Seyfarth Synopsis: California voters gave the green light to recreational use of marijuana with the passage of Prop 64. Marijuana users may have felt like they struck Acapulco Gold, but a review of the law on drug testing in the workplace may turn out to be a buzzkill.

California highway sign with marijuana leafWhen can an employer drug test its employees?

Last November, California voters passed Proposition 64—the Adult Use of Marijuana Act. The new law permits individuals over the age of 21 to possess up to one ounce of marijuana or eight grams of marijuana concentrates. California households, regardless of how many people reside there, can grow up to six plants at a time.

But Prop 64 also expressly protects an employer’s right “to enact and enforce workplace policies pertaining to marijuana.” In other words, despite Prop 64, employers may still prohibit their employees from using the sticky icky. This good news for employers who want to maintain drug-free workplace policies may leave some employees dazed and confused.

Employers have had the right to narrowly craft drug testing policies to meet their needs. Reinforcing that right are Prop 64’s drug-free workplace carve-out and the fact that ganja use remains illegal on the federal level. It remains the case, however, that drug testing may affect an employee’s privacy rights, which create limits on when an employer may drug test.

California courts have used a balancing test to determine whether a drug test is legal for existing employees. Courts weigh the employer’s basis for testing versus the employee’s expectation of privacy. The nature of the test, the equipment used, the manner of administration, and its reliability are factors a court may consider in determining whether a drug test is permissible.

If an employer has an objectively reasonable suspicion that an employee is using drugs, then a drug test is likely permissible, especially when there is a threat to workplace safety. California employers generally have authority to eradicate potential harm to their business and their employees’ safety.

Note: Stay tuned for next week’s blog post on random drug testing by employers.

How should the employer notify employees about its drug testing policy?

If an employer plans to drug test, it should distribute to employees a clear drug policy before employees are subject to testing. The policy should explicitly prohibit the use of marijuana and notify employees of the circumstances in which a drug test would occur. This type of notice may decrease a drug testing program’s intrusion on an employee’s privacy interests.

Some employers may choose to educate employees about how marijuana lingers in one’s body beyond the time the “high” wears off. Because cannabis remains in a person’s system longer than other drugs, it’s possible for an employee to test positive for marijuana use that occurred during non-working time. A marijuana test, unlike an alcohol test, will not indicate whether the test subject is under the influence at the time of the test. Rather, a drug test may show THC in the bloodstream that has resulted from marijuana use days, weeks, or even months before the day of the test.

Under the federal Controlled Substances Act, marijuana continues to be a Schedule I controlled substance whose use and possession is illegal. For that reason, employers remain within their rights to maintain drug free-workplaces that exclude marijuana. In addition, federal contractors, under the federal Drug-Free Workplace Act, must establish drug-free workplaces.

Employers generally have the right to institute an Employee Assistance Program (EAP), which allows an employee who has failed a drug test to attend an assistance program to help curb a substance abuse problem, or to place an employee in a supervised position and withhold certain privileges during a probationary period. Whatever policy an employer enacts, the policy should give employees clear expectations about the situations in which the employer will exercise its right to conduct a drug test for cause.

Is an employer exposing itself to risk by drug testing employees?

Drug testing employees may give rise to claims by employees for disability discrimination, invasion of privacy, and defamation. In addition, employers who fail to uniformly apply drug testing policies risk exposure to a discrimination suit under the Fair Employment and Housing Act. An employer must not single out protected categories of employees for drug testing.

How can Seyfarth help?

Employers should assess their written policies, and training and education of employees to ensure compliance with California’s drug testing laws. Seyfarth’s Workplace Solutions Group is ready and willing to help to make sure your company is in compliance.

Edited by Chelsea Mesa.

Seyfarth Synopsis: Social media information—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the owner’s perspective and documented in real time—can be a  goldmine of information to defend employment lawsuits. Read on for thoughts on how to extract and refine this information, and what limits to observe in using it.

