Privacy Issues in the Workplace

Disciplinary actions by employers that have a “significant effect on the wages, hours and other terms of the conditions of employment” are subject to the mandatory bargaining requirements of the Meyers-Milias-Brown Act. 504 Therefore, employee discipline would likely be subject to mandatory bargaining to the extent it results from information obtained via tracking technology on agency-owned or leased vehicles, including discipline for misuse of the equipment, inappropriate use of time, and speeding. 505

While GPS tracking is now widely available through cellular telephones, employers should not use it. The Penal Code prohibits such tracking,

“No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.” 506

In addition to a violation of the Penal Code, employee tracking with the use of cellular telephones or similar devices may raise employee privacy claims under the California and United States Constitutions.

J. B IOMETRICS “Biometrics” is an automated method used to recognize an employee’s unique physiological or behavioral characteristics. 507 Biometrics is a general term that is used to describe a process or a characteristic. 508 Biometrics is often used to improve security and productivity in the workplace. “Physiological biometrics” include fingerprint scanners or sensors, and iris recognition technology. 509 “Behavioral biometrics” include voice, keystroke, gait and signature recognition capabilities. 510 Biometrics is used to track productivity and to grant employees access to secured workspaces or locations. information poses both privacy and security risks for employers. Generally, this data is electronically stored. Employers must weigh the risk of privacy violations that will result if an employee’s personal data is lost, stolen or misplaced against the convenience that using biometrics may afford to employers. For example, because fingerprints are unique to each person, the risk of identity theft is great if a hacker were to obtain fingerprint information along with other employee data. Because of the risks involved with the use of this technology, employers should use biometrics only when they have legitimate business needs that justify its use. For example, employers may use biometrics to restrict access to highly secured buildings, such as prisons. However, we advise that all employers seek legal counsel and technical advice before implementing this type of technology. Biometrics poses privacy considerations for employers because it requires that employers collect employee physiological or behavioral data. The collection and storage of this highly confidential

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