An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

subordinate, he could not establish that he had a reasonable expectation of privacy in such a relationship. 1806 The Barbee court noted that employers have legitimate interests in “avoiding conflicts of interest between work-related and family-related obligations; reducing favoritism or even the appearance of favoritism; [and] preventing family conflicts from affecting the workplace.” The court further noted that managerial-subordinate relationships present issues of potential sexual harassment. Crosier v. United Parcel Service, Inc. The employer, UPS, had an unwritten rule prohibiting social relationships between management and non-management employees. 1807 The plaintiff, a management employee, claimed wrongful termination on the grounds that his dismissal for violation of this non-fraternization rule was not for good cause. In determining whether his dismissal based on this violation constituted good cause, the court reasoned that it must balance the employer’s interest in operating his business efficiently and profitably with the interest of the employee in maintaining his employment. The court found that the employer was legitimately concerned with appearances of favoritism, possible claims of sexual harassment and employee dissension created by romantic relationships between management and non-management employees.

B. O FF -D UTY C ONDUCT

1. A PPLICABLE L EGAL S TANDARDS a. Bases For Regulating Off-Duty Conduct – “Nexus To Employment” The California Constitution protects the privacy of employees in their off-duty conduct. Schools must not unreasonably regulate/restrict that conduct, and must not base employment decisions on off-duty conduct, that does not have a relationship to the employment. The Ninth Circuit Court of Appeals, in Thorne v. City of El Segundo , 1808 stated the rule as follows:

“In the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant’s on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on…private non-job-related considerations…in rejecting [or making any employment decision regarding] an applicant for employment [or employee] violates the [individual’s] protected constitutional interests.”

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 407