Episode 4: Say Cheese: Cameras In The Workplace, On-line Communication, and the Internet Test Bounds of Privacy

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice President of Legal affairs and an expert on employment law. Our podcast today is about employee privacy in the workplace. With me is Ellen Savage, HR Advisor with Cal Chambers, Labor Law helpline. Good afternoon, Ellen.

Hi, Erica.

How are you today?

I'm doing great, thank you.

So, Ellen, hi. You are a veteran at Cal Chamber, and I'm saying that in the utmost complimentary way.

You're not saying I'm old? No.

How long have you been at Cal Chamber advising employers on our labor law helpline?

I've been at the Chamber on and off for a little over 25 years now.

Wow, that's fantastic. So I imagine in the length of time that you've been working at Cal Chamber and helping employers, you have heard just about everything. Every question under the sun.

You know, I think I've heard just about everything. And then there's always that new one, but yes.

So let's talk today about hitting cameras in the workplace. Or more specifically, privacy in the workplace.

Sure.

I imagine you get many questions that revolve around privacy in the workplace.

We do. We get a lot of questions about physical privacy, searching employees, purses or desks. We get questions about technological types of privacy in terms of looking at people's emails. We get questions about hidden cameras. We had one person wanting to know if they could put a hidden camera in the workplace because they thought someone was stealing goldfish out of the tank at night and they wanted to see who it was.

You gotta protect those prized goldfish, don't you? Was it the cat?

You know, I don't know that they ever figured out who it was. Cause I probably told them not to hide the camera.

So, you know, in the news, we've heard a lot about consumer privacy, naturally. And California passed sweeping legislation last year, the California Consumer Privacy Act. But let's face it, there's a lot of privacy issues that happen in the workplace. And as with everything, there are lots that employers need to be aware of or parameters that employers need to be aware of. When we start dealing with the privacy of employees, we always like to at least touch a little bit about the legal issue. This isn't a legal podcast, and we don't want to bore our listeners.

I shouldn't quote the codes, right?

Exactly. But tell me a little bit. What is the main legal framework in California for privacy?

Mostly we look to the California Constitution. We all know that the Federal Constitution presents a right of privacy, but that's against government intrusion. California is one of 17 states that actually has a right of privacy against private intrusion, which is why California employers have to pay so much attention to privacy in the workplace. Everything from drug testing privacy to electronic privacy. The California Constitution is a big source of that. Then there are certain labor codes, like California Labor Code 980 that says we can't make people show us what's on their Facebook page. So there are legal codes as well. And then, of course, there's just a common law right that we always want to be aware of as well.

That brings to mind when you mention the state constitution, which is not a new law. It's been around for quite some time. And then the labor code, when you mentioned Facebook and social media, which is more of a current, contemporary issue, given that time span between the two, I can imagine that you've seen privacy questions evolve from listening to phone conversations or maybe tape recording. There could be listeners that don't even know what a tape recording.

From tape recording to now accessing Facebook accounts. Show me your Instagram account. Can you tell me a little bit about. Because I'm sure that a lot of folks listening today want to know, well, what can I ask anything about an employee's Facebook account? Could you just address a little bit what 980 really is addressing?

Sure, sure. Labor code section 980 basically says that you can't make an employee give you the password to their Facebook account or make them the account in front of you to see what's in there. There is an exception if there's a certain type of investigation going on, but that's really the gist of labor code section980. We can't force people to show us what's in their social media. And as employers, we probably shouldn't be looking at it anyway because we may learn things that could lead to claims of discrimination.

So I shouldn't be Facebooking my colleagues or my. Or the folks that report to me?

No, you probably shouldn't. I haven't gotten a friend request from you yet, so maybe that's why. But people post things on Facebook like, oh, yay, I'm pregnant. Well, maybe they don't want their employer to know that yet, so we shouldn't be digging into those things.

So does this also. We're talking about asking employees, what about applicants? So, you know, in the news, you hear oftentimes of reports where the employer is asking the prospective applicant, hey, can you log me into your Facebook account or can I check out your Instagram account? I just kind of want to See what you're posting out there. Is that okay?

That's absolutely not okay. That's actually the kind of case that caused labor code section 980 to come into existence. Was an employer who was actually doing that saying, I want you to open up your Facebook account. Let's take a look and see what you do on your off time. Of course, California law says that employers can't act based on what you do in your personal life unless there's a conflict of interest with your job.

So.

So employers definitely should not be doing that with applicants.

