Privacy Issues in the Community College Workplace

An employer may legitimately investigate an employee’s off-duty conduct which is believed to be in violation of legal statutes or the employer’s rules or regulations. It would also be reasonable for an employer to investigate an employee’s off-duty conduct to determine matters which have been placed at issue between the employer and employee in a legal proceeding. This could include such things as level and extent of disability, or need for or use of medical leave. c. Lost Wages Claims Arising from Discipline for Off-Duty Conduct Employees may file a claim with the Labor Commissioner under Labor Code section 96 for lost wages “as the result of demotion, suspension or discharge from employment for lawful conduct occurring during non-working hours away from the employer’s premises.” 553 All public employers should assume that Labor Code section 96, subdivision (k), applies to them until or unless a court rules definitively otherwise. Section 96 does not set forth an independent public policy that provides employees with substantive rights. 554 The statute simply outlines types of claims over which the Labor Commissioner shall exercise jurisdiction; therefore the statute does not support a claim of wrongful termination in violation of public policy. 555 In 2000, the California Attorney General issued an opinion that Section 96 does not abrogate existing law that permits law enforcement agencies to discipline peace officers for lawful off-duty conduct occurring away from the workplace which conflicts with their duties as peace officers. 556

A myriad of federal and state statutes protect civil rights. Accordingly, the job-nexus analysis outlined above still applies when deciding whether to discipline an employee for off-duty conduct.

2. O UTSIDE E MPLOYMENT Employees generally do not have the right to engage in outside employment which adversely impacts upon the employees’ regular position. Government Code section 1126 sets forth the necessary nexus for limiting employees’ outside employment. Section 1126 provides as follows:

“[A] local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties…or with the duties, functions, or responsibilities of his or her appointing power or the agency.” “Each appointing power may determine…those outside activities which…are inconsistent with, incompatible to, or in conflict with their duties as local agency officers or employees.”

Incompatibility may be found in the following circumstances, but is not limited to these circumstances:

 employee uses local agency time, facilities, property, or influence for private gain;

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 175