An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

 Conflict of interest rules banning nepotism, self-enrichment, or disloyalty. The General Counsel explained that the following types of rules set forth below fall under Category 2 , and require individualized scrutiny of the balance between the rights and the justification. Rules where the Board will exercise individualized scrutiny when challenged include the following;

 Broad conflict-of-interest rules that do not specifically target fraud and self- enrichment  Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information)  Rules regarding disparagement or criticism of the employer (as opposed to disparagement of employees)  Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark)  Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)  Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work)  Rules specifically banning participation in outside organizations.  Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)

The General Counsel asserted that the following rules are considered as Category 3 rules, and the Board will consider them to be generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule:  Rules prohibiting employees from disclosing wages, commissions, or the contents of employment contracts.

 Rules prohibiting employees from disclosing to the media information regarding the employee’s employment, or the working conditions of the employer.  Rules regulating membership in outside organizations that could be interpreted as unions

Employers should seek legal counsel before disciplining employees when their social media communications or other conduct involves protected activity, including discussions about union activity or the terms and conditions of employment, even when the conduct involves the employee making derogatory comments that may violate the employer’s policies.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 412