Privacy Issues in the Workplace

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. 594

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, and 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. An employer may legitimately investigate an employee’s off-duty conduct that 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 that 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.” 595 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. 596 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. 597 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. 598

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

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 170