Okay. So supervisors can be friends with their subordinates at work, but not Facebook friends. So it doesn't mean that I don't think you're fun or cool or anything, right? No.

No.

All right. And then that whole issue applies to applicants, too, during the interview process.

Absolutely. Yes.

So I know that a couple weeks ago, you had published an article in our Alert, which is our almost weekly publication that Cal Chamber publishes. We have a labor law corner for those of that are working on the helpline, and you had a really good article about posting employees photos online. I mean, we're not talking about glamour shots or model pictures of our employees, are we? I mean, what was this about?

Well, sometimes employers want to present an image online of, here's the real us. These aren't fake photos of fake people happily eating our lovely product. This is our real employees. This is who we are. This is who you will see if you come to our business. But sometimes employees don't want their picture out there on the Internet. It may be a privacy issue. They just are a very private person. They don't want their face out there. Sometimes employees have restraining orders or have been the victims of stalking, and they don't want people to know where they work. Some people just don't like the way they look in pictures and are embarrassed to have it. There are even some people who have religious reasons not to. And so we have to be careful forcing employees to appear on our public websites. It also is an issue because California's civil code says that everybody has what's called a right of publicity. Basically, that means if someone's going to use your picture to sell their product or to try to make an impression on clients or customers or potential employees, you have to agree to it. They can't just use your image to market themselves. And so that's why employees oftentimes don't want to be online or have their picture online. So it's an issue employers should be sensitive to.

So let me make sure that I understand this correctly. If I'm an employer and let's say I'm working on some marketing collateral, or maybe I'm producing a catalog and I want to use my employees as the models because they're real people, like you said, how could I accomplish that goal? How could I utilize my employees without interfering or infringing on their privacy rights?

Well, I think the first thing is to get consent. You can have a consent form drawn up where employees understand what their photo is being used for and that they have the right to say no. I would like you to take it down at some point in the future so that consent is really important because once the employee gives consent, then there is no claim that there's an invasion of privacy.

And should that consent is verbal consent. Okay. Or should it really be in writing?

Well, without it being in writing, how are we going to prove it when the employee says no, I never agreed. So of course we're always going to recommend that that be in writing.

Good. Good tip. So I understand and I get it, you know, wanting still photos. But as we know, there's a lot of streaming now that goes on. We never know if you're walking at the mall and somebody's video recording you, or you always see those pictures in US magazine. Not that I read US magazine, but they go to Starbucks too, and there's some random picture of a celebrity. With regards to employers, though, and employees, what are some issues that come to mind if an employer decides that they're going to live stream their workplace? Let's say they have a YouTube channel or a website. Let's say it's a production facility and they want to live stream to show to their customers, look, we're really putting the box of See's Candy together or we're really building the widget here.

I think that there's a difference between using a person's image deliberately to market your company versus you are live streaming and someone happens to wander through the background. There's even an exception in the civil code that deals with right to publicity that says if you're sort of the nameless rabble in the background, that this particular code does not apply. Which is why if you go to the local Sacramento River Cats game here and you happen to be caught on the camera and it's, you know, you don't have a right to a lawsuit for that.

But however, don't you think it's still a good idea for employers, even if they're livestreaming their workplace, to let the employees know and to provide consent. So I know that in the legal jargon, there's this notion of reasonable expectation of privacy. Right. Can you explain a little bit about that and how it might percolate and apply into the workplace?

The California constitution generally assumes that everybody has a reasonable expectation of privacy. If I'm walking through the grocery store, I'm aware people can see me. And I should probably be aware that there's video cameras to avoid theft. Anybody can pretty much figure that out. On the other hand, if I'm shopping at Macy's and I go into the dressing room to change clothes, there's a reasonable expectation that it's private and that they're not filming me in there. The same thing applies in the workplace. So we have to ask ourselves, anytime we're going to film an employee or put their picture on the website or look at their email, we would say, would a reasonable person expect that that thing is private? If I bring a purse to work, do I reasonably expect that my boss can just say, open your purse. I want to search it? I think you stole something. The courts have pretty much said we have a right to privacy in those personal effects at work. But there's a really big difference between my purse and my desk drawer at work. Because I own the purse. It belongs to me. That desk belongs to my employer. Can my employer open up my desk drawer when I'm out sick looking for something? Absolutely. Would a reasonable person think that their employer wouldn't do that? I don't think so.

Well, you know, I could see where there could be an issue even with the desk drawer. Right. I think everybody has a desk drawer that they might keep snacks or maybe some medical receipts for their medical reimbursement file. So in order for employers to preserve that right over their property, is it a good idea for them to have policies in place that inform their employers that they shouldn't have an expectation of privacy over some of the employer property?

