I spoke at the Western Foodservice & Hospitality Expo last week regarding marijuana in the workplace and employer’s right to test for and prohibit the use of marijuana. While employers generally still have the right to test employees for and prohibit marijuana in the workplace, employee’s still have privacy interests that employers need to aware of. For example, Article I, Section I of the California Constitution guarantees citizens a right of privacy:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This right to privacy carries over to the workplace, but is even more protected when the employee is conducting personal activities during non-working hours. On top of this general right to privacy, there are statutory protections provided to employees as well. Below is a list of items concerning employee conduct that cannot be regulated by an employer under California law:
- Employers cannot prohibit employees from discussing or disclosing their wages, or for refusing to agree not to disclose their wages. Labor Code Sections 232(a) and (b).
- Employers cannot require that an employee refrain from disclosing information about the employer’s working conditions, or require an employee to sign an agreement that restricts the employee from discussing their working conditions. Labor Code Section 232.5.
- Employers may not refuse to hire, or demote, suspend, or discharge and employee for engaging in lawful conduct occurring during nonworking hours away from the employer’s premises. Labor Code Section 96(k).
- Employers cannot adopt any rule preventing an employee from engaging in political activity of the employee’s choice. Labor Code Sections 1101 and 1102.
- Employers cannot prevent employees from disclosing information to a government or law enforcement agency when the employee believes the information involves a violation of a state or federal statute or regulation, which would include laws enacted for the protection of corporate shareholders, investors, employees, and the general public. Labor Code Section 1102.5.