Privacy Issues in the Community College Workplace

b. Investigations into Off-Duty Conduct Unreasonable and highly intrusive investigations into off-duty conduct can violate employees’ rights to privacy. 547 Courts look to various factors to determine whether an investigation is unreasonable. The factors include the following:

 whether the means used in the investigation are abnormal; and

 whether the employer’s purpose in conducting the investigation is proper.

It is not a violation of privacy to follow someone or watch him/her in public because there is no reasonable expectation of privacy while one is in public domain. This includes viewing information posted on website(s) such as Facebook, LinkedIn or Twitter when the postings are unrestricted and accessible or open to the general public. 548 Further, there is no violation of privacy involved when others willingly volunteer information. 549 In a 2013 federal court decision outside of California 550 , the court held that while the Stored Communications Act (“SCA”) applied to Facebook postings meant to be kept private, it does not apply if the disclosure is by the intended user or recipient of the posting. One of an employee’s Facebook friends voluntarily took screen shots of a Facebook posting and gave them to management. Management had not requested copies of the postings or asked the friend to spy on the employee. The employee was disciplined as a result of the postings. The court held that management’s obtainment of the posting (initiated by and voluntarily undertaken by the employee’s friend) did not violate the SCA.

Note: In California, Labor Code section 980 prohibits an employer from requiring or requesting that an applicant or employee disclosure his/her user name or password to the employer for the purpose of accessing the individuals’ personal social media. 551 An exception exists when the employer reasonably believes the social media is relevant to an investigation of employee misconduct or employee violation of applicable laws and regulations and the social media is used solely for the purpose of the investigation or related proceeding. 552

Separate and apart from privacy concerns, however, caution should be exercised in determining the accuracy and reliability of information available from such public sources as the internet. Not everything posted in a blog or social networking site about a person is true; also not everything which appears to be attributable to a person is necessarily from the person. The spread of false information about individuals in the internet is rampant and could serve to undermine the reasonableness of an employer’s reliance on that information as an accurate reflection of the employee’s off-duty conduct.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 174