With the pandemic came a sharp increase in companies switching to remote work. Instead of long, stressful commutes, workers ate, moved to another room, and started their workday. This new, relaxed setting boosted productivity. It also blurred the line between “office” and “home.”

As employees were handed company phones, company laptops, and passwords to remote servers and software, employers also felt that they had the right to control what their employees did during and even beyond regular work hours. When your employer spends so much time watching what you do, do they ever have the right to monitor you outside of the workday?

Californians are protected by some of the toughest employment laws in the nation. Get to know the different laws and the California Constitution that keep employers from delving too far into your personal life.

California’s First Constitution – Right to Privacy

Since the first California Constitution was approved in 1849, it has undergone hundreds of changes. It covers important topics such as taxes, natural resources, medical research, and the Declaration of Rights.

It’s in the Declaration of Rights where your right to privacy is mentioned. Section 1 states: “All people are by nature free and independent and have inalienable rights.” Further into that right, it states, “pursuing and obtaining, safety, happiness, and privacy.” 

You do have the right to privacy. For your employer to monitor what you do outside of work is often illegal, but not always. They have to prove they meet the criteria for legal monitoring. Courts generally apply a “balancing test” to determine this.

• Legitimate Work-Related Interest: Does your employer have a legitimate, work-related reason to monitor your activities outside of work hours?
• Reasonable Expectation of Privacy: Would any reasonable person expect privacy in this situation?
• Severity of the Intrusion: How deeply does your employer look into your private life and activities?

When you’re not working, you have every right to expect privacy. Your employer must prove that your activities negatively and directly affect their business. If they cannot, they’re not allowed to invade your privacy.

California Penal Code Section 637.7 – Electronic Tracking

One of the easiest ways for a company to track your off-the-clock activities is by monitoring you on company devices. Under California Penal Code Section 637.7, it is illegal for anyone to use electronic tracking to determine another person’s location or movement without permission. 

You should, however, check your employee handbook. There may be rules about the company’s right to track the location of company-owned devices. They usually have the right to track company equipment, such as laptops, phones, or vehicles, during work hours. Outside of work hours is problematic.

If your company uses keyloggers or other software to track your activity on the work laptop, they do have the right to track what you’re doing, but again, laws are usually limited to work hours only.

California Labor Code Section 96(k) – Conduct During Nonworking Hours

California Labor Code Section 96(k) also protects you. It authorizes California’s Labor Commissioner to allow “claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” 

This means that when you’re off the company grounds and not working, you have the right to do what you want. Your conduct must be “lawful.” You could peacefully attend a political protest and not be fired by the company. 

If you enjoy edibles, which are legal in California, your employer cannot fire you for recreational drug use on your week off. You cannot show up to work while impaired, however.

But if you’re using a work laptop to send indecent photos to another coworker on the weekend, that’s a problem. Your employer might have a valid case against your unlawful actions.

California Labor Code Section 980 – Social Media

Most people use some form of social media nowadays. Whether you spend time scrolling through videos on TikTok or post photos to Instagram, your company is not allowed to:

Request or require you to share your username and password

Force you to log into your account in HR or your supervisor’s office so that they can view your private posts or photos. 

Require you to add them as a contact/friend.

Be aware that if you have your profile set to public, they’re allowed to view anything visible to the public. They cannot use the public information and posts you share to force you to share things you’ve posted off-the-clock.

If you’ve made public statements about your salary, benefits, or working conditions, they cannot use that against you. Doing so violates the National Labor Relations Act.

Bring Your Own Device to Work – BYOD

Most companies allow you to bring your personal device into the workplace. You have your smartphone with you in case your child’s school calls. You also bring a tablet to use as an e-reader during lunch. This can create issues you need to consider.

Your IT department may require you to create a Mobile Device Management profile. This gives your company the ability to see your app usage and location. It could even allow them to delete or wipe information.

Legally, your company should only be allowed to access your devices for IT-related purposes, such as ensuring your phone doesn’t pose a security risk. Any access to your personal files or messages is a breach of privacy.

Situations Where Monitoring is Legal

While you have a right to privacy, there are some exceptions in which your employer is justified in monitoring your off-the-clock activities.

Harassment/Discrimination – You’re using social media to harass or discriminate against a coworker, and that coworker complains. Your employee is legally required to investigate the complaint.

Public Safety Roles – Your job is public-facing, such as a police sergeant, immigration agent, or fire department captain. Your expectation of privacy may be affected by off-duty actions, especially if you do something like admit to racial bias during an arrest or rescue, or knowingly violate policies.

Trade Secrets/Non-Compete Issues – If you work in a role where trade secrets need to be protected, and you’ve been sharing those trade secrets with the competition, your company may be allowed to review your activities outside normal work hours to determine whether you violated a non-compete clause that could damage their business.

Is Your Employer Invading Your Off-the-Clock Hours?

Make sure you regularly review your Employee Handbook and any Electronic Communications Policy when you take a job and when you receive an updated copy. These policies cannot override your guaranteed right to privacy, but they do outline the guidelines your company has in place. 

It’s a good policy to turn off work-issued devices when you log off for the day. Switch to your personal laptop and phone to avoid any potential issues with your activities being tracked.

If you are certain your company is illegally monitoring your activities outside of your work hours, gather as much evidence as you can. Screenshots, emails, text messages, and meetings with your management team help build your case. You want to bring anything relevant to an attorney who specializes in employment law.

Shegerian-Conniff specializes in employee monitoring rules and is happy to advise you if your employer is overstepping the bounds of legal monitoring and engaging in illegal spying. Schedule a free consultation today.