Social media and discovery is an area rife with potential drama: pictures of a plaintiff vacationing in Hawaii after he’s called in sick? Yes, please! How and should we access such juicy information?

Litigation-related discovery of social media content is generally permissible. The main problem is that—both in formal discovery and in other forms of fact-finding—there isn’t a complete picture on how far one can go to obtain it. Below are some tips to help employers stay in the friend-zone while using social media to their advantage in litigation.

Go Narrow! (At Least At First)

In a frequently cited case on the matter, Mailhoit v. Home Depot U.S.A. (C.D. Cal. 2012), the court debated how a defendant could use social media in litigation, and ultimately decided that there is a limited right to discover a party’s social media content. Mailhoit allowed an employer to make “particularized requests”—in that case all social media communications between the plaintiff and her current or former co-workers in any way referring to the lawsuit. But Mailhot said the employer was not entitled to look through the entirety of the plaintiff’s social media information in the hope of “concocting some inference about her state of mind,” and refused to permit other proposed, broader, discovery requests.

But even this limited discovery can be important: once relevance is shown, courts may be more likely to permit additional discovery. Mailhoit suggested that if social media posts are relevant, additional discovery may proceed.

At least one non-California court has already taken this step. In Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. La. 2015), the court ordered an employee to produce an unredacted copy of his entire Facebook page, even though the employee protested that he had deactivated his account. The employer was even entitled to analyze his Facebook messages, which potentially contained a lot of useful information! If a California court can be persuaded that social media communications in some way relate to claims or defenses in the litigation, then they, too, may yield to discovery.

Private vs. Public: Gimme, Gimme!

We know that in California, since 2013, we cannot force employees or job applicants to turn over social media passwords. The California legislation on this point reflects a public policy that recognizes our unique constitutional right of privacy.

But what about publicly available information? California courts agree that there can be no expectation of privacy in publicly posted information on social media websites. See Moreno v. Hanford Sentinel, Inc. (Cal. App. 2009).

This means if the privacy setting on an employee’s Facebook posts is “Public”(i.e., available to anyone on or off Facebook), then anything posted is fair game for discovery. The same goes for publicly available Twitter tweets, publicly available Instagram posts, publicly available LinkedIn info, MySpace page information, etc. Presumably, if someone publicly posts elsewhere (e.g., Reddit, 4Chan, personal blogs), with a link it to the poster’s identity, then those posts may also be accessed and used.

Save, Save, Save!

Social media, like life itself, is evanescent.  Publicly available, incredibly useful information can be here one day, gone the next. Do not rely on information staying up once it is up. To best preserve currently available information, screenshot the information, or print to .pdf. Then save and wait. It doesn’t get much better than seeing the face of a plaintiff when confronted with a photo he thought he had deleted. You know the one: featuring the plaintiff himself, bleary eyed and hoisting a beer, an hour before his scheduled work shift. Or the one showing him wearing stolen merchandise. Or the one showing him partying it up while supposedly suffering from “emotional distress.”

Fake-Friending and Professional Responsibility: Don’t Be a 🙁 

“Fake-friending” is when one creates a fake profile to add a person on Facebook or other social media with the aim of gaining full access to the person’s more limited profile. Rules of professional responsibility for lawyers discourage this practice—(the American Bar Association has recognized at least four areas of concern: (1) confidentiality, (2) truthfulness in statements to others, (3) responsibility regarding non-lawyer assistants, and (4) misconduct). Conducting covert research through fake-friending may also violate California Rules of Professional Conduct, such as Rule 2-100, which forbids “communication with a represented party.” Non-attorneys may be subject to similar ethical responsibilities.  So leave intentional fake-friending out of your litigation arsenal.

Nonetheless, it is not always clear what the limits of these rules mean in practice. For example, would it be OK to accept the help of a third party who has access to shared information (for example, the plaintiff’s co-worker, who has added the plaintiff as a friend online)?

