66 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 4.3 Polygraph Tests California employers must not require, as a condition of employment, an applicant or employee to take a polygraph, lie-detector test, or “similar” test. Employers may request a person to take such a test, but only after first advising the person, in writing at the time of the test, that the employer cannot require the test.42 4.4 HIV Testing HIV test results cannot be used to determine insurability or suitability for employment.43 4.5 Genetic Testing California employers must not, directly or indirectly, subject applicants or employees to tests for the presence of a genetic characteristic.44 4.6 Tape Recording and Videotaping 4.6.1 Confidential communications It is a crime for a California employer or employee to surreptitiously tape-record confidential communications.45 Violators are liable for civil penalties in amounts of up to $5,000 per violation, or three times any actual damages, whichever is greater.46 The recording may not be used as evidence, except to prove a violation of the statute or if the evidence is relevant in a criminal proceeding, under the “Right to Truth-in-Evidence” provision of the California Constitution.47 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.48 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.49 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.50 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.51 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.52 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 that restricts access to medical information).53 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
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