Privacy Issues in the Workplace

Prior to the expiration of Dr. Amador’s contract, the Board voted to extend her contract and to increase her compensation. Concerned about salary increases of administrators, Rocco Versaci, the president of the District’s faculty union, submitted a request under the Public Records Act for a copy of Dr. Amador’s annual performance goals. The District denied the request. The District asserted that the Act did not require disclosure of the goals and, further, disclosure would violate Dr. Amador’s right to privacy. Versaci petitioned for a writ of mandate ordering the District to disclose the goals. The lower court denied Versaci’s petition, and the appellate court affirmed. Government Code section 6254.8 provides that every employment contract between a state or local agency and a public employee is a public record. However, mere mention of an external document (the goals) in the employment contract does not automatically render the external document part of the contract and subject to disclosure. An external document will not be part of the contract unless there is “clear and unequivocal” language in the contract that the parties intended the external document be made part of the contract.

In addition, Dr. Amador’s personal performance goals were part of her annual performance evaluation. Because Dr. Amador had a reasonable expectation of privacy in her performance evaluation, she also had a reasonable expectation of privacy in her personal performance goals. c. Employee Salaries Salaries of public employees by classification or without identifiable names have long been open for public inspection. In recent years, however, there had been a significant amount of litigation regarding the disclosures of specific salaries along with employee names. The controversy now appears to have been laid to rest, at least in California by the California Supreme Court’s decision in International Federation of Professional and Technical Engineers v. Superior Court. In this case the Court held that information regarding a specific public employee’s salary is discoverable under the Public Records Act. As the Court explained “in light of the strong public policy supporting transparency in government, an individual’s expectation of privacy in a salary earned in public employment is significantly less than the privacy expectation regarding income earned in the private sector.” 352 Finally, note that personal information such as date of birth, address, phone number, and social security number, which may also be contained in a salary card are not a matter of public record. Therefore, employers should be advised that where non-exempt materials are not inextricably intertwined with exempt material, employers must make reasonable efforts to segregate those materials. This segregation will serve the objective of the Public Records Act by making those public records available for public inspection. d. Complaints against Employees Government Code section 6254 of the Public Records Act further provides that in making a report available to the public of certain crimes, including rape, the address of the victim shall not be disclosed and the name of the victim may be withheld at the victim’s request or at the request

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 105