Privacy Issues in the Community College Workplace

reassign Miller, violated Miller’s right to receive notice and the opportunity to comment on the information. Miller asserted that if the Board had given him the opportunity to comment upon the material at the time the Board compiled it, he could have easily contradicted or explained the information. The court rejected the Board’s assertion that the statute did not apply because the Board never placed any of the memoranda in Miller’s personnel file. The Court made clear that the Board could not avoid the statute’s requirements by maintaining a “personnel file” for certain documents relating to an employee, while segregating elsewhere under a different label, materials that might serve as a basis for affecting the status of the employee’s employment. The Court held that unless a school district gives an employee reasonable notice of the derogatory information, so that the employee can gather pertinent information in his/her defense, the school district cannot use the information in reaching any decision affecting the employee’s employment status. In Woodland Joint Unified School District v. Commission of Professional Competence 289 , the California Court of Appeal held that Education Code Section 44031 does not require that a school district warn a teacher about his or her offensive conduct before the school district may dismiss the teacher for "evident unfitness for service.” Although Education Code section 44031 requires that a school district disclose derogatory written material to a teacher, unless the school district reduces the conduct to writing, the Education Code does not require that the school district warn the teacher about the offensive conduct. 2. P RIVACY R IGHTS OF T HIRD P ARTIES W HEN E MPLOYEES I NSPECT O WN P ERSONNEL F ILES California Labor Code section 1198.5 gives all employees (except public safety officers whose inspection right derives from the POBR and firefighters whose inspection rights are found in the Firefighters Procedural Bill of Rights Act (“FBOR”)) the right to inspect their own personnel files. Education Code section 87031 expressly applies the right of inspection under California Labor Code section 1198.5 to employees of community college districts. This right extends to all documents which the employer maintains relating to the employee’s performance or to any grievance concerning the employee. Under Government Code section 3305, public safety officers are entitled to inspect any adverse comment before it is entered into their personnel file. The term “adverse comment” includes citizen complaints. 290

 Investigation of a possible criminal offense

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Letters of reference

 Ratings, reports, or records obtained prior to the employee's employment

 Ratings, reports or records prepared by an identifiable examination committee  Ratings, reports or records obtained in connection with a promotional examination

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 93