Privacy Issues in the Workplace

After addressing the strength of the employee’s First Amendment rights, the court in Moser then considered the other side of the balancing test, which is the employer’s administrative interests. The court found there was a factual dispute over whether the Facebook post would have caused disruption to the police department or exposed it to future legal liability. It noted there was no media coverage, no evidence that anyone knew about the post other than the person who made the anonymous tip, and little chance the public would have seen it because the SWAT sniper deleted his Facebook comment. A significant point to take away from this ruling is that before disciplining employees based on their speech, public entities should consider whether they can produce evidence that the speech has or will disrupt their workplace. The police department has the option to file a petition for rehearing en banc (i.e., by a larger panel of the Ninth Circuit) to ask it to reach a difference decision, and can ask the U.S. Supreme Court to choose to hear the case and possibly reach a different result. However, the ruling in Moser is now the law in California and courts will rely on it when issuing rulings related to public employees’ First Amendment rights. With the rise in social media usage, public entities will increasingly be challenged with how to handle controversial online posts by their employees. They should consider seeking legal advice when deciding whether to impose discipline.

Employers should be aware of Labor Code section 980, effective January 1, 2013, which prohibits employers from requiring or requesting that an employee or applicant:

 Disclose a username or password for the purpose of accessing personal social media;

 Access personal social media in the presence of the employer; or



Divulge any personal social media.

Labor Code section 980 defines “social media” as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” 469 Section 980 does not affect an employer’s “existing rights and obligations” to request an employee to divulge personal social media when “reasonably believed” to be relevant to an investigation into employee misconduct. Thus, to the extent an employer already has a right to request an employee to divulge personal social media as part of an investigation into employee misconduct (e.g., the alleged acts have a nexus to the employee’s employment and the employee’s right to privacy is outweighed by the employer’s interest in preventing and addressing the alleged misconduct), section 980 does not affect the employer’s ability to request this information. Also, an employer is not precluded from asking an employee for a username or password to access employer-issued electronic equipment.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 148