There is a general presumption that workplace privacy does not exist under any circumstances. However, that is not always the case. The state Constitution grants privacy rights and a private right of action to file a lawsuit against employers who violate those rights. It states in relevant part that: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, pursuing and obtaining safety, happiness, and privacy.”
The courts have decided that the main issue is whether the employee has a “reasonable expectation of privacy.” So, for example, employers are allowed to monitor internet usage or business email communications. Nevertheless, employers are not permitted to conduct surveillance in bathrooms or locker rooms. An employer may be held liable for disclosing the employee’s termination reasons, arrests, convictions, credit reports, misconduct reports, medical information, or confidential communications.
Employers are usually interested in social media activities of their actual or potential employees. They may review their social media accounts to make hiring decisions. However, California Labor Code § 980 prohibits employers from requesting disclosure of usernames or passwords of social media accounts. It also prohibits employers to require the employees to access personal social media accounts in their presence. California Labor Code § 980 states in relevant part that an employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.
The risk of using social media websites during business hours is that it may allow hackers to engage in confidentiality breaches, social engineering, and cyberattacks. Employers may decide to limit or deny access to social media websites (e.g., Facebook, Instagram, Twitter) in order to avoid these complications. Yet, in order to avoid labor-related activities, they should explain the legitimate business interests that are being protected with that policy. In some cases, employees may still use their personal devices to communicate on social media websites. And, in most cases, their personal devices are connected to the employer’s local area network. In other words, they may click and download the malware and spread it on the employer’s computer network.
Nonetheless, employers are permitted to review the employee’s social media profiles and make employment-related decisions. They may look at the employee’s online activities and determine whether the employee is suitable for employment. It is important to note that California is an “at-will” employment state which means that employers can terminate employment for any reason and at any time.
Our law firm assists clients in matters related to workplace privacy rights. It’s important to know your legal rights and responsibilities when involved with workplace surveillance. Please contact our law firm to speak with an internet attorney at your earliest convenience.