Privacy Issues in the Workplace

 Written notice of the obligations of the employer and the affected employee arising from the results of the inspection, within 72 hours of receiving the results. 395 The notice should relate to the affected employee only. It should be delivered by hand at the workplace if possible, and if not possible, by mail and email, if the email address of the employee is known. It also should be delivered to the employee’s representative. 396 The notice should contain the following information:  A description of any and all deficiencies or other items identified in the written immigration results notice related to the affected employee  The time period for correcting any potential deficiencies identified by the immigration agency  The time and date of any meeting with the employer to correct any identified deficiencies  Notice that the employee has the right to representation during any meeting scheduled with the employer. 397

An employer who fails to provide the above notices about the results of the inspection and what needs to be done to correct the deficiencies is subject to a civil penalty of two thousand dollars to up to five thousand dollars for the first violation, and five thousand dollars up to ten thousand dollars for each subsequent violation. 398 A penalty is not required to be imposed on an employer or person who fails to provide the notice to an employee at the express and specific direction or request of the federal government. 399

C. A CCESS TO P ERSONNEL R ECORDS AND F ILES IN L ITIGATION

1. O VERVIEW

Requests for discovery of personnel files that occur during litigation raise issues of confidentiality and the employee’s constitutionally protected right to privacy due to the personal nature of the information contained in personnel files. Therefore, in determining whether to allow disclosure of requested personnel files, “the party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [citations omitted.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” 400 Thus, disclosure of an employee’s personnel file depends first on whether the material sought is relevant, and second, even if relevant, whether the policy in favor of discovery outweighs the individual’s right to privacy in the contents of the material sought. 401 California courts have generally concluded that the public

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