Privacy Issues in the Workplace

In contrast, a claim of intrusion upon seclusion does not involve a publication, but rather an unreasonable and highly offensive intrusion upon a person’s solitude or private life. 19 These types of claims can arise when an employer requires an individual to divulge information about himself or herself or when an employer conducts an investigation of an employee. To determine whether an intrusion is reasonable, courts examine factors including whether the means used are abnormal and whether the purpose for intruding is proper.

Not all intrusions are improper. For example, no right of privacy exists for matters or things within the public domain or in places one typically expects others to be. 20

The final type of privacy tort is seldom, if ever, asserted in the employment relationship. It involves use of someone’s name or likeness for commercial purposes without his or her consent.

3. F EDERAL AND C ALIFORNIA S TATUTES There is also a vast array of statutes resulting from legislation passed by Congress and the California legislature that prohibit specific types of privacy intrusions and provide bases for recovery by employees, and, in some cases, government prosecutors. For example, Labor Code section 432.7 prohibits an employer from seeking or using arrest records of job applicants. Many of these statutes are discussed in more detail in the sections to which they apply below. 4. C ALIFORNIA P UBLIC S AFETY O FFICER ’ S P ROCEDURAL B ILL OF R IGHTS A CT AND T HE F IREFIGHTERS P ROCEDURAL B ILL OF R IGHTS A CT The Public Safety Officers’ Procedural Bill of Rights Act (POBR), Government Code section 3300, et seq ., specifies elements of procedural rights that must be accorded to public safety officers when they are subject to investigation or discipline. Employees subject to this Act include city police officers, county deputy sheriffs, state police and highway patrol officers, D.A. investigators, parole and probation officers, school district security officers, etc. While this Act falls under the category of California Statutes, it bears specific mentioning here because it governs many of the areas of right of privacy of public safety officers in their personnel relationship with employers. The Act is discussed throughout this workbook. Modeled in large part on the POBR, the Firefighters Procedural Bill of Rights Act (FBOR) is codified at Government Code sections 3250 through 3262. The FBOR generally applies to any firefighter employed by a public agency, including a firefighter who is a paramedic or an emergency medical technician. However, the FBOR does not protect inmate firefighters or individuals who are already protected by the POBR, such as arson investigators. Moreover, unlike the POBR, which protects probationary peace officers, the FBOR does not cover firefighters who have not yet completed their probation. The FBOR creates privacy rights for firefighters that impact investigations and discipline.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 12