California Further Restricts Monitoring in Workplace Bathrooms

The Details

Background

California law already restricts recording in employee restrooms. This new law expands privacy protections beyond traditional audio and video recording by covering a broader range of workplace surveillance technologies.

What’s Changing on January 1, 2027?
 

Unless directed by a court order, an employer is prohibited from using a workplace surveillance tool to monitor or surveil employees in workplace bathrooms.

A “workplace surveillance tool” is defined as a system, application, instrument, or device that collects or facilitates the collection of employee data, activities, communications, actions, biometrics, or behaviors by means other than direct observation by a person, including, but not limited to video or audio surveillance, continuous incremental time-tracking tools, geolocation, electromagnetic tracking, photoelectronic tracking, a photo-optical system, or other means.

Excluded from the definition are smoke or carbon monoxide detectors or weapon detection systems that automatically screen a person’s body.

Employees have the right to leave behind workplace surveillance tools that are on their person or in their possession when entering a workplace bathroom, unless they are required to remain available during meal or rest periods under federal or state law.

Exceptions

An employer may check workplace surveillance tools for the one-time entry and exit of workplace bathrooms.

An employer isn't in violation of the law in either of the following circumstances:

• An employee voluntarily chooses to bring a workplace surveillance tool into a bathroom in the workplace.
   
• An employee brings a workplace surveillance tool, including a badge or personal alarm system, into a bathroom in the workplace because the employer has a policy that requires that workplace surveillance tool to be in the employee’s possession while on work premises for identification or safety purposes or if the tool is required to access a locked or secured bathroom, if the workplace surveillance tool meets both of the following conditions:
   
  • Doesn’t detect or record audio or video.
  • Doesn’t have physically embedded or attached artificial intelligence.

The law also doesn’t apply to the use of a workplace surveillance tool by an employer relating to either of the following:

• The development of aircraft for use in the national airspace.
• The development of products or services for national security, military, space, or defense purposes.

This exemption applies only to the operations covered by a federal statute, federal regulation, or binding federal contract where the use of a workplace surveillance tool is reasonably necessary to comply with the federal statute, the federal regulation, or the binding federal contract.

Next Steps

Before January 1, 2027, California employers should:
 

• Review any workplace monitoring, surveillance, security, time-tracking, geolocation, badge-access, or wearable technology programs to determine whether they could collect data from employees while they are in workplace bathrooms.
   
• Confirm that cameras, audio-recording devices, and other surveillance technologies aren't used inside workplace bathrooms.
   
• Evaluate whether employee-issued devices, wearables, mobile applications, or tracking tools collect information while employees are in bathrooms and determine whether changes are needed to comply with the law.
   
• Update workplace surveillance, privacy, technology-use, and security policies, as appropriate, to address the new restrictions.
   
• Train supervisors, IT personnel, and security staff on the law's limitations regarding workplace monitoring in bathrooms.
   
• Review badge-access and personal safety devices that employees may be required to carry to ensure they don’t record audio or video and otherwise meet the law's requirements.
   
• Consult legal counsel if your business operates in a regulated industry or uses specialized surveillance technologies that may be subject to an exception under the law.