Privacy Issues in the Workplace

Similarly, the Electronic Discovery Act (“Act”), including section 1985.8, establishes procedures to obtain discovery of electronically stored information for litigants in California state courts and largely tracks the Federal Rules of Civil Procedure. The Act sets forth procedures for objecting to the specified form or forms of producing the electronically stored information requested by the subpoena. Anytime an entity is sued in federal or state court or has notice of a potential claim, it should preserve all electronic information regarding key player in the case or information that pertains to claims or defenses, or other relevant matter, in the case. The entity’s efforts to preserve this information include disabling the destruction of relevant electronically stored information pursuant to the entity’s document retention policies. The entity should work with its IT department to determine the best manner in which to preserve its electronically stored information. The entity would not be sanctioned if the email or other electronically stored information was destroyed before the entity knew or had reason to know about a lawsuit or claim that required that it preserve that evidence. However, once the entity has knowledge of a claim or lawsuit, it must preserve that evidence; a Court could order evidentiary and/or monetary sanctions against the entity if the electronically stored information is destroyed. 406 Entities whose policies require retention of their electronically stored information for only a short period of time, may find their policies tested under these discovery rules. These entities should revise their policies and allow for a freeze on the destruction of any such information that may be pertinent to the litigation. In addition to freezing the terminating mechanisms on their work computers, public entities should instruct their IT departments to save all backup tapes regarding information stored on and/or produced by key employees in the litigation. Public entities should discuss with their IT departments the best manner in which to preserve their electronically stored information pertaining to litigation. 3. EEOC/DFEH R EQUESTS FOR I NFORMATION Public employers often find themselves presented with requests for employee personnel records by governmental agencies empowered with duties of investigation. The California Department of Fair Employment and Housing and the Federal Equal Employment Opportunity Commission often request such files in connection with investigation of discrimination, harassment or retaliation complaints. These requests often have a potential for violating employees’ privacy rights. Failure to cooperate, however, may result in adverse consequences or impact upon the employer. The courts have generally held that an employee’s privacy rights are not violated when his or her personnel records are released to an investigatory agency constrained by confidentiality requirements. For additional protection, any disclosure of personnel files or information of uninvolved employees should be accompanied by a statement regarding confidentiality and a notice of liability of unauthorized disclosure. The statement and notice should read substantially as follows:

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 119