Privacy Issues in the Workplace

employee filed a wrongful termination action against the employer. During the litigation, the employee argued that the employer did not have the right to inspect an employer-owned computer the employee had primarily used at home for personal purposes. The employee reasoned that the computer contained significant personal information, including tax information and family correspondence that was subject to his right of privacy under California’s constitution. The Court of Appeal ruled in favor of the employer holding that the employee did not have a reasonable expectation of privacy because he consented to the employer’s monitoring of his computer activities by signing the employer’s computer use policy. 465

Employers should be aware of Labor Code section 980, effective January 1, 2013, which prohibits employers from requiring or requesting that an employee or applicant:

 Disclose a username or password for the purpose of accessing personal social media;

 Access personal social media in the presence of the employer; or



Divulge any personal social media.

Labor Code section 980 defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” 466 Section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. Thus, to the extent an employer already has a right to request an employee to divulge personal social media as part of an investigation into employee misconduct (e.g., the alleged acts have a nexus to the employee’s employment and the employee’s right to privacy is outweighed by the employer’s interest in preventing and addressing the alleged misconduct), section 980 does not affect the employer’s ability to request this information. Also, an employer is not precluded from asking an employee for a username or password to access employer-issued electronic equipment. Other California statutes prohibit the intentional recording of a confidential communication “by means of any electronic amplifying or recording device” without the consent of all parties. 467 For example, California Penal Code sections 631-633 generally prohibit the eavesdropping and recording or intercepting of certain communications. Certain law enforcement officers are exempt from these provisions. In addition, these exemptions have been extended to POST- certified police chiefs, assistance police chief or police officers of a university or college campus who are acting within the scope of their authority and provided they overhear and record communications, within certain parameters, during a criminal investigation related to sexual assault or another sexual offense.

Telish v. California State Personnel Bd. 468 This case involved a Senior Special Agent in Charge at the Bureau of Narcotics Enforcement’s L.A. Interagency Metropolitan Police Apprehension Task Force

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