The State of California ensures of the privacy of employees by several means. Section 96(k) of the California Labor Code prohibits employers from punishing their workers for lawful off-duty conduct. In enacting subdivision (k), the Legislature found that “absent the protection afforded to employees by the Labor Commissioner, an individual employee is ill-equipped and unduly disadvantaged in an effort to assert civil rights guaranteed by Article I of the California Constitution.” The Legislature also found that it is not in the public interest to permit employers to “deprive any employee of any constitutionally guaranteed civil liberties” and that subdivision (k) was necessary to “protect the civil rights of individual employees.” Under the California Constitution, Article I, Section 1, protects against the dissemination or misuse of sensitive and confidential information, interests in making intimate personal decisions or conducting personal activities without observation, intrusion or interference, the freedom of intimate association with others (e.g., marriage, family and sex life), and the freedom of expressive association (e.g., political, social, economic, religious and cultural groups). Privacy right lawsuits often arise out of investigations and drug-tests by employers, including employer examinations of an employee’s email messages.
