Privacy Issues in the Workplace

According to the court, a reasonable accommodation would allow wearing of a beard and required frequent tests of a firefighter’s safety mask. 614

Education Code section 35183 provides that a school district governing board may adopt reasonable dress code regulations prohibiting students from wearing gang-related apparel if deemed necessary for health and safety purposes.

5. R ESIDENCY R ESTRICTIONS An employer has limited authority to regulate/restrict where its employees reside pursuant to Article XI, Section 10, Subdivision (b) of the California Constitution which provides that while a local agency may not require that employees be residents of the city or county, it may require employees to reside within a reasonable distance of their place of employment.

International Ass’n of Fire Fighters Local 55 v. City of San Leandro 615 An appellate court held that a city requirement that fire department personnel reside within 40 miles from a fire station was not so unreasonable as to be constitutionally defective, even though it did not provide for consideration of the firefighters’ individual travel time from their residences.

6. L ANGUAGE

Under FEHA, Government Code section 12951, employers are barred from adopting or enforcing a policy that prohibits the use of any language in the workplace unless: (i) the policy is justified by business necessity; and (ii) the employer provides the employees with adequate notice of the policy and the consequences of violating the policy. Policies prohibiting the use of any language are reviewed under a stringent standard. Section 12951(b) requires that the employer show (i) “an overriding legitimate business purpose” that makes the language restriction “necessary to the safe and efficient operation of the business,” (ii) that the restriction fulfills the business purpose, and (iii) that there is “no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.” Importantly, employers are subject to Section 12951 even if the policy is verbal, and not reduced to writing. Employers cannot verbally threaten employees with discipline, or any other adverse action, for speaking in languages other than English. Any policy, whether verbal or written, will subject the employer to liability under Section 12951. Section 12951 became effective in 2002. Thus, employers should not rely on case law decided before Section 12951 was enacted in developing language restriction policies. Cases that were decided prior to its enactment would likely have a different outcome in light of Section 12951.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 174