Privacy Issues in the Workplace

 the outside employment involves time demands that would render performance of the duties of the normal position less efficient. 602

A local agency may adopt rules specifying prohibited activities. In Long Beach Police Officer Ass’n. v. City of Long Beach , 603 the California Supreme Court upheld a local agency rule which prohibited police officers from engaging in outside employment which involved serving civil process or assisting in civil cases. The court held that under Section 1126, the specification of activities which “may be prohibited” was intended to guide rather than confine the local agency’s exercise of its authority. Thus, a city is entitled to proscribe incompatible employment even though it is not specifically delineated in the statute. Local agencies should be aware of Penal Code section 70 which specifically authorizes peace officers to be employed as security guards or patrolmen while off duty. It also permits peace officers to perform peace officer functions concurrent with the off-duty position, provided they wear their police uniform, the employer has approved the off-duty position, and the peace officer follows the agency employer's rules and regulations. Although agencies may still deny off-duty security guard work on the basis of Government Code section 1126 or for other business-related reasons, recent amendments to Penal Code section 70 require the local agency to provide those reasons in writing to the peace officer. Employers should note the requirement to provide those reasons in writing to the peace officer. Employers should note that the requirement to provide written reasons for denial applies to any off-duty work, not just security guard work. 604

3. S MOKING

Generally, smoking in the workplace encompasses two different issues:

 What obligation does an employer have to accommodate the rights of non- smokers; and  Can employers ban employees from smoking altogether, both on- and off-duty.

a. The Rights of Non-Smokers Many states and municipalities have adopted smoking restrictions in the workplace that apply to both public and private employers. These new statutes and ordinances impose a duty on employers to minimize a worker’s exposure to smoke. In enacting Labor Code section 6404.5, the California Legislature intended to prohibit the smoking of tobacco products in all enclosed places of employment. Only certain facilities are excluded from this restriction. 605 But places which are not covered by Section 6404.5 are subject to local regulation. 606

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 181