The San Diego County Bar Association released an Opinion (2011-2), stating: represented “parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.” Specifically, the opinion states that if the motive is to obtain information about the litigation, then this conduct can violate Rule 2-100 and constitute deceptive conduct forbidden by the California Business and Professions Code.

Outside of California, other jurisdictions have found that it would be unethical even to ask a third person, whose name a hostile witness will not recognize, to obtain social media information, even if the person states only truthful information.

The Future of Social Media and Regulation: “It’s Complicated”

New apps, social media websites, and ways to share information emerge every day. Unfortunately, the law and public policy often lag behind advances in technology. In some states, we’re already seeing some peculiar stuff going on. In New York, courts have since 2013 held that some service via social media can satisfy due process. In one early case, Federal Trade Comm. v. PCCare247 Inc. (S.D.N.Y. Mar. 7, 2013), the court noted: “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” New York courts have also indicated that social media may be considered an effective means of providing notice to potential class members in class actions. See Mark v. Gawker Media, LLC (S.D.N.Y. 2016).

Workplace Solutions

If you find yourself in a pickle—“to like or not to like?”, “to friend or not to friend?”, “to snoop or not to snoop?”—remember that a friendly neighborhood Seyfarth attorney is just a poke away.

Edited by Coby M. Turner.

Seyfarth Synopsis: Hernandez v. Sprouts Farmers Market, Inc., a case stemming from a phishing scam, emphasizes the need for California employers to implement comprehensive data protection and data breach notification policies and practices for personal employee information under the CDPA.

A story of a company suffering a data breach tops newspaper headlines almost daily. So how can you stay out of the “fuego,” and stay compliant with California laws about your employees’ and customers’ data?

California’s Data Protection Act—“Army Of One”

In 2003 California passed the nation’s first data breach notification statute: the CDPA. Since then, over 30 states have enacted similar statutes, but California remains the national leader in privacy and data security standards.

The CDPA mandates that any business that “owns or licenses personal information about a California resident shall implement and 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.” And it requires a company to notify affected individuals of a data breach “in the most expedient time possible and without unreasonable delay.”

The CDPA takes a very broad view of personal information, defining the term to include:

  • An individual’s signature,
  • A person’s physical characteristics or description,
  • Information collected through an automated license plate recognition system, and
  • An individual’s employment and employment history.

The CDPA also requires that if a company experiences a data breach and decides to offer “identity theft prevention and mitigation services” to affected persons, then it must provide these services to affected persons for at least 12 months and at no cost. Additionally, unlike many other state laws about data breaches, the CDPA requires a company affected by a data breach to submit a sample of the data breach notification letter to the California Attorney General.

“Vultures” Go Phishing At Sprouts

What’s Phishing? In a phishing scam, a fraudulent email message appears to be legitimate, and often directs one to a spoofed website in order to dupe the recipient into divulging private personal information. The perpetrators then use this information to commit identity theft.

In March 2016, a Sprouts employee received an email purportedly from a Sprouts senior executive, asking for the 2015 W-2 statements of all Sprouts employees (which contain social security numbers). In reality, the email was sent by a third-party and was a phishing scam.

When the Sprouts employee received the phishing email, the W-2 forms of thousands of current and former employees were compiled and sent to the third-party. Sprouts later realized the error and notified the affected individuals of the data breach.

Shortly afterwards, a former Sprouts employee filed a class action lawsuit against the company, alleging violations of the CDPA and the California Unfair Competition law. The suit alleges essentially that the employer should have had procedures and policies in place to protect employee information from a phishing attack because such attacks are commonplace in the information age. A First Amended Complaint was filed on May 25, 2016, and Sprouts has not yet filed its response.

Sprouts highlights that it is important for California employers to have a data protection and data breach notification plan. Such a plan is instrumental to head off attacks by hackers and bad actors seeking private employee data to commit identity theft.

