Principles for Public Safety Employment

instead based on the perceived increased risk of injury and long-term health concerns to the city. A medical condition that poses a danger in the future cannot be the sole basis for denying employment on health and safety grounds, so long as the perceived danger does not presently interfere with the individual's ability to perform the job safely over a reasonable length of time. Lui v. City and County of San Francisco 81 Lui was a police officer who suffered a major heart attack. The Department informed him that there were no administrative positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. Lui sued under the FEHA. The Court of Appeal affirmed the trial court’s finding that strenuous duties, such as making forcible arrests and chasing fleeing subjects were essential functions even though they are not frequently required of officers in administrative positions where the Department has a legitimate need to be able to deploy officers in those positions in the event of emergencies and other mass mobilizations. E. L EGAL R ESTRICTIONS ON A CCESS TO S OCIAL M EDIA I NFORMATION IN THE H IRING P ROCESS Labor Code § 980, effective January 1, 2013, prohibits employers from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing personal social media (such as Facebook accounts), to access personal social media in the presence of the employer, or to divulge any personal social media. This law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions. Applicants or employees could conceivably sue for violations under Labor Code Private Attorneys General Act (Labor Code § 2698). LCW Practice Advisor There is no express public safety exception and LCW advises public agencies to comply with Labor Code § 980. There is a potential argument following Johnson v. Arvin-Edison Water Storage District 82 that the social media statute does not apply to public agencies, because it does not expressly state that it applies to public agencies. The Arvin court held “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.” 83 Arvin-Edison was not considering Labor Code § 980, which was not yet in effect, but instead whether Labor Code §§212 through 214 and 220 through 243 to public agencies. However, the reasoning in Arvin-Edison is questionable because the principal cases the Court relied upon do not stand for the propositions they were cited for. Additionally, prior Courts have applied some of these Labor Code sections to public agencies. For example, Courts have applied section 227.3 regarding vested vacation wages to public agencies. 84 The Arvin-Edison court

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