Privacy Issues in the Workplace

 whether the means used in the investigation are abnormal; and

 whether the employer’s purpose in conducting the investigation is proper.

It is not a violation of privacy to follow someone or watch him/her in public because there is no reasonable expectation of privacy while one is in public domain. This includes viewing information posted on website(s) such as Facebook or LinkedIn when the postings are unrestricted and accessible or open to the general public 592 , or when information is available to a sufficiently broad group of individuals such as “friends of friends” on Facebook. 593 Further, there is no violation of privacy involved when others willingly volunteer information. 594 In a 2013 federal court decision outside of California 595 , the court held that while the Stored Communications Act (“SCA”) applied to Facebook postings meant to be kept private, it does not apply if the disclosure is by the intended user or recipient of the posting. One of an employee’s Facebook friends voluntarily took screen shots of a Facebook posting and gave them to management. Management had not requested copies of the postings or asked the friend to spy on the employee. The employee was disciplined as a result of the postings. The court held that management’s obtainment of the posting (initiated by and voluntarily undertaken by the employee’s friend) did not violate the SCA.

NOTE: In California, Labor Code section 980 prohibits an employer from requiring or requesting that an applicant or employee disclosure his/her user name or password to the employer for the purpose of accessing the individuals’ personal social media. 596 An exception exists when the employer reasonably believes the social media is relevant to an investigation of employee misconduct or employee violation of applicable laws and regulations and the social media is used solely for the purpose of the investigation or related proceeding. 597

Separate and apart from privacy concerns, however, caution should be exercised in determining the accuracy and reliability of information available from such public sources as the internet. Not everything, posted in a blog or social networking site about a person is true, and not everything which appears to be attributable to a person is necessarily from the person. The spread of false information about individuals in the internet is rampant and could serve to undermine the reasonableness of an employer’s reliance on that information as an accurate reflection of the employee’s off-duty conduct. An employer may legitimately investigate an employee’s off-duty conduct that is believed to be in violation of legal statutes or the employer’s rules or regulations. It would also be reasonable for an employer to investigate an employee’s off-duty conduct to determine matters that have been placed at issue between the employer and employee in a legal proceeding. This could include such things as level and extent of disability, or need for or use of medical leave.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 179