Privacy Issues in the Community College Workplace

A public entity is required to disclose the work locations of various members even if the work location reveals that the member was under disciplinary and/or criminal investigation. In the PERB Decision Los Angeles Unified School District 347 , the district temporarily assigned employees under disciplinary and/or criminal investigation to one of its Educational Service Centers (“ESCs”). The union demanded to bargain the working conditions of the ESCs and as part of the bargaining over this, asked the district to identify all unit members who were temporarily assigned to either an ESC or their home while under investigation, and the specific ESC to which they were assigned. The district provided the information but only after it gave the employees the opportunity to opt-out of the disclosure. Fifteenof the 276 employees opted - out of the disclosure. The union filed an unfair practice charge for not receiving all of the information requested. The ALJ decided that the unit members did not have a substantial privacy interest against the union’s right to the information, and also that the district did not bargain the opt-out procedure in good faith before it implemented it. PERB affirmed, determining that the privacy interest of the members was minimal against the union’s need for the information, and that the request was tailored to accommodate any privacy concerns (not asking for personnel files or investigation reports and offered to keep confidential the contact information). An employer has no affirmative obligation to provide a union information about a pending disciplinary action about a represented employee without a request and without the employee’s consent. 348 4. W ORKSITE I NSPECTIONS OF P ERSONNEL F ILES BY I MMIGRATION E NFORCEMENT A GENTS Effective January 1, 2018, the California Immigrant Worker Protection Act (AB 450) provides that, “except as otherwise required by federal law,” an employer, or a person acting on behalf of the employer, shall not provide “voluntary consent” for an immigrant enforcement agent to:

 Enter non-public areas of the worksite, unless the immigration enforcement agent provides a judicial warrant 349  Access, review, or obtain employee records without a subpoena or court order. 350

An employer will be subject to penalties for violating each of these provisions. The penalties are civil penalty of two thousand dollars up to five thousand dollars for a first violation, and five thousand dollars up to ten thousand dollars for each subsequent violation. 351 A violation is “each incident” where it is found that a violation occurred “without reference to the number of employees, the number of immigration enforcement agents involved in the incident, or the number of locations affected in a day.” 352 There are exceptions to each of these prohibitions. With respect to the prohibition against voluntary consent to enter non-public areas of the worksite, the provision on penalties does not apply if a court determines that the immigrant enforcement official entered the non-public area without consent of the employer or the other person in charge of the workplace. 353 In addition,

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 108