Privacy Issues in the Community College Workplace

 Make or permit disclosures of personnel information or files absent written employee authorization or court order 287  Make authorized or ordered disclosures that are broader than authorization or order 288

Generally, employers must NOT:

 Waive the privacy rights of employees 289

 Employee’s interest in confidentiality of personnel records v. the employer’s or public interest in disclosing them

Applicable balancing test:

A. I NTERNAL A CCESS TO P ERSONNEL R ECORDS AND F ILES

1. A N E MPLOYEE ’ S R IGHT TO R ESPOND TO I NFORMATION IN H ER OR H IS P ERSONNEL F ILE California Education Code section 87031 requires that a district give its employees notice and the opportunity to review and comment on any derogatory information before placing that information in the employees’ personnel files. In Miller v. Chico Unified School District, Board of Education , 290 the California Supreme Court held that the Board’s failure to place 20 confidential memoranda criticizing Miller’s conduct in Miller’s personnel file, prior to reviewing and considering the memoranda in its decision to reassign Miller, violated Miller’s right to receive notice and the opportunity to comment on the information. Miller asserted that if the Board had given him the opportunity to comment upon the material at the time the Board compiled it, he could have easily contradicted or explained the information. The court rejected the Board’s assertion that the statute did not apply because the Board never placed any of the memoranda in Miller’s personnel file. The Court made clear that the Board could not avoid the statute’s requirements by maintaining a “personnel file” for certain documents relating to an employee, while segregating elsewhere under a different label, materials that might serve as a basis for affecting the status of the employee’s employment. The Court held that unless a school district gives an employee reasonable notice of the derogatory information, so that the employee can gather pertinent information in his/her defense, the school district cannot use the information in reaching any decision affecting the employee’s employment status. In Woodland Joint Unified School District v. Commission of Professional Competence 291 , the California Court of Appeal held that Education Code Section 44031 does not require that a school district warn a teacher about his or her offensive conduct before the school district may dismiss the teacher for "evident unfitness for service.” Although Education Code section 44031 requires that a school district disclose derogatory written material to a teacher, unless the school

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 94