Employee Privacy Compliance

California is one of only seven states that provide a constitutional right to privacy. California has specific statutory protections governing the retention and disclosure of personnel records, medical information, credit information, criminal records, and social security numbers, among other things.

Many states permit one party to record a conversation with another person without obtaining the other’s permission. However under California’s Penal Code a person may not generally record the confidential communication with another without that other person’s consent. An employee should not secretly record their supervisors, managers or Human Resources personnel.

The EEOC does not expressly prohibit the use of arrest and conviction records in making employment decisions. However, the EEOC’s position is that employer policies that prohibit employment because of any kind of prior criminal activity could limit the employment opportunities of some protected groups and thus cannot be used in this way. People in minority groups are arrested and convicted of crimes more frequently than others. The EEOC’s position allows an employer to ask about arrest and conviction records, but points out that the fact of an arrest alone does not mean the applicant has committed a crime. Employers should allow an applicant to explain the circumstances and make a reasonable effort to determine if the explanation is reliable. Even when the employer believes the crime was committed, there should be an allowance for the nature of the job, seriousness of the office and the length of time since it occurred.