©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 73 4.12 Psychological Tests California prohibits pre-employment or employment-related psychological tests except in extremely limited circumstances.94 California applicants have successfully challenged, as an unlawful invasion of privacy, psychological tests (such as the MMPI—the Minnesota Multiphasic Personality Inventory) that require them to answer questions about their religious beliefs and sexual orientation, even though the test answers were used by only the professional administrators of the test and not by the employer itself.95 Pre-employment psychological examinations are forbidden just as pre-employment medical examinations are (see § 6.3.2). 4.13 Fingerprinting Absent an exception, California employers must not fingerprint employees to provide information to a third person who could use the information against the employee.96 4.14 Photographing California employers must not photograph employees to provide information to a third person who could use the information against the employee.97 If an employee photograph is required, then the employer must pay the cost.98 4.15 Subcutaneous Identification Devices Subverting the aspirations of intrusive employers (as well as certain concerned parents of wayward teenagers), the California Freedom from Subcutaneous Identification Device Act (our unofficial title only) forbids any person from requiring any individual to undergo the subcutaneous implanting of an identification device.99 An identification device is anything that can transmit personal information, such as a person’s name, address, telephone number, email address, date of birth, driver’s license number, religion, ethnicity or nationality, photographic, social security number, bank or credit card account number, etc.100 4.16 Email Usage California employers can minimize employee expectations of privacy by issuing clear written policies. Some employees might expect to have privacy in their electronic communications, even when enabled by the employer’s technology,101 but the Court of Appeal has held that an employee’s communications to her attorney on her work computer, via work email, were not confidential and thus were not protected by the attorney-client privilege, even though the employee had used her company-issued private password and had deleted the email messages.102 The employee had no reasonable expectation of privacy, because her employer had a written policy, which she had signed, stating that company technology resources should be used only for company business, that employees must not use company resources to send or receive personal emails, and that the company would monitor its computers for compliance with the policy. 4.17 California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) The CCPA is highly detailed legislation intended to further California’s constitutional right to privacy by giving “consumers”103 concrete ways to control how their personal information is used by covered businesses.104 The
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