Yeah. That should extend to, you know, we may look at what's in your desk. If we provide you a locker, we will give you the lock, and we know the combination. When you have email at work, your employer should make it clear that what you do on that email is not private and that even if you change the password, guess what? It can get into that. The policy should be clear of what is private and what is not. The employer can't overreach, though. In other words, just because I decide to write in my policy that I can search your purse or your backpack, as there's a Large lawsuit going on along those lines. You know, just because I say that I might look at it, doesn't necessarily what we call, quote, destroy the expectation of privacy.

And I'm glad that you mentioned email because Lord knows we all use email and I know that many of us have our private emails and our work emails, but, you know, work and personal life oftentimes are blurred. And I'm sure many of us have used our work email for personal reasons. Oh yes, and I think a lot of us might forget that. Yes, it's my own email address to me, but it still belongs to my employer.

Absolutely.

Therefore the employer can come and look at all my emails and any photos of my family that I happen to download or anything to that effect. They don't belong to me, they belong to the employer. So long as I'm utilizing my employer's email address that the employer has given to me. Same is true with a computer that the employer provides to me. Correct. Mm.

I get a lot of calls from employers who say so and so's been out sick. And so in order to catch up on their work, I open their email and guess what I found?

Ah, okay.

Can I talk to the employee or did I invade their privacy and I'm supposed to pretend I didn't see it? They're looking for another job. They're using my email to send out resumes to look for another job. Can I confront them?

And again, I want to press upon the importance of having a policy in place that clearly describes. Sorry, but your email is my email.

Let's take it a step further because we hear a lot about bring your own devices.

Oh boy.

Employees are using their own personal phones. They might connect to the company system, log in, log into the cloud. All the other new technological advances, would that still be company property and searchable? As far as the email that they might access from their personal phones, the.

Email itself is probably accessible. But anything that maybe they download onto their phone or anything that they then keep on what I'll call their part of their phone. There's privacy rights there. And with the incidences of sexting and things like that, it's very difficult to demand to see an employee's personal phone.

Well, and you had to bring up sex and everybody likes to talk about that sometimes. And it reminds me that the last podcast that we did was on sexual harassment, which is one of the reasons why employers do have policies making it clear that they can go on to companies computers if there's a suspicion or they've heard that the employee is looking at pornographic material or there's a complaint of such so that the employer can do the proper investigation and remedy the issue. Well, I know that we're almost out of time, but I wanted to just plant one more thought out there, and that is what I'm hearing more about. GPS tracking.

Oh, yeah, that's a big issue now.

Tracking employers and vehicles and all of the. The wearable devices, even the phones now have tracking mechanisms. Are you starting to receive some questions about that?

We are for a while. Most of the questions had to do with GPS in vehicles. And there actually is a penal code that says that you're not allowed to track people via GPS in vehicles or other movable things is what the code says. But you can track them in their vehicles if you have a written consent. It's the, quote, other movable things that we're now moving into because a lot of employers have employees clock in and out on their own personal cell phones. And employers may not even realize that a lot of those programs, those apps you ask your employee to put on the phone, those have GPS tracking, and you can track your employee 24 7. So if my boss is a big giant fan and finds out that I went to a Dodgers support rally because she can see that on my gps, and I get in trouble, that may be an invasion of my privacy. I'm off. It's the weekend.

Yeah.

But you can see where I am 24 7.

And I don't think employees would want their boss to know what they're doing off time. Right. And bosses really don't need to know what their employees do on their time as well. Well, there's certainly so much to talk about. And just even talking about clocking in and out and all of that raises other issues unrelated to privacy, wage and hour and all sorts of things that could be a topic for another day. But to summarize, what we've talked about today, if I'm understanding correctly, the gist of it, is there is a right of privacy that employees have even in the workplace, even while they're working for you, and that it's really important to get consent to do certain searches, to take photos, to do certain monitoring. Really be mindful about what that reasonable expectation of privacy may be and know that there are some laws out there that are very clear as to when you can and can't monitor.

Yeah. Employees don't give up their right to privacy just because they walk into the workplace.

Well, that's a great place to end today. So thank you, Ellen. I really appreciate you taking the time.

Thank you, Erica.

Join our podcast today and till then we'll talk to all of you again. So thanks for joining us at the Workplace Comment, share and subscribe to Cal chambers podcast@www.calchamber.com.