The rapid expansion of digital monitoring tools has enabled employers to collect detailed data about employees’ activities in the workplace, often without meaningful consent or oversight. From keystroke trackers and facial recognition software to location tracking and real-time productivity dashboards, these technologies are transforming how work is managed.
In California, however, employers must be especially mindful of how and when workplace surveillance is used. The state’s robust privacy protections, including the California Constitution and specific labor laws, impose legal and ethical responsibilities that go beyond those required under federal law.
This article outlines the legal framework governing workplace surveillance in California and provides practical guidance for employers and employees navigating this increasingly complex area.
California’s Legal Framework on Employee Privacy
1. Constitutional Right to Privacy
Article I, Section 1 of the California Constitution explicitly guarantees a right to privacy. This protection applies not only to individuals in their personal lives, but also to employees in the workplace. While the right is not absolute, it creates a legal standard that requires balancing the employer’s legitimate business interests with the employee’s reasonable expectation of privacy.
2. California Labor Code Section 435
Employers in California may not install, maintain, or use any audio or video surveillance equipment in any restroom, locker room, or other area designated for employee changing or similar activities. Violating this provision can lead to civil penalties and, in some cases, criminal charges.
3. California Consumer Privacy Act (CCPA) and CPRA
As of January 1, 2023, the California Privacy Rights Act (CPRA) expanded protections under the
California Consumer Privacy Act (CCPA) to employees. These laws require covered employers to:
- Inform employees about the categories of personal information being collected.
- Explain the purposes for which data is collected and used.
- Allow employees to request access to or deletion of their personal data in certain cases.
This includes data collected through monitoring software, biometric scans, geolocation tracking, and communications monitoring.
Common Types of Workplace Surveillance
Employers may utilize various forms of surveillance for productivity, security, or compliance purposes, such as:
- Monitoring email and internet usage.
- Tracking keystrokes and screen activity.
- Using GPS to monitor delivery or field staff.
- Recording audio or video in common workspaces.
- Analyzing behavioral data through artificial intelligence.
While some of these methods may be lawful, they must be applied transparently, proportionately, and in compliance with California law.
Best Practices for Employers
To ensure compliance and mitigate legal risk, employers should adopt the following practices:
1. Provide Clear Notice
Employers should maintain a written policy that:
- Details what types of monitoring are used.
- Explains the business purpose behind the surveillance.
- Describes the data collected and how it is stored.
- Advises employees of their rights under California law.
Employees must receive this policy prior to or at the time of data collection.
2. Limit Monitoring to Legitimate Business Interests
Monitoring should be narrowly tailored to specific operational needs and should avoid infringing on personal activities, break time, or protected communications (such as union discussions).
3. Maintain Data Security
Employers collecting sensitive information through surveillance tools have a duty to secure that data against unauthorized access or breaches. Failing to do so could result in significant liability under the CCPA and other privacy regulations.
4. Avoid Surveillance in Sensitive Areas
Surveillance is strictly prohibited in private areas such as restrooms and locker rooms. Employers should also exercise caution when monitoring remote workers, especially in home environments, where a heightened expectation of privacy exists.
Employee Rights and Legal Remedies
Employees who believe they are being unlawfully monitored have several avenues for redress:
- Internal complaint through HR or compliance channels
- Filing a complaint with the California Privacy Protection Agency (CPPA) under the CCPA/CPRA
- Pursuing legal action for invasion of privacy or statutory violations
Employees also have the right to request disclosures about the personal data collected from them and may request deletion or correction of that information where applicable.
Conclusion
California’s approach to employee privacy reflects the state’s broader commitment to protecting individual rights in the digital age. As workplace surveillance becomes more sophisticated, employers must ensure that their practices are legally compliant, clearly communicated, and ethically sound. At the same time, employees should remain informed about their rights and vigilant about how their personal information is being collected and used. Employers who fail to address privacy proactively may not only face legal consequences, but also risk damaging employee trust and organizational reputation.
The blog published by Fairchild Employment Law is available for informational purposes only and is not considered legal advice on any subject matter. By viewing blog posts, the reader understands there is no attorney-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a licensed professional attorney, and readers are urged to consult their own legal counsel on any specific legal questions concerning a specific situation.