Privacy Issues in the Community College Workplace

Employers should be aware of Labor Code section 980, effective January 1, 2013, which prohibits employers from requiring or requesting that an employee or applicant:

 Disclose a username or password for the purpose of accessing personal social media;

 Access personal social media in the presence of the employer; or



Divulge any personal social media.

Labor Code section 980 defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” 438 Section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. Thus, to the extent an employer already has a right to request an employee to divulge personal social media as part of an investigation into employee misconduct (e.g., the alleged acts have a nexus to the employee’s employment and the employee’s right to privacy is outweighed by the employer’s interest in preventing and addressing the alleged misconduct), section 980 does not affect the employer’s ability to request this information. Also, an employer is not precluded from asking an employee for a username or password to access employer-issued electronic equipment. Other California statutes prohibit the intentional recording of a confidential communication “by means of any electronic amplifying or recording device” without the consent of all parties. 439 For example, California Penal Code sections 631-633 generally prohibit the eavesdropping and recording or intercepting of certain communications. Certain law enforcement officers are exempt from these provisions. In addition, these exemptions have been extended to POST- certified police chiefs, assistance police chief or police officers of a university or college campus who are acting within the scope of their authority and provided they overhear and record communications, within certain parameters, during a criminal investigation related to sexual assault or another sexual offense.

Telish v. California State Personnel Bd. 440 This case involved a Senior Special Agent in Charge at the Bureau of Narcotics Enforcement’s L.A. Interagency Metropolitan Police Apprehension Task Force (“LA IMPACT”) who threatened to post on-line sexually explicit photographs that he had taken of an employee that he supervised unless she recanted her statements about a consensual sexual relationship that she had with him. When the employee eventually reported the threat and another incident to her boss, the boss reported the incidents to the DOJ and solicited the assistance of the employee in recording the statements of the senior agent about their relationship. The court determined that the recordings did not violate Penal Code section 632, even though they were done without the consent and knowledge of one of the senior agent, because they were done at the direction of law enforcement as part of a criminal investigation. The evidence was then used as part of an administrative proceeding to terminate the senior agent. The

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 138