settings such as someone’s home.

The ruling reinforced that the right to privacy under California law is not forfeited by the nature of the relationship or activity. It also reiterated that the test for confidentiality is based on whether a party reasonably expects not to be recorded.

People v. Lyon clarified that privacy rights are broadly protected, even in morally or legally complex situations, and that clandestine recording in private settings can constitute a criminal violation regardless of the participants’ roles.

Particular Industries That Face Unique Privacy Challenges

Some industries face specific privacy requirements that must be navigated and complied with carefully. Healthcare providers, for one, must comply with both state privacy laws and federal regulations like HIPAA, which adds an extra layer of complexity.

Similarly, financial institutions (such as banks) must navigate stringent data protection requirements to safeguard sensitive customer and employee information. Tech companies, with their vast amounts of customer and user data, also face significant privacy challenges.

Understanding the specific privacy requirements of your industry is crucial for ensuring compliance and protecting your business.

Common Mistakes Employers Make In Interpreting Privacy Laws

To keep your business safe, it’s important not to make several costly mistakes. One such common mistake is failing to keep up with changes in privacy laws. California’s privacy regulations are constantly evolving, and your business must stay informed to remain compliant.

Another damaging mistake is not having clear, written privacy policies that outline how your employees’ data is collected, used, and protected. Finally, it’s important not to overlook the importance of employee consent; be sure you communicate your monitoring practices to your employees clearly.

Avoiding these mistakes requires ongoing education on the law, clear policies, and open communication with your workforce.