Privacy Issues in the Workplace

6. L ANGUAGE

Under FEHA, Government Code section 12951, employers are barred from adopting or enforcing a policy that prohibits the use of any language in the workplace unless: (i) the policy is justified by business necessity; and (ii) the employer provides the employees with adequate notice of the policy and the consequences of violating the policy. Policies prohibiting the use of any language are reviewed under a stringent standard. Section 12951(b) requires that the employer show (i) “an overriding legitimate business purpose” that makes the language restriction “necessary to the safe and efficient operation of the business,” (ii) that the restriction fulfills the business purpose, and (iii) that there is “no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.” Importantly, employers are subject to Section 12951 even if the policy is verbal, and not reduced to writing. Employers cannot verbally threaten employees with discipline, or any other adverse action, for speaking in languages other than English. Any policy, whether verbal or written, will subject the employer to liability under Section 12951. Section 12951 became effective in 2002. Thus, employers should not rely on case law decided before Section 12951 was enacted in developing language restriction policies. Cases that were decided prior to its enactment would likely have a different outcome in light of Section 12951. 7. M EDIA A TTENTION Under Government Code section 3303(e), the employer [law enforcement agency] must not cause the public safety officer under interrogation to be subjected to visits by the press or news media without his expressed consent nor shall his home address or photograph be given to the press or news media without his expressed consent. Similar protection is provided to firefighters under the Firefighters Procedural Bill of Rights Act. Specifically, a firefighter cannot be subjected by his or her employer to visits by the press or news media without his or her permission. 619 Nor may an employer release a firefighter’s photograph, address, telephone number, or other contact information to the press or news media without the firefighter’s consent. 620

8. F INANCIAL S TATUS

Given the right of privacy, employers must have a job-related reason for inquiring into an employee’s financial status.

Under Government Code section 3308, no peace officer can be required or requested for purposes of job assignment or other personnel action to disclose any item of his or her property, income, assets, source of income, debts or personal or domestic expenditures (including those of any member of his or her family or household) unless:

 Such information is obtained or required under state law or proper legal procedures;

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 184