An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

The Board found that the rules, while not expressly prohibiting employees from engaging in protected activities, could be reasonably construed by employees to prohibit concerted protected activity. However, recently, in the NLRB decision The Boeing Company 1786 , the NLRB held that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. In The Boeing Company , the Board articulated a new balancing standard for determining when a work rule violates the NLRA. The Board reasoned that the no-camera rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight, and outweighed by the substantial employer justifications, which in that case included national security concerns. The Board held that no-camera rules are considered as generally lawful because they either do not restrict rights under the NLRA, or to the extent they do, the justifications for the rule outweigh their tendency to restrict such rights. However, the Board recognized that while the no-camera rule itself was lawful, applications of lawful rules may violate the NLRA if they target employees who have engaged in NLRA-protected conduct. After The Boeing Company decision, the NLRB issued guidance from the NLRB General Counsel stating that in general work rules that prohibit the use of cameras or recording devices are lawful. However, the guidance recognized that rules that ban the possession of cell phones at work may be unlawful. 1787 After The Boeing Company decision, and the subsequent guidance issued by the General Counsel, work rules that prohibit the use of cameras or recordings in the workplace are likely to be upheld if challenged. Rules that prohibit employees from recording students without permission are also likely permissible. I. T RACKING D EVICES Recently, various tracking devices have entered the market: Radio Frequency Identification (RFID), Global Positioning Systems (GPS), and Event Data Recorders (EDR). These devices are available to private individuals for their personal use. For example, cellular telephone companies are now providing GPS as part of their services. However, schools should proceed with caution in using these technologies. Generally, individuals in California are prohibited from using electronic tracking devices to determine the location or movement of a person. 1788 An exception exists that allows registered owners, lessors, or lessees of vehicles to use electronic tracking devices to track their vehicles. 1789 In other words, if the school owns or leases a vehicle, the school may use GPS, or similar electronic tracking devices, to monitor the location or movement of its employees. “Telematics” refers to sending, storing and receiving information through telecommunication devices. 1790 Telematics once meant the merging of computers and telecommunications. 1791 Today, the term “telematics” more commonly refers to automation in automobiles, including integrated hands-free cell phones, GPS navigation, wireless communications, and automated driving assistance systems, including General Motor’s OnStar system. 1792 Vehicle telematics may be used to track and monitor a vehicle or a fleet of vehicles, recover stolen vehicles, provide

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 402