Privacy Issues in the Community College Workplace

the ruling in Moser is now the law in California and courts will rely on it when issuing rulings related to public employees’ First Amendment rights. With the rise in social media usage, public entities will increasingly be challenged with how to handle controversial online posts by their employees. They should consider seeking legal advice when deciding whether to impose discipline.

Labor Code section 980 prohibits employers from requiring or requesting that an employee or applicant:

 Disclose a username or password for the purpose of accessing personal social media;

 Access personal social media in the presence of the employer; or



Divulge any personal social media.

Labor Code section 980 defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” 444 Section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. Thus, to the extent an employer already has a right to request an employee to divulge personal social media as part of an investigation into employee misconduct (e.g., the alleged acts have a nexus to the employee’s employment and the employee’s right to privacy is outweighed by the employer’s interest in preventing and addressing the alleged misconduct), section 980 does not affect the employer’s ability to request this information. Also, an employer is not precluded from asking an employee for a username or password to access employer-issued electronic equipment. Other California statutes prohibit the intentional recording of a confidential communication “by means of any electronic amplifying or recording device” without the consent of all parties. 445 For example, California Penal Code sections 631-633 generally prohibit the eavesdropping and recording or intercepting of certain communications. Certain law enforcement officers are exempt from these provisions. In addition, these exemptions have been extended to POST- certified police chiefs, assistance police chief or police officers of a university or college campus who are acting within the scope of their authority and provided they overhear and record communications, within certain parameters, during a criminal investigation related to sexual assault or another sexual offense.

Telish v. California State Personnel Bd. 446 This case involved a Senior Special Agent in Charge at the Bureau of Narcotics Enforcement’s L.A. Interagency Metropolitan Police Apprehension Task Force (“LA IMPACT”) who threatened to post on-line sexually explicit photographs that he had taken of an employee that he supervised unless she recanted her statements about a consensual sexual relationship that she had with him. When the employee eventually reported the threat and another incident to her boss, the

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