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California Employee Privacy Issues

Our law firm represents employees who claim discrimination based on age, sex, race, religion, or are whistle blowers reporting state or federal financial fraud. In many of the initial client interviews, we hear evidence of collateral wrongs such as invasion of privacy. This can be particularly true when the California employer (and we’ve sued hundreds of them including 300 or so of the Fortune 500) suspects an employee is gathering evidence to use against them. So lets look at California privacy laws as they might affect the workplace.

The California Constitution Article One, Section 1 provides the “inalienable right” of privacy, and this has been held to create a private cause of action. Hill vs. National Collegiate Athletic Ass’n, 7 C4th 1 ((1994). The California Supreme Court has held that this state right is actually broader than rights under the federal constitutional protections. American Academy of Pediatrics v s. Lundgren, 16 C4th 307 (1997). Privacy is generally protected under informational privacy and personal conduct decisions. (California Constitutionalcauses of action are governed by a three-year statute of limitations, similar to the Labor Code. We routinely add a fourth year under the Business and Professions Code for unfair business practices.

We received a call last week from an employee who claimed he was required to participate in an investigation regarding theft of cash from his retail employer. In California, an employer does have the right to require participation and may fire an employee who refuses. Fermino vs. Fedco, 7 C4th at 723. Part of this decision was based on Labor Code 2856, which states that an employee shall substantially comply with all the directions of his employer except where such obedience would impose new and unreasonable burdens on the employee.  However, an employer is never allowed to forcibly detain an employee for the purpose of compelling a confession. Moffat vs. Buffum’s, Inc. 21 CA2d 371 (1937). Similarly, an employer may not detain and threaten with criminal prosecution if confession to a theft was not forthcoming. Parrott vs. B of A, 97 CA2d 14 (1950).

Some employers will claim “merchant’s privilege” to detain. This defense is used properly when someone is apprehended in the process of theft, but it does not extend to later interrogations of suspected employees.

Can an employer ask you about your medications?  Generally, no, they can’t, however, there can be some limited circumstances where it is ok. A job applicant may not be required to disclose confidential medical information or submit to a medical exam “in the absence of reasonable justification” for the tests. Loder vs. City of Glendale, 14 C4th at 896.  The Americans with Disabilities Act does not limit pre-employment physicals but does guarantee the confidentiality of this information. 42 USC Section 12112.

Generally, a blood test can be called for as part of a pre-employment physical as long as it is clear to the applicant what is being tested. In Leonel vs. American Airlines, 400 F 3d at 713, the four plaintiffs who were applying for flight attendant jobs were not told that they were being tested for HIV. This violated their rights.  In another case, the employer was deemed in violation of privacy rights when it received a detailed analysis from a  psychiatrist retained to evaluate whether the employee was entitled to stress-related disability leave.

Drug testing is determined by a reasonable balancing test-the test’s intrusion on the reasonable expectations of the employee against the employer’s alleged legitimate “need to know”. Indirect monitoring of a drug test (as opposed to having an employer representative observing the collection of urine) has been called a “negligible intrusion”. Suspicion-less drug tests is allowed only under limited circumstances. For example, are all new hires required to take it? If so, probably its ok. However, some cases (especially in public employment) are not allowed when there is no special need for screening, such as a library assistant. On the other had, teacher drug testing has been allowed on the grounds that public interest outweighs any privacy. In California, existing employees are generally not required submit to testing unless the job is a safety or security sensitive position. Smith vs. Fresno Irrigation District, 72 CA 4th 147 (1999). In this case, the court allowed testing since the employer had an interest in the safety of co workers at a construction site. (Remember that federal DOT regulations may require random drug tests of struck drivers, couriers and others engaged in interest commerce. Carroll vs. Federal Express, 113 F 3d 163 (9th Cir. 1997). State rules do limit off-duty hours testing to those situations in which it is contiguous with working hours. Edgerton vs. State Personnel Board, 83 CA 4th at 1361.

In our next blog, let’s look at employee privacy at the computer. Definitely a fast-changing area of law in California.