54 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 3. Employee Privacy—Protected Activities California prides itself on the state’s constitution being “a document of independent force and effect particularly in the area of individual liberties.”1 While the U.S. Constitution generally applies only to governmental action, the California Constitution reaches aspects of private employment. The California Constitution expressly protects the individual’s right to privacy.2 One aspect of “privacy” is personal autonomy—the individual’s interest in making lifestyle choices free of unwarranted interference, as discussed in this section. Another aspect is the individual’s interest in being free from unwarranted intrusion (see § 4). The California Constitution and various statutes further both interests. 3.1 Off-Duty, Off-Premises Lawful Conduct—Including Marijuana Use Broadly worded Labor Code provisions forbid employers from discriminating against employees or applicants for lawful off-premises conduct during nonworking hours.3 The Labor Code gives employers only two statutory safe harbors: (1) employers may require an employee to sign a contract to avoid any conduct that “is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer’s operation,”4 and (2) employers may require a firefighter to sign a contract limiting the firefighter’s “consumption of tobacco products on and off the job.”5 Although these provisions were enacted in 1999 and 2001, it remains unclear exactly what they add to a plaintiff’s rights. Even before their enactment, a court citing the California constitutional right to privacy upheld a judgment of tortious discharge against IBM in favor of a marketing manager fired for her romantic involvement with a manager who worked for a rival firm.6 The cases interpreting these provisions have suggested that they are not as broad as a literal reading of them might suggest and that they merely codify existing constitutional rights, rather than adding a new basis for a claim of wrongful termination in violation of public policy. In certain circumstances, however, courts have recognized limits on the Labor Code’s privacy protections. One decision upheld the dismissal of a supervisor who was fired for dating his subordinate in violation of his company’s anti-fraternization policy.7 A second decision upheld the dismissal of a hospice employee who was suspected of engaging in an unlawful investment scheme.8 California has legalized marijuana for both medical and recreational use,9 but using marijuana remained prohibited by federal law, and California still permitted employers to prohibit its use by employees and job applicants.10 California, while generally eager to lead the way in creating employee protections, historically lagged behind other states in giving job protections to applicants and employees who are authorized to use medical marijuana.11 However, California law changed in a dramatic way as of January 1, 2024. On September 22, 2022, Governor Gavin Newsom signed AB 2188, which amended FEHA to prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, based on: (1) the person’s use of cannabis off the job and away from the workplace (with an exception for preemployment drug screening for psychoactive cannabis metabolites only)12; or (2) a drug test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. There are several exceptions to the new employment discrimination prohibitions: (1) employees in the building and construction
RkJQdWJsaXNoZXIy OTkwMTQ4