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Employee Privacy

The increasingly digital nature of modern society has positioned the right to privacy as our most collectively treasured and vital rights. Privacy is a particularly critical aspect of the employer-employee relationship.  California employees value their confidential information and freedom from defamation and privacy invasion.  The law values privacy, too.  To that end, employers who violate their employees’ privacy rights reveal themselves to legal exposure to civil liability.

Astanehe Law assists aggrieved employees who have suffered an invasion of privacy, defamation, appropriation, false light violations, and other similar privacy violations by employers or former employers.  Don’t let your employer or former employer destroy your privacy right, contact Astanehe Law for your free consultation.

Defamation

The law recognizes an employee’s protected interest in reputation by imposing employer-liability for defamation.  Defamation consists of the publication of false statements that create ridicule, hatred, contempt, or criticism.  

California recognizes two types of defamation, libel or slander. Libel involves written publications, while slander requires speech.

To establish defamation, an employee must prove that the employer:

  1. Made a false and defamatory statement about the employee;
  2. The statement was made to another party;
  3. The employer made the statement negligently, recklessly, or intentionally; and,
  4. The employee’s reputation was damaged.  

To prevail on a claim, an employee typically need only prove that the employer negligently made the defamatory statement.

Former employers and managers risk liability where a defamatory professional reference reduces an applicant’s employment prospects or reputation. Defamatory references include writing misleading statements in a reference letter about a person’s qualifications or performance and disclosing that an employee was terminated “for cause.”

Time Limit for Filing a Defamation Claim

Employees have one year from the date of discovery of the last defamatory statement to file a defamation claim.  California Code of Civil Procedure § 340(c); Manguso v. Oceanside Unified School Dist., 153 Cal. App. 3d 574, 578-579 (1984).  Each employer republication of a defamatory statement gives rise to a new cause of action for statute of limitation purposes.  Shively v. Bozanich, 31 Cal. 4th 1230, 1245 (2003).

Damages for Employer Defamation

In California, furnishing false and defamatory statements about a former employer carries criminal liability.  California Labor Code § 1050.  Further, aggrieved employees can obtain triple damages.   California Labor Code § 1054.

If your former employer or manager made defamatory statements or writings about you, contact Astanehe Law for your free legal consultation.  Astanehe Law may be able to provide contingency representation, and you will not pay upfront legal fees.  Don’t let your former employer continue bullying you, take immediate legal action!

Employer Privacy Invasions

Although employees relinquish some of their privacy rights to employers during the application process and employment, employees still retain numerous privacy rights.  Employee privacy protections seek to safeguard employee speech, beliefs, association, lifestyle, and personal information.  Where an employer’s action violates these safeguards, the employee may enforce their privacy right in a civil suit based, often based on a Tort theory.

Employees commonly assert four types of privacy Torts: (i) Intrusion upon seclusion; (ii) Appropriation of name and likeness; (iii) Publicity given to private life; and, (iv) False light publicity.

  • False Light Publication
  • Appropriation
  • Publicity of Private Life
  • Intrusion Upon Seclusion

Publicity Placing an Employee in a False Light

False light is a species of invasion of privacy based on publicity that places an employee before the public falsely. An employer violates this tort when:

  1. The employer publishes information to another;
  2. That falsely represents the employee;
  3. The employer knew the publication would create a false impression or was negligent in deterring the untruth created by the publication;
  4. The information is offensive to a reasonable person; and,
  5. The employee sustained harm.


An employee that suffers a false light privacy violation can recover emotional distress damages and damages for the loss or harm to their reputation in the business community.

Appropriation of Name and Likeness

Appropriation of name and likeness occurs when an employer’s unauthorized beneficial use of an employee’s name, likeness, or identity leads to harm. To successfully establish appropriation, an employee must prove:

  1. The employer’s use of the employee’s identity;
  2. The appropriation of the employee’s name or likeness to the employer’s advantage;
  3. Lack of consent; and,
  4. Resulting injury. Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799, 807 (1990).

An employer who uses a former employee’s picture online for commercial purposes may violate this tort. However, the employer insulates itself from liability where the employee consents to use their name or likeness in writing. California Civil Code § 3344(a).

An aggrieved employee can recover emotional distress damages, and damages for the loss or harm of their reputation. Additionally, the employee may be able to recover for the loss of commercial value to their name or likeness.

Publicity Given to Private Life

An employer’s disclosing of employment information that is highly offensive and is not of public concern establishes liability under publicity given to private life, which is also commonly referred to as public disclosure of private facts. The employer must publish the information publicly, but the information need not be accurate.

The employee must prove:

  1. Public disclosure;
  2. Of a private fact;
  3. That is offensive and objectionable to the reasonable person; and,
  4. The private fact is not the public’s concern. Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998).

California Constitution

Under the California Constitution, the right to privacy is an inalienable right guaranteed to Californians.  California Constitution, Article 1, § 1.  Since its passage by voters in 1972, California citizens have had enforceable privacy rights against private entities, including private sector employers.  Bd. Of Trs. Of Leland Stanford Jr. Univ. v. Super. Ct. of Santa Clara, 119 Cal. App. 3d 516 (Cal. Ct. App. 1981).  However, since the California Constitution does not define, explain, or specify the scope of the right, aggrieved employees often need the assistance of counsel to bring a claim for invasion of privacy under the California Constitution. Contact Astanehe Law for trusted assistance today! 

Unlike the common-law privacy torts, an employer violates the California Constitution’s privacy right when sensitive personal information is misused, even if disclosure is limited.  To establish liability under the California Constitution, an employee must prove:

  1. A legally protected privacy interest exists;
  2. A reasonable expectation of privacy exists; and,
  3. The employer’s conduct constituted a serious privacy invasion. Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994).

Damages for Employer’s Privacy Violations

As a general rule, compensatory damage awards are intended to make the victim whole.  Employees who suffer privacy violations are entitled to recover the resulting compensatory damages for the harm resulting from privacy invasions, including:

  • Emotional distress damages;
  • Damages for loss of reputation or standing in the community;
  • Damages for physical injury or financial loss; and,
  • Loss of consortium.

An employee may be able to recover punitive damages for an invasion of privacy where the employer acted with malice, wantonness, or willfulness.  California Civil Code §§ 3294, 3344; Cyrus v. Haveson, 65 Cal. App. 3d 306, 316-317 (1976); Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1055 (2009).

The right to be left alone is one of the most treasured rights provided for in the California Constitution.  If your employer or former employer has invaded your privacy, contact Astanehe Law today for your free consultation.

Astanehe Law Knows Privacy Law

Michael M. Astanehe possesses a zeal for helping employees bring claims against their employers.  Mr. Astanehe is an aggressive litigator with several years of civil litigation experience.  He is willing to take your case to trial, if necessary.  This ferocity ensures that Astanehe Law will obtain the highest recovery possible for each client.

Litigation is stressful.  To that end, Mr. Astanehe provides each client with comprehensive legal service so that they remain fully-informed and comfortable throughout the process.  Astanehe Law strives to make litigation as stress-free as possible.

With Astanehe Law on your side, you are poised to obtain the maximum recovery possible.  Call today for your free consultation!

Astanehe Law Knows Your Rights

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