Disciplinary and Harassment Investigations

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 , 112 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. 113 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 agency. 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 agency from disclosing any information to individuals who are not specifically authorized by law to receive the information.

2. E MPLOYMENT D ECISIONS B ASED UPON C RIMINAL R ECORDS Generally, an employer cannot base employment decisions upon off-duty criminal convictions. Penal Code § 11105, governing criminal record data, allows the Attorney General to furnish summary criminal history information to certain entities including “any city or county or official thereof when access is needed in order to assist such agency, officer or official in fulfilling employment certification, or licensing duties, and when such access is specifically authorized by the city council ordinance, or regulation that expressly refers to specific criminal conduct

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