Privacy Issues in the Workplace

the time of the arrest, the officers could take simple steps to prevent the phone from being remotely wiped or data encrypted, such as turning off the phone, removing its battery, or keeping the phone powered on and placed it in a Faraday bag that isolates the phone from radio waves. The Supreme Court's decision in Riley established an important privacy interest. This case will likely influence court decisions in civil cases involving discovery issues or investigations where information is sought from a personal smartphone. Williams v. Superior Court 426 Court permitted discovery of names and address of other employees who may have an interest in a class action to recover wages on their behalf over assertion of privacy objections raised by the employer. Court explained that not ever assertion of a privacy interest under the California Constitution must be overcome by a compelling interest. A compelling interest is only required for “an obvious invasion of an interest fundamental to personal autonomy.” However, “when lesser interests are at stake,” a “more nuanced framework” applies, “with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” 427

2. P UBLIC S AFETY O FFICERS AND F IREFIGHTERS Under the Public Safety Officers Procedural Bill of Rights Act, the agency may not search an officer’s locker or personal storage space except in the officer’s presence, or with his or her consent, or unless a valid search warrant has been obtained, or where he or she has been notified in advance that a search will be conducted. 428 The Firefighters Procedural Bill of Rights Act prohibits the search of a firefighter’s locker or “other space for storage” that may be assigned to him or her unless: (1) the firefighter is present; (2) the firefighter consents to the search; (3) a valid search warrant has been obtained; or (4) the firefighter has been notified that a search will be conducted. This prohibition only applies to lockers or other storage space owned or leased by the employing department or licensing or certifying agency. 429 An agency should not open or search a firefighter’s personal property without the assistance of appropriate law enforcement personnel in conformity with the requirements of the Fourth Amendment of the United States Constitution. However, an office or locker search of space under the employer’s control may still violate the constitutional restriction on unreasonable search or seizures if the employee has a “reasonable expectation of privacy.” As with other employees, if this is the kind of area that is subject to searches on a normal basis, then the employee’s reasonable expectation of privacy may be diminished.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 135