“Anything But Me”—What’s An Employer To Do?

The California Attorney General has issued annual reports analyzing data breach notices and providing recommendations to companies and employers for implementing data breach plans, including recommending that companies and employers:

  • Implement the Center for Internet Security’s Critical Security Controls as the “minimum level of information security” if they handle personal data.
    • The Attorney General has stated that“[t]he failure to implement all the Controls that apply to an organization’s environment constitutes a lack of reasonable security.”
  • Implement “strong encryption” for personal information on laptops and other portable devices, and consider full encryption on desktop computers when not in use.
  • Encrypt digital personal information when moving or sending personal information out of their secure network.
  • Encourage individuals affected by a breach of Social Security numbers or driver’s license numbers to place a fraud alert on their credit files and make this option very prominent in their breach notices.
  • Make multi-factor authentication available on consumer-facing online accounts that contain sensitive personal information.
  • Provide training to employees and contractors on data security controls.
  • Improve the readability of breach notification letters.

Seyfarth has ample experience assisting companies and employers to develop these protocols. If you have any questions about implementing a CDPA compliant data protection and data breach notification plan for employee personal information, please reach out to a member of Seyfarth’s Global Privacy and Security (GPS) Team.

Edited by Coby M. Turner.

iStock_000006895318_LargeWe all know that social media and privacy issues in the workplace can be a bone-chilling proposition.  Before you go snooping into your employees’ social media accounts to see whether it’s filled with tricks or tweets, please be sure to review our frightfully informative 2015-2016 Edition of the Social Media Privacy Legislation Desktop Reference.  Without it, one never knows what kind of legislative ghouls and goblins might come back to haunt you. Please click here to learn more.  It’s a scream!

By Chantelle Egan and Laura Maechtlen

Drug testing implicates the California right to privacy, which is enshrined in our Constitution.  Therefore, employers must be careful when drug testing is a component of their onboarding process.

The General Rule  

A private employer in California can require a job applicant to pass a pre-employment drug test as a condition of employment, regardless of the job position, as long as all applicants are subject to the same requirements.  Pre-employment testing is not grounded in any suspicion that the job applicant actually abuses drugs.  Indeed, the California Supreme Court has found just the opposite.  When done correctly, pre-employment “suspicionless” drug testing does not violate the privacy rights of a job applicant because, unlike a current employee, the potential employer has not had an opportunity to observe the candidate’s work habits for indications of substance abuse.  Moreover, by applying for a job, the applicant is voluntarily choosing to reveal personal information in conjunction with the application.

Briefly noted, drug testing of job applicants is permissible as long as the following conditions are met:

  • Notice:  Applicants receive prior notice that a drug test will be required.  The job posting materials should clearly state that passing a drug test is a condition of employment.
  • Consent:  It is a best practice to have the applicant consent in writing to the fact of testing and the procedures to be used.
  • Reasonable Process:  The collection process should minimize intrusiveness and must be administered in a reasonable and reliable fashion.
  • Protected Results:  Procedural safeguards must be in place to restrict access to the test results.  Multiple candidates’ results may not be compiled together.  Nor may a particular candidate’s results be widely distributed.

Timing of the Test

Timing of drug testing is also important.  As a general rule, a pre-employment drug test should occur (and the results reviewed) prior to the date the applicant is hired and begins working for the employer.  Doing so removes any confusion regarding whether the applicant should be afforded the greater privacy protections afforded current employees.

Drug tests of current employees generally must be supported by reasonable suspicion of drug use prior to the administration of such tests.  Random testing is permissible pursuant to a federal mandate (e.g., DOT agency regulations) or if an employee occupies a safety-sensitive position in which a mis-performed duty could have irremediable harmful consequences.

Medical Marijuana In The Golden State

But what if an applicant uses medical marijuana lawfully in the State of California?  A prescription for medical marijuana may protect a person from state criminal prosecution.  But, it does not impose an obligation on an employer to accommodate a potential employee’s use of medical marijuana, even when ingested or smoked only away from the workplace.

