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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 69 closed shared office . 31 T he employees sued their employer upon discovering that it had installed a covert video camera in order to catch night-time intruders in the office shared by the plaintiffs, who worked only during the day. The Court of Appeal held that the plaintiffs could sue for invasion of privacy even if the camera never actually observed them, on the theory that mere intrusion into their workplace solitude was actionable. The Supreme Court reversed this odd result because, although the employer did intrude upon the plaintiffs’ privacy, the surveillance—being narrowly tailored in place, time, and scope, and reflecting legitimate business concerns—was not highly offensive and never caught the plaintiffs on videotape. 4.7 Medical Records 4.7.1 Civil Code § 56 California employers must establish procedures to keep employee medical records confidential (e.g., implementing a security system restricting access to medical information ). 32 C alifornia employers must not— unless complying with court orders, administering employee benefits, litigating medical issues the employee has put in controversy, or determining eligibility for medical leaves—use or disclose medical records unless the employee has signed a special releas e. 33 California employers must not discriminate against an employee who refuses to sign that release, but may take necessary action in the absence of medical information if the employee refuses to sign the releas e. 34 (See § 3.6.1.) The release must meet several requirements, e.g., the language must be separate from other language, and must be in no smaller than 14-point font . Moreover, the release must authorize only the release of medical information, must be limited in time and purpose, must specify who may disclose the information, and must contain an advisory that the employee is entitled to a copy of the release . 35 4.7.2 Labor Code § 3762—workers’ compensation insurers In workers’ compensation proceedings, the employer’s insurance carrier or a third-party administrator often receives medical information about an employee (in, for example, a deposition transcript or medical report). The Labor Code forbids disclosure of this information to the employer, except as to (1) the diagnosis of the condition for which workers’ compensation is claimed or treatment is provided, and (2) information needed to modify the employee’s work duties . 36 4.8 Social Security Numbers and Other Personal Information 4.8.1 Limits on use of SSNs No person may print an individual’s social security number (SSN) on materials mailed to the individual, publicly post SSNs, print them on password cards, or require their use to access a website . 37 N or may a person require an individual to transmit a SSN over the Internet unless the connection is secure or the SSN is encrypted . 38 4.8.2 Duty to protect personal information California businesses owning personal information—such as SSNs, driver’s license numbers, credit card members, medical information—must “maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure. ” 39 A business that “discloses personal information about a California resident pursuant to a contract with a nonaffiliated third party”—e.g., an employer that releases personal information when contracting with third parties for payroll, benefits administration, or background check purposes—must “require by contract that the third party implement and maintain reasonable security procedures and practices appropriate to