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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 75 4.14 Photographing California employers must not photograph employees to provide information to a third person who could use the information against the employe e. 97 If an employee photograph is required, then the employer must pay the cost . 98 4.15 Subcutaneous Identification Devices Subverting the aspirations of intrusive employers (as well as certain concerned parents of wayward teenagers), the California Freedom from Subcutaneous Identification Device Act (our unofficial title only) forbids any person from requiring any individual to undergo the subcutaneous implanting of an identification device . 99 An identification device is anything that can transmit personal information, such as a person’s name, address, telephone number, email address, date of birth, driver’s license number, religion, ethnicity or nationality, photographic, social security number, bank or credit card account number, etc . 100 4.16 Email Usage California employers can minimize employee expectations of privacy by issuing clear written policies. Some employees might expect to have privacy in their electronic communications, even when enabled by the employer’s technology , 101 but the Court of Appeal has held that an employee’s communications to her attorney on her work computer, via work email, were not confidential and thus were not protected by the attorney-client privilege, even though the employee had used her company-issued private password and had deleted the email messages . 102 The employee had no reasonable expectation of privacy, because her employer had a written policy, which she had signed, stating that company technology resources should be used only for company business, that employees must not use company resources to send or receive personal emails, and that the company would monitor its computers for compliance with the policy. 4.17 California Consumer Privacy Act of 2018 The CCPA is highly detailed legislation intended to further California’s constitutional right to privacy by giving consumers an effective way to control their personal information. The CCPA entitles “consumers” to request businesses to disclose categories and specific pieces of personal information that they collect about the consumers, the categories of sources from which that information is collected, the business purposes for collecting or selling the information, and the categories of third parties with whom the information is shared. Businesses must delete personal information upon receiving a verified request, and so on . 103 In 2019, the Legislature amended the CCPA to clarify that “consumers” include employees, job applicants, and contractor s. 104 Employers must disclose the categories or personal information the company has collected and the purposes for which the categories of personal information will be used. Applicants, employees, and independent contractors have the right to (1) request a business disclose what personal information the company has collected, (2) know what personal information is being sold or disclosed and to whom, (3) request and receive a copy of all of the above information in a readily useable format, (4) request that the company delete their personal information (the right to be forgotten), (5) opt out of the sale of their personal information, and (6) be free from retaliation for exercising any CCPA rights. 1 Gerawan Farming, Inc. v. Lyons , 24 Cal. 4th 468, 489-90 (2000). 2 Compare Smith v. Fresno Irrigation Dist. , 72 Cal. App. 4th 147, 165-66 (1999) (reversing judgment for plaintiff in lawsuit alleging wrongful termination when he was dismissed after testing positive for amphetamines, methamphetamines, and marijuana; random drug test was justified by hazards inherent in his employment) with Luck v. S. Pac. Transp. Co. , 218 Cal. App. 3d 1 (1990) (mandatory drug testing of