Workplace Solutions:  Pre-employment testing is generally permitted if the rules sketched out above are followed.  However, the devil is in the details.  If you have, or are planning to have, a pre-employment testing program, make sure your notices, consents and procedures are reviewed by an expert.  And, once an employee is hired, drug testing should be limited to situations where an employer has reasonable suspicion the employee is using or under the influence of illegal drugs or alcohol while working.  Post-accident testing may be permissible in situations where an employee has caused significant damage to company vehicles, equipment, machinery or other property or a serious injury to himself/herself or another individual.  Random testing should be limited to employees who are in safety-sensitive positions.  Finally—at least so far—it is not discriminatory in the Golden State to refuse to hire an applicant or discipline an employee because he/she tests positive for marijuana, even if the individual has a medical marijuana card.  The use and possession of marijuana remains illegal under federal law.

Edited by Julie Yap

Isn’t it true that nationwide employers can interview and hire employees for their California offices so long as they follow federal hiring laws?  In a nutshell, no way.  Hiring in California presents a host of nuanced, state-specific rules that often add up to “don’ts.” We list a few for you below.

Don’t Oversell

Question:  We really would like to hire this guy.  Is it okay to tell him what he wants to hear about the job?

Answer:  No, especially if he will be moving for the job.  California Labor Code § 970 prohibits employers from making knowingly false representations about the nature of the work, the length of time that the work will last, and the compensation, among other things.  Not only can an alleged misrepresentation serve as the basis for a civil lawsuit, it is also a misdemeanor punishable by a fine or imprisonment for up to 6 months, or both!

Don’t Forget to Exclude The “Puffer”

Question:  We can ask an applicant about criminal convictions, right?

Answer:  Yes, but make sure you do not ask questions about any arrests, detentions that did not result in conviction, or certain marijuana convictions that are over two years old.  If the marijuana inquiry prohibition is violated, an applicant can recover the greater of his or her actual damages or $200, plus attorneys’ fees and costs.  It is also a misdemeanor, punishable by a fine.

Don’t “Judge”

Question:  An applicant owns handguns and goes to the shooting range on weekends to practice.  These are valid reasons not hire him, right?

Answer:  No, if the conduct is lawful, and takes place off-premises and during nonworking hours.  Labor Code §§ 96(k) and 98.6 (c)(1) protect applicants from such discrimination.  If such discrimination occurs, the applicant will be entitled to employment, and reimbursement for lost wages and benefits caused by the acts of the prospective employer.

Don’t Take Solace in Your Arbitration Agreements

Question:  Our company requires new hires in all states where we do business, including those in California, to sign an arbitration agreement.  We won’t have to worry about lawsuits in California court, correct?

Answer:  Not necessarily.  The California Supreme Court held in Armendariz v. Foundation Psychcare Services that “unconscionable” arbitration agreements are unenforceable.  Unconscionability is defined very broadly and includes situations where an employee does not have a realistic opportunity to bargain about the terms of an arbitration agreement, or where the terms are harsh or one-sided.  Some thought the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion would chip away at Armendariz in favor of enforcement of arbitration agreements, but most California courts have refused to part with the Armendariz holding. (See e.g., Compton v. Superior Court).

Don’t Forget The “Paper”

Question:  We follow federal law in the distributions to new employees at or near the time of hire.  We are good to go in California, right?

