Privacy Issues in the Workplace

P ERSONNEL R ECORDS AND F ILES

S ECTION 5

 Legal snapshot: Personnel Records and Files

 Constitutional Right of Privacy, Cal. Const. art. I, § 1  The Ralph M. Brown Act (“Brown Act”), Gov. Code §§ 54950 et seq .  California Public Records Act, Gov. Code §§ 6250 et seq  Public Safety Officers’ Procedural Bill of Rights Act, Cal. Gov. Code §§ 3300 et seq.  Firefighters Procedural Bill of Rights Act, Cal. Gov. Code §§ 3250 et seq .

Applicable laws:



Various other California statutes



Common law torts



All current and past employees

Who and what is protected?:



Most personnel records and files

 Make or permit disclosures of personnel information or files absent written employee authorization or court order 302  Make authorized or ordered disclosures that are broader than authorization or order 303

Generally, employers must NOT:

 Waive the privacy rights of employees 304

 Employee’s interest in confidentiality of personnel records v. the employer’s or public interest in disclosing them

Applicable balancing test:

A. I NTERNAL A CCESS TO P ERSONNEL R ECORDS AND F ILES

1. P RIVACY R IGHTS OF T HIRD P ARTIES W HEN E MPLOYEES I NSPECT O WN P ERSONNEL F ILES California Labor Code section 1198.5 gives all employees (except public safety officers whose inspection right derives from the POBR and firefighters whose inspection rights are found in the FOBR) the right to inspect their own personnel files. This right extends to all documents which the employer maintains relating to the employee’s performance or to any grievance concerning the employee.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 95