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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 66 4. Employee Privacy—Protection From Intrusions The California Supreme Court has called the California Constitution “a document of independent force and effect particularly in the area of individual liberties. ” 1 T he California Constitution expressly protects the individual’s right to privacy. Unlike the federal constitution, which generally restrains only governmental action, the California Constitution can restrain private employers. Its privacy provision protects both aspects of privacy: the interest in being free of unwarranted interference with personal autonomy (see § 3 herein) and the interest in being free of unwarranted intrusions (see § 4). The California Constitution and various statutes further both interests. 4.1 Drug Testing 4.1.1 Privacy issues Drug testing (through urinalysis and other specimen testing) implicates the California right to privacy. While drug testing of employees for reasonable suspicion is permissible in California, random testing is not, absent (1) a federal legal mandate to do so or (2) a strong case that the particular class of employees being tested would pose some imminent safety or health threat, with irremediable consequences, if allowed to work under the influence of drugs . 2 Testing job applicants appears to accord with the guidance provided by California courts . 3 The Ninth Circuit has upheld an employer’s “one strike” rule, authorized by a collective bargaining agreement, providing that an applicant who tests positive on a pre-employment drug screen is permanently disqualifie d. 4 Under a San Francisco ordinance, a private employer can have an employee’s blood or urine specimen tested only if the employer has reasonable grounds to believe the employee’s faculties are impaired on the job and the employee works in a position in which impairment presents a clear and present danger to the physical safety of the employee, another employee, or the public. Employers must not engage in random or company-wide testing of blood or urine specimens . 5 4.1.2 Disability discrimination issues Disability discrimination laws protect privacy to the extent that they prohibit certain examinations or questions. For peculiar California law on this point, see § 6.3.4. 4.2 Questions about Certain Arrests and Convictions 4.2.1 State law California, unlike federal law, regulates various forms of employer inquiries about the arrests and convictions of applicants and employees . 6 Questions about arrests. California employers generally must not ask applicants, employees, or any other source about the arrest of an applicant or employee that did not lead to a convictio n. 7 Questions about certain convictions or diversion programs. California employers must not ask about an applicant’s or employee’s referral to, and participation in, any pretrial or post-trial diversion program , 8 and must not ask employees about judicially dismissed, sealed, or expunged criminal convictions . 9 California employers cannot ask applicants about certain marijuana-related convictions more than two years old . 10