Answer:  No.  California has specific distribution requirements at or near the time of hire, including:

  • California Labor Code § 2810.5 requires private California employers to provide written notice to employees no later than their first day at work about information including, but not limited to, the rate of pay, basis of pay (e.g., hourly, salary, commission, etc.), allowances for items claimed as part of the minimum wage (e.g., tips, meals and lodging), the regular payday, employer’s name, address, and phone number, any “dba,” and information regarding the employer’s worker’s compensation insurance carrier. 
  • Employers must submit a Report of New Employee(s) (DE 34) within 20 days of any new employee’s first day of work.  Employers must also provide new employees with, among other things, a Disability Insurance Provisions pamphlet (DE 2515) within five days of hire, a Paid Family Leave Insurance pamphlet (DE 2511) no later than any new employee’s first day of work, and a California tax withholding form (DE-4), which some employees must complete upon hire. 
  • The California Department of Fair Employment and Housing requires employers to provide its Sexual Harassment pamphlet (DFEH 185) or an equivalent document to all new hires.

Workplace Solutions: Even if you have only a handful of employees in California, it is prudent to familiarize yourself with the California-specific requirements pertaining to hiring and new employees.  A review of  any employment applications, interview questions, and new hire packets or checklists are all steps to ensure California compliance.

Wouldn’t we like to know if a potential applicant has ever criticized a former employer, or whether their online presence gives evidence of illegal activity or violent, discriminatory or unethical behavior? Or just poor judgment? What if they belong to political groups, like the Tea Party or the ACLU?

What is so wrong with learning information like that? The answer is it can expose the employer to liability.

The use of social media in hiring decisions remains a hotbed of potential legal risk for employers. Yet, an increasing number of employers are using social media sites such as Facebook, LinkedIn, Twitter, YouTube and even Craigslist to screen potential candidates to avoid hiring the “wrong” candidate.

What Can An Employer Look At?  California enacted AB 1844 last year, which affords job applicants greater social media protections by prohibiting employers from seeking log-in information from applicants, asking applicants to “friend” other employees, or asking an applicant’s “friends” to disclose what the applicant has posted on social media.  However, employers are not explicitly restricted from accessing publicly available information about candidates.

  • Bandwagon effect:  Since California passed AB 1844, many other states have followed with similar legislation. On the federal front, the National Labor Relations Board (NLRB) has kept a watchful eye on employers using social media information in employment decisions.  It is worried that concerted activity protected under federal labor laws may be restricted.  On February 4, 2013, the federal government reintroduced the Social Networking Online Protection Act” (SNOPA) which would prevent employers from seeking access to social media and other online information from job seekers and current employees.

­Discrimination Traps.  Social media can reveal personal information about a candidate that would be illegal to request during the hiring process (e.g., physical disability, age, marital status, religious affiliation, political affiliations, etc.).  Employers should be mindful that this may open the door for potential discrimination claims.

  • Example:  An applicant, a mother who tweets that her son is undergoing cancer treatments, is not hired.  She could bring a claim for association discrimination under the Americans with Disabilities Act (ADA), the California Fair Employment & Housing Act (FEHA), or even the Genetic Information Nondiscrimination Act (GINA).
  • Example: A decision not to hire an individual because he or she has sued a previous employer could violate laws prohibiting retaliation under antidiscrimination, wage and hour, or whistleblower statutes.
  • Example: The CA Department of Industrial Relations has interpreted Section 96(k), which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire employees, even though the statute does not explicitly reference hiring. 

Workplace Solutions:  The best practice is to avoid using social media in hiring decisions since there are serious legal risks involved.  If an employer would still “Like” to do this, the following steps can help you mitigate those risks:

  • Document the hiring process.  Include a checklist of the relevant hiring credentials that sets forth the scope of any lawful use of social media information (e.g., if a candidate’s social media background is relevant to the position being filled).
  • Wait Until You Extend the Offer.  If you make an offer and then later discover that a new hire has made a material misrepresentation about prior employment, etc., you can then record the offense.
  • Designate a Screener.  Have a non-decision-maker do the search and only have them report on permissible job-related information.  Filter out the rest.
  • Educate Your Employees.  Instruct HR and management employees to not conduct independent searches on prospective candidates.  Train and educate personnel on how information from or even accessing an individual’s profile on social media and the Internet may give rise to allegations of employment discrimination.
  • Be consistent:  If you are going to use social media in hiring, use it for all applicants, not just some. 
  • Be skeptical.  Remember, not everything on the Internet is true!

