©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 67 4.6.2 Restrooms, locker rooms, changing rooms California employers must not use or cause to be made any video or audio-taping of employees in a restroom, locker room, or any room that the employer has designated for changing clothes, unless authorized by court order.29 4.6.3 Secret videotaping in open areas The California Supreme Court has held that employees have the right to privacy, even in an open workplace, against intrusions by members of the general public.30 The California Supreme Court in one case held that employees have reasonable expectations of privacy against their employer, with respect to their activities in a closed shared office.31 The employees sued their employer upon discovering that it had installed a covert video camera in order to catch night-time intruders in the office shared by the plaintiffs, who worked only during the day. The Court of Appeal held that the plaintiffs could sue for invasion of privacy even if the camera never actually observed them, on the theory that mere intrusion into their workplace solitude was actionable. The Supreme Court reversed this odd result because, although the employer did intrude upon the plaintiffs’ privacy, the surveillance—being narrowly tailored in place, time, and scope, and reflecting legitimate business concerns—was not highly offensive and never caught the plaintiffs on videotape. 4.7 Medical Records 4.7.1 Civil Code § 56 California employers must establish procedures to keep employee medical records confidential (e.g., implementing a security system restricting access to medical information).32 California employers must not— unless complying with court orders, administering employee benefits, litigating medical issues the employee has put in controversy, or determining eligibility for medical leaves—use or disclose medical records unless the employee has signed a special release.33 California employers must not discriminate against an employee who refuses to sign that release, but may take necessary action in the absence of medical information if the employee refuses to sign the release.34 (See § 3.6.1.) The release must meet several requirements, e.g., the language must be separate from other language, and must be in no smaller than 14-point font. Moreover, the release must authorize only the release of medical information, must be limited in time and purpose, must specify who may disclose the information, and must contain an advisory that the employee is entitled to a copy of the release.35 4.7.2 Labor Code § 3762—workers’ compensation insurers In workers’ compensation proceedings, the employer’s insurance carrier or a third-party administrator often receives medical information about an employee (in, for example, a deposition transcript or medical report). The Labor Code forbids disclosure of this information to the employer, except as to (1) the diagnosis of the condition for which workers’ compensation is claimed or treatment is provided, and (2) information needed to modify the employee’s work duties.36 4.8 Social Security Numbers and Other Personal Information 4.8.1 Limits on use of SSNs No person may print an individual’s social security number (SSN) on materials mailed to the individual, publicly post SSNs, print them on password cards, or require their use to access a website.37 Nor may a person require an individual to transmit a SSN over the Internet unless the connection is secure or the SSN is encrypted.38
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