Privacy Issues in the Workplace

B. O FF -D UTY C ONDUCT

1. A PPLICABLE L EGAL S TANDARDS

a. Bases for Regulating Off-Duty Conduct – “Nexus to Employment” The United States and California Constitutions protect the privacy of employees in their off-duty conduct. Employers must not unreasonably regulate/restrict that conduct, and must not base employment decisions on off-duty conduct that does not have a relationship to the employment. The Ninth Circuit Court of Appeals, in Thorne v. City of El Segundo , 525 stated the rule as follows:

“In the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant’s on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on…private non-job-related considerations…in rejecting [or making any employment decision regarding] an applicant for employment [or employee] violates the [individual’s] protected constitutional interests.”

The necessary relationship is usually referred to as “job nexus.” Nexus is determined not only by the type of off-duty conduct but by reference to the type of employer and duties and responsibilities of the particular position in question. Courts have also found a nexus where an employee’s off-duty conduct creates a conflict of interest or where an employee’s illegal off-duty conduct undermines an employee’s or agency department’s credibility with the public. For example, an employer does not have a legitimate interest in knowing about a police officer applicant’s prior sexual associations, sexual practices, and miscarriage. The employer would have to show that its inquiry was justified by a legitimate compelling interest of the department, that the inquiry was narrowly tailored to meet those legitimate interests, and that the department’s use of the information was proper and in furtherance of the legitimate compelling interest.

Anderson v. State Personnel Board A police department was justified in terminating a highway patrol officer for intentionally appearing nude in sight of neighborhood women and children on numerous occasions over a period of time. The officer lost his credibility with allied law enforcement agencies and his peers, and brought embarrassment to the department. 526

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 168