Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 59 3. Employee Privacy—Protected Activities California prides itself on having in its constitution “a document of independent force and effect particularly in the area of individual liberties. ” 1 While t he U.S. Constitution generally applies only to governmental action, the California Constitution reaches aspects of private employment. The California Constitution expressly protects the individual’s right to privac y. 2 O ne aspect of “privacy” is personal autonomy—the individual’s interest in making lifestyle choices free of unwarranted interference (see § 3 herein). Another aspect is the individual’s interest in being free of unwarranted intrusion (see § 4). The California Constitution and various statutes further both interests. 3.1 Off-Duty, Off-Premises Lawful Conduct—Including Marijuana Use Broadly worded Labor Code provisions forbid employers from discriminating against employees or applicants for lawful off-premises conduct during nonworking hour s. 3 T he Labor Code gives employers only two statutory safe harbors: (1) employers may require an employee to sign a contract to avoid any conduct that “is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer’s operation, ” 4 and (2) employers may require a firefighter to sign a contract limiting the firefighter’s “consumption of tobacco products on and off the job. ” 5 Although these provisions were enacted in 1999 and 2001, it remains unclear exactly what they add to a plaintiff’s rights. Even before their enactment, a court citing the California constitutional right to privacy upheld a judgment of tortious discharge against IBM in favor of a marketing manager fired for her romantic involvement with a manager who worked for a rival firm . 6 The cases interpreting these provisions have suggested that they are not as broad as a literal reading of them might suggest and that they merely codify existing constitutional rights, rather than adding a new basis for a claim of wrongful termination in violation of public policy. One case upheld the dismissal of a supervisor who was fired for dating his subordinate in violation of his company’s anti-fraternization policy . 7 A second case upheld the dismissal of a hospice employee who was suspected of engaging in an unlawful investment scheme . 8 California has legalized marijuana for both medical and recreational us e, 9 b ut using marijuana remains prohibited by federal law, and California still permits employers to prohibit its use by employees and job applicants . 10 California, while generally eager to lead the way in creating employee protections, has lagged behind other states in giving job protections to applicants and employees who are authorized to use medical marijuana . 11 3.2 Disclosure of Wages California employers must not prohibit employees from disclosing the amount of their wages. More specifically, employers must not (1) require an employee to refrain, as a condition of employment, from disclosing the amount of the employee’s wages, (2) require an employee to waive the right to disclose the amount of the employee’s wages, or (3) discharge, discipline, or discriminate against an employee for disclosing the employee’s wages . 12 California courts interpret “wages” in this context broadly to include bonuses . 13