Employee Privacy

A recent decision by the First District Court of Appeal in San Francisco reminds that employers must be sure to protect employee privacy. In Life Technologies Corp. v. Superior Court, Case No. A131120 (Jul. 14, 2011), the court reversed an order granting discovery of individually-identifying personnel information in an age discrimination and retaliation lawsuit. The question in such cases is whether there is a "serious invasion" of an employee's "reasonable expectation of privacy," as explained in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 53 Cal.Rptr.3d 513 (2007).

The Court of Appeal identified the following principles for determining the discoverability of personnel records of non-witness third parties: (1) The public interest in preserving confidential personnel information generally outweighs a private litigant's interest in obtaining that information. (2) A private litigant may tilt the balance in his or favor only by showing a compelling need for particular information that cannot reasonably be obtained through depositions or from nonconfidential sources. (3) Even where the balance tilts in the private litigant's favor, the scope of disclosure must be narrowly circumscribed. In the case before the Court of Appeal, the trial court had failed to balance the interests correctly, and had failed to provide sufficient safeguards for the disclosures that it ordered. It should have required notice to the affected employees, and then sealed or severely limited the use and dissemination of the disclosed information.

Here are some additional examples of restrictions on acquiring and disseminating employee information:

(1) Applicants for employment may be subjected to drug screening, but once they become employed, may only be required to undergo drug screening where there is reasonable suspicion of improper activity. Loder v. City of Glendale, 14 Cal. 4th 846 (1997).

(2) Targeting a private office for video surveillance constitutes an intrusion into an area as to which the employee has a reasonable expectation of privacy, but the intrusion is not actionable unless the surveillance captures the employee's image. Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).

(3) Employees may have a privacy interest in their work email and Internet use, but it can be overcome by a warning from the employer that email and Internet use is subject to monitoring and that employees should not expect to have any privacy when using the employer's systems. TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr. 2d 155 (2002).

(4) Employers must not access employees' confidential medical information without consent, and must not retaliate against employees for standing on their right confidentiality of their medical information. Pettus v. Cole, 49 Cal. App. 4th 402 (1996).