Privacy Issues in the Workplace

the highest level of protection as it related to an important public policy issue. A significant point to take away from this part of the ruling is that before disciplining employees based upon their speech, public employers must consider whether the employee could claim his or her speech sought to comments on problems or challenges of the employee’s work that the public would be concerned about (not just personal gripes). If it could be interpreted that way, the speech will be entitled to greater protection under the First Amendment. After addressing the strength of the employee’s First Amendment rights, the court in Moser then considered the other side of the balancing test, which is the employer’s administrative interests. The court found there was a factual dispute over whether the Facebook post would have caused disruption to the police department or exposed it to future legal liability. It noted there was no media coverage, no evidence that anyone knew about the post other than the person who made the anonymous tip, and little chance the public would have seen it because the SWAT sniper deleted his Facebook comment. Accordingly, public employers should consider whether they can produce evidence that the speech has or will disrupt their workplace before proceeding to discipline speech that touches on matters of public concern. The police department has the option to file a petition for rehearing en banc (i.e., by a larger panel of the Ninth Circuit) to ask the Court of Appeal to reach a difference decision, and it can also appeal to the U.S. Supreme Court. However, the ruling in Moser is now the law in California and courts will rely on it when issuing rulings related to public employees’ First Amendment rights. With the rise in social media usage, public entities will increasingly be challenged with how to handle controversial online posts by their employees. They should consider seeking legal advice when deciding whether to impose discipline.

Labor Code section 980 prohibits employers from requiring or requesting that an employee or applicant:

 Disclose a username or password for the purpose of accessing personal social media;

 Access personal social media in the presence of the employer; or



Divulge any personal social media.

Labor Code section 980 defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” 469 Section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. Thus, to the extent an employer already has a

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