Privacy Issues in the Community College Workplace

Constitution. Such termination was said to violate the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutional permissible, narrowly tailored regulation.” 495 On May 21, 2019, the Ninth Circuit filed a new opinion and a dissenting opinion, and the opinion and concurring opinion in Perez filed on February 9, 2018 were withdrawn. The Ninth Circuit, in an opinion authored by Judge Sandra Ikuta and Judge A. Wallace Tashima, held that a police department is not “constitutionally prohibited from considering an officer’s off-duty sexual relationship in making a decision to terminate her, when there is specific evidence that the officer engaged in on-the-job conduct in connection with that relationship that violated departmental policy.” (2019 WL 2182488 at *8) NOTE : The majority opinion in Perez in 2018 was authored by Judge Reinhardt before his death and accordingly a different judge (Ikuta) was substituted in for the opinion issued in 2019. Montana District Judge Donald Molloy, part of the original majority opinion in 2018 wrote a strongly worded dissenting opinion in 2019. Whether either side seeks review by the U.S. Supreme Court remains to be seen. We are following this case and will keep you apprised of its status.

B. O FF -D UTY C ONDUCT

1. A PPLICABLE L EGAL S TANDARDS

a. Bases for Regulating Off-Duty Conduct – “Nexus to Employment” The United States and California Constitutions protect the privacy of employees in their off-duty conduct. Employers must not unreasonably regulate/restrict that conduct, and must not base employment decisions on off-duty conduct that does not have a relationship to the employment. The Ninth Circuit Court of Appeals, in Thorne v. City of El Segundo , 496 stated the rule as follows:

“In the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant’s on- the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on…private non-job- related considerations…in rejecting [or making any employment decision regarding] an applicant for employment [or employee] violates the [individual’s] protected constitutional interests.”

The necessary relationship is usually referred to as “job nexus.” Nexus is determined not only by the type of off-duty conduct but by reference to the type of employer and duties and responsibilities of the particular position in question. Courts have also found a nexus where an

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