Privacy Issues in the Workplace

information requested. The ALJ decided that the unit members did not have a substantial privacy interest against the union’s right to the information, and also that the district did not bargain the opt-out procedure in good faith before it implemented it. PERB affirmed, determining that the privacy interest of the members was minimal against the union’s need for the information, and that the request was tailored to accommodate any privacy concerns (not asking for personnel files or investigation reports and offered to keep confidential the contact information). A public entity has no affirmative obligation to provide a union information about a pending disciplinary action about a represented employee without a request and without the employee’s consent. 377 4. W ORKSITE I NSPECTIONS OF P ERSONNEL F ILES BY I MMIGRATION E NFORCEMENT A GENTS Effective January 1, 2018, the California Immigrant Worker Protection Act (AB 450) provides that, “except as otherwise required by federal law,” an employer, or a person acting on behalf of the employer, shall not provide “voluntary consent” for an immigrant enforcement agent to: An employer will be subject to penalties for violating each of these provisions. The penalties are civil penalty of two thousand dollars up to five thousand dollars for a first violation, and five thousand dollars up to ten thousand dollars for each subsequent violation. 380 A violation is “each incident” where it is found that a violation occurred “without reference to the number of employees, the number of immigration enforcement agents involved in the incident, or the number of locations affected in a day.” 381 There are exceptions to each of these prohibitions. With respect to the prohibition against voluntary consent to enter non-public areas of the worksite, the provision on penalties does not apply if a court determines that the immigrant enforcement official entered the non-public area without consent of the employer or the other person in charge of the workplace. 382 In addition, the employer or a person acting of the employer’s behalf is not precluded from taking the immigration enforcement officer to a non-public area where employees are not present for the purpose of verifying whether the agent has a judicial warrant. 383 This last exception only applies provided no consent to search non-public areas is given in the process. 384 With respect to the subpoena or court order to access, review, or obtain employee records, the provision on penalties does not apply if a court determines that the immigration enforcement agent was permitted to access, review or obtain the employer’s employee records without the consent of the employer or other person in control of the labor. 385 In addition, the law does not  Enter non-public areas of the worksite, unless the immigration enforcement agent provides a judicial warrant 378  Access, review, or obtain employee records without a subpoena or court order. 379

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