Picture this scenario:  you run a private residential facility for abused children.  Late one night, one of your computers is used to access pornographic web-sites and other inappropriate material in violation of several well-publicized workplace policies.  After further investigation, you learn that the inappropriate computer usage occurred on several occasions, but was limited to that one computer, which is located in an office shared by two day-shift employees in the administrative building.  Several employees have access to the building and could have used the computer on the nights in question.  Concerned that the culprit might be a staff member who works with the children, you hatch the perfect plan to catch him or her:  place a hidden camera in the office!  Of course, you don’t want to publicize its placement.  That would defeat the purpose and the guilty party would simply find another computer to use.  Besides, you plan to activate the camera only at night, several hours after the day shift has left the facility.  The daytime occupants of the office won’t care that it’s there.  Genius!

Did we mention that you are operating this facility in California?

The above scenario mirrors the facts of a case brought by, you guessed it, the two day shift employees who brought suit alleging that the placement of the hidden camera in their office without their knowledge or consent violated their right to privacy under both common law and the California Constitution.  What?  Are you telling me that merely placing a camera in an office, without even recording the occupants during business hours, is unlawful?  Fortunately, the California Supreme Court answered that question with a resounding “no” in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).  However, the case makes clear that whether or not you can surreptitiously videotape depends on the facts and circumstances unique to your workplace, and you must carefully evaluate when, where, why and how you can do so in order to minimize your liability.

For starters, in California, employees have a constitutional right to privacy which creates at least a limited right of action against both private and government entities, which is in addition to other tort actions, like unlawful intrusion.  California has a well-developed body of law prescribing the various elements that a plaintiff must prove in order to succeed on an invasion of privacy claim; however, when considering secretly videotaping your employees, these are the big questions you have to ask:

Do employees have a reasonable expectation of privacy in the area that is going to be recorded?  Bathrooms, locker rooms or other areas where reasonable persons would agree employees rightfully expect privacy are strictly off-limits.  However, hallways or entryways where employees interact with the public and one another and expect that their activities can and will be viewed by others are generally areas where a reasonable person would not have an expectation of privacy. 

Do you have a good faith legitimate business reason for secretly videotaping?  Harassment, blackmail or prurient curiosity are never valid reasons for secretly recording your employees’ actions.  On the other hand, the court found the reason articulated by Hillside in our case above, which was to prevent a rogue employee with access to children in a residential facility from accessing pornographic material at the facility, was a legitimate reason that did not offend societal standards.

Is the taping conducted in a reasonable manner, or is it offensive?  Even if secret videotaping is conducted for legitimate business reasons in areas where employees have no reasonable expectation of privacy, the manner in which the recording is conducted could still subject an employer to a breach of privacy claim.  For example, if a camera is zoomed in on a female employee’s cleavage while she’s conversing with a customer, or an employees’ back-side as he/she walks down the hallway, what otherwise would have been acceptable becomes arguably offensive and unacceptable.

Workplace Solutions: In the end, whether, when, why, and how to surreptitiously videotape your California employees should be decided on a case by case basis after full review of the factual circumstances.  Most videotaping does not need to be secret and disclosing your intention to do so may prevent employees from engaging in behavior that violates your policies. 

If you determine videotaping is appropriate, determine whether the purpose of filming can be accomplished with the employees’ knowledge or whether secret taping is required.  If notice is appropriate, consent to the taping is recommended, but notice will typically suffice, especially where the cameras are prominently displayed and in common areas.  Placement of signs, such as “smile, you’re on camera,” in areas where videotaping is taking place is a common way to provide notice of taping.

