64 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 4. Employee Privacy—Protection From Intrusions California is at the forefront of the national conversation on privacy and data protection. The California Supreme Court has called the California Constitution “a document of independent force and effect particularly in the area of individual liberties.”1 The California Constitution expressly protects the individual’s right to privacy. Unlike the federal constitution, which generally restrains only governmental action, the California Constitution can restrain private employers. Its privacy provision protects both aspects of privacy: the interest in being free of unwarranted interference with personal autonomy (see § 3 herein) and the interest in being free of unwarranted intrusions (see § 4). The California Constitution and various statutes further both interests. On January 1, 2023, the California Privacy Rights Act (CPRA) amending the California Consumer Privacy Act (CCPA) came into effect, removing an important exemption for employee personal information under the CCPA. This important legislation is discussed in detail in § 4.17 below. 4.1 Drug Testing 4.1.1 Privacy issues Drug testing (through urinalysis and other specimen testing) implicates the California right to privacy. While drug testing of employees for reasonable suspicion is permissible in California, random testing is not, absent (1) a federal legal mandate to do so or (2) a strong case that the particular class of employees being tested would pose some imminent safety or health threat, with irremediable consequences, if allowed to work under the influence of drugs.2 Testing job applicants appears to accord with the guidance provided by California courts.3 The Ninth Circuit has upheld an employer’s “one strike” rule, authorized by a collective bargaining agreement, providing that an applicant who tests positive on a pre-employment drug screen is permanently disqualified.4 Under a San Francisco ordinance, a private employer can have an employee’s blood or urine specimen tested only if the employer has reasonable grounds to believe the employee’s faculties are impaired on the job and the employee works in a position in which impairment presents a clear and present danger to the physical safety of the employee, another employee, or the public. Employers must not engage in random or company-wide testing of blood or urine specimens.5 Effective January 1, 2024, FEHA will regulate the testing methodologies that employers may use to test applicants and employees for cannabis and create liability for employers who do not use a lawful methodology or otherwise violate the law. (See § 3.1.) 4.1.2 Disability discrimination issues Disability discrimination laws protect privacy to the extent that they prohibit certain examinations or questions. For peculiar California law on this point, see § 6.3.4. 4.2 Questions about Certain Arrests and Convictions 4.2.1 State law California, unlike federal law, regulates various forms of employer inquiries about the arrests and convictions of applicants and employees.6
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