Finding the Facts - Disciplinary and Harassment Investigation

TGB Insurance Services v. Superior Court 134 An employer provided an employee with both a work and home computer. The employee signed a form acknowledging that both computers could be monitored by the employer, and that he would use the computers for business purposes only. After the employee was terminated for repeatedly accessing pornographic sites on his work computer, the employee filed a wrongful termination lawsuit against the employer. The employer then demanded production of the home computer. The court held that, based on the employee acknowledging that his home computer could be monitored, he had no reasonable expectation of privacy when he used the home computer for personal matters.

F. P OLYGRAPHS In Long Beach City Employees Association v. City of Long Beach , 135 the California Supreme Court held that public employees cannot be compelled to submit to a polygraph examination. Best practices would be to provide all employees the benefits contained in Government Section Code § 3307 (applicable to peace officers) that:  No disciplinary action or other recrimination be taken against an employee refusing to submit to a polygraph;  No comments be entered in the investigator’s notes or elsewhere regarding such refusal; G. A CCESS TO AND U SE OF C RIMINAL R ECORDS Access to and use of criminal records information raises privacy concerns. This is especially true when the criminal records involve an arrest not resulting in a conviction, since an arrest is not evidence of guilt. Constitutional privacy protections apply as do many statutes that have been enacted to guarantee privacy and fairness. 1. A RREST R ECORDS An employer cannot solely use information concerning an arrest or detention not resulting in conviction in making any employment decision. 136 A conviction includes any plea bargain, verdict, or finding of guilt regardless of whether a sentence was imposed. Labor Code § 432.7 contains a partial exception for applicants for peace officer positions or any other position in a criminal justice district. This exception applies to all positions within a local police department, including non-sworn.  Evidence of refusal is not admissible at any administrative or judicial proceeding.

Labor Code § 432.7 also forbids any law enforcement district from disclosing any information to individuals who are not specifically authorized by law to receive the information.

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