Drug use in California can cause headaches for employers.  Balancing employee privacy interests against safety concerns forces employers to make tough choices with little guidance.  Legal drug testing of existing employees is so limited that most drug use won’t be detected until after an accident.  With increasing support for legal medical marijuana, many employers have struggled to determine how to respond to applicants and employees who test positive.  Now, with recent case law and the FEHC’s final regulations, employers finally have the support they need.

A Puff of History on Legalized Medical Marijuana  In 1996, California legalized prescription medical marijuana use. It did not, however, address use in the employment context.  California employers had no guidance as to whether or to what extent an employee who tested positive had to be accommodated. 

This left two main questions:

  • Does an employee with a “medical marijuana card” get a pass if he or she fails a drug test because in that context it’s no longer considered an “illegal drug?”
  • Does the fact an employee uses the drug to treat a potentially disabling condition make allowing the use of medical marijuana a “reasonable accommodation?” 

In 2003, the California Legislature added more smoke by saying the Compassionate Use Act does not require any accommodation of medical marijuana use on the property or premises of any place of employment or during the hours of employment.  This implied that an employer must not interfere with an individual’s use of medical marijuana beyond working hours and off the employer’s premises.  Thus, hypothetically, if Joe the forklift operator got stoned in his car right before work to dull his arthritis pain, it was not clear whether his employer could do anything about it.

The Courts Weigh In  Employees got a buzz kill in 2008, when the California Supreme Court concluded in Ross v. Ragingwire that an employer could deny employment based on an individual’s off-duty, off-premises use of marijuana without violating California’s Fair Employment and Housing Act (FEHA) or the constitutional right to privacy.  The Ragingwire employee had his offer rescinded after he failed a drug test, but he had a prescription for marijuana.  He claimed disability discrimination for failing to reasonably accommodate him, but the Court rejected it, concluding that the Act doesn’t limit an employer’s right to enforce its policies regarding failing a drug test, even when the drug is legal (in California) medical marijuana.  It is important to remember that, notwithstanding the Act, all marijuana use is still illegal under federal law. 

Legislative and Regulatory Reaction  Many predicted the Legislature would step in to protect employees using medical marijuana.  In fact, several bills suggesting employment protections similar to those for other prescription drugs died in session. 

Then, in one of its last acts before being dissolved in December 2012, the Fair Employment & Housing Commission added to the discussion by inserting the following language into the new disability regulations: 
                        An applicant or employee who currently engages in the use of
                        illegal drugs or uses medical marijuana is not protected as a
                        qualified individual under the FEHA when the employer acts on
                        the basis of such use, and questions about current illegal drug use
                        are not disability-related questions. 

With that emphatic statement by a binding rule-making authority, employers now can feel confident in denying employment to applicants who test positive for marijuana, even with a prescription.

What about the underlying condition?  It gets tricky, though, when the smoker explains positive test results by mentioning a medical condition that led to the marijuana use.  The employer could still choose not to hire the applicant, or to fire the employee.  However, this decision would be the least risky when the employer applies a zero tolerance policy for marijuana use across the board, and when the position is safety-sensitive (like operating machinery).  The key is to make sure that decisions are made based only on the drug test results, and not on the underlying medical condition.  But, depending on the circumstances, the employer may want to explore other options.  For example, if an applicant for an office job fails a drug test due to off-duty medical marijuana treatment for cancer, the employer may decide to hire anyway — the job is not safety-sensitive and there would be a risk of being sued for discriminating on the basis of the medical condition (cancer) if the applicant were not hired. 

Workplace Solutions When the position is safety sensitive or the company wants its policy to be absolutely zero tolerance, we recommend reviewing to ensure the policy is clear and states that failure of a post-offer drug test will lead to rescinding of that offer.  However, if the policy is more lax and the position is not safety sensitive, consider the impact of accommodating some use if it is to treat a protected medical condition and does not impact the work. 

Also, be mindful that many employees assume if they have a medical marijuana card, they can use without restriction.  Train managers to spot the symptoms of drug use so if employees are working under the influence, the proper steps can be taken.