An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

This federal authority would likely provide guidance to courts in ascertaining whether a job nexus exits. Nexus is determined not only by the type of off-duty conduct but by reference to the type of employer and duties and responsibilities of the particular position in question. Courts have also found a nexus where an employee’s off-duty conduct creates a conflict of interest or where an employee’s illegal off-duty conduct undermines an employee’s or employer’s credibility with the public. b. Investigations Into Off-Duty Conduct Unreasonable and highly intrusive investigations into off-duty conduct can also violate employees’ rights to privacy. 1809 Courts look to various factors to determine whether an investigation is unreasonable. The factors include the following:  Whether the means used in the investigation are abnormal; and  Whether the employer’s purpose in conducting the investigation is proper. It is not a violation of privacy to follow someone or watch him/her in public because there is no reasonable expectation of privacy while one is in the public domain. This includes viewing information posted on website(s) such as Facebook, LinkedIn or Twitter when the postings are unrestricted and accessible or open to the general public. 1810 Further, there is no violation of privacy involved when others willingly volunteer information. 1811 Separate and apart from privacy concerns, however, caution should be exercised in determining the accuracy and reliability of information available from such public sources as the internet. Not everything posted in a blog or social networking site about a person is true; also not everything which appears to be attributable to a person is necessarily from the person. The spread of false information about individuals in the internet is rampant and could serve to undermine the reasonableness of an employer’s reliance on that information as an accurate reflection of the employee’s off-duty conduct. An employer may legitimately investigate an employee’s off-duty conduct which is believed to be in violation of legal statutes or the employer’s rules or regulations. It would also be reasonable for an employer to investigate an employee’s off-duty conduct to determine matters which have been placed at issue between the employer and employee in a legal proceeding. This could include such things as level and extent of disability, or need for or use of medical leave. c. Discussions About Union Activity Or About Terms And Conditions Of Employment The National Labor Relations Board (NLRB) is the federal agency overseeing private sector unions and unionization efforts. Section 7 of the National Labor Relations Act (NLRA) gives employees the right to “engage in … concerted activities for the purpose of mutual aid or protection.” In other words, this provision protects employee rights to act together to improve their working terms and conditions, including wages and benefits. The NLRA applies to both unionized and non-unionized employees and gives them the right to discuss the terms and conditions of their employment with co-workers and others. Several recent National Labor Relations Board (NLRB) complaints address whether employees may be disciplined for information that the employees post on their Facebook pages when the information relates to the

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