USA – CALIFORNIA Law and Practice Contributed by: William C. Martucci, Laura M. Booth, Ashley N. Harrison and Carrie A. McAtee, Shook, Hardy & Bacon LLP
3. Data Privacy 3.1 Data Privacy Law and Employment The California Constitution explicitly recognises priva - cy as an inalienable right under Article I, Section 1. The California Supreme Court has construed the California Constitution to provide broader protection than the privacy rights guaranteed by the US Constitution. This right of privacy applies to private employers. There is also a common law right to privacy claim in California. California statutes provide additional protections for employee privacy. For instance, the Confidentiality of Medical Information Act (CMIA) prohibits employers from disclosing employees’ medical information with - out authorisation, even when the employee’s medi - cal condition is relevant to employment decisions, such as requests for paid leave or fitness-for-duty evaluations. Further, the California Consumer Privacy Act (CCPA) requires that a business that collects a consumer’s personal information must disclose to that consumer the categories of personal informa - tion being collected, and the purposes for which the information will be used. Further, many employers are implementing systems in the workplace, such as time- tracking systems, that use biometric data. The Civil Code, Section 1798.100 requires these businesses to take steps to protect unique, permanent biologi - cal identifiers, including imagery of the iris, retina, fin - gerprint, face, hand, palm, vein patterns, and voice recordings. Under the CCPA, consumers may bring a private claim against companies that fail to main - tain reasonable security practices, resulting in a data breach. (Civil Code, Section 1798.100 et seq.) In addition, various federal and state laws may limit an employer from monitoring its employees’ email and Internet use and from accessing their personal files on company computers, including the Federal Wiretap Act, Federal Stored Communications Act, and Cali - fornia Invasion of Privacy Act.
testimony given in compliance with a subpoena or court order. Further, a non-disparagement provision must include, in substantial form, the following lan - guage: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimi - nation or any other conduct that you have reason to believe is unlawful.”
2. Restrictive Covenants 2.1 Non-Competes
Generally, covenants not to compete in the employ - ment context are void under California law, subject to limited exceptions. (California Business and Pro - fessions Code, Section 16600.) Moreover, including or requiring a non-compete clause in an employment contract, or requiring an employee to sign a non-com - pete agreement, constitutes “an act of unfair compe - tition”. Lastly, employers are now required to notify certain employees that their non-compete clauses or agreements are void. Employers who try to enforce a non-compete clause are subject to civil liability. The employee, former employee, or prospective employee against whom the employer attempts to enforce the non-compete may bring a private action for injunctive relief, monetary damages, or both, and may recover attorney fees and costs. (California Business and Pro - fessions Code, Section 16600.5.) The parties cannot avoid this rule by designating another state’s law as governing their employment agreement. 2.2 Non-Solicits Like with non-compete agreements, covenants not to solicit a former employer’s customers are generally void under California law. A former employee has the right to compete with his or her former employer, even for the business of those who had been customers of the former employer, provided such competition is fairly and legally conducted. Therefore, a covenant not to solicit the former employer’s customers is treated as a covenant not to compete and is invalid under the California Business and Professions Code, Sec - tion 16600.
4. Foreign Workers 4.1 Limitations on Foreign Workers
The Immigration Reform and Control Act of 1985 (IRCA) prohibits US employers from hiring workers
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