Privacy Issues in the Workplace

The Court also relied on evidence that Lampedusa did not take responsibility for his conduct, but rather stated that he expected parents and students to take care not to look at such ads on Craigslist, which have both age restrictions and warnings that the content is explicit. Lampedusa also asserted that, if students saw his ad, it would not affect his ability to teach them effectively. The court found that Lampedusa's conduct was immoral because it evidenced indecency and moral indifference. The court further noted that disciplining Lampedusa for publicly posting his ad did not infringe on his constitutional rights or the rights of other teachers. These factors established evident unfitness for service. Lampedusa was disciplined not for seeking a consensual sexual relationship with another adult but because he used poor judgment in a manner that affected his ability to serve as an administrator in a middle school. Perez v. City of Roseville 533 A City discharged a former probationary police officer after an internal affairs investigation determined that she had had an off-duty sexual relationship with a fellow officer. The City failed to introduce sufficient evidence that the affair had “a meaningful impact on her job performance” and there was no contention that her sexual conduct violated “any narrowly drawn, constitutionally permissible regulation.” 534 There was no evidence of on-duty sexual contact between the officers. 535 The Ninth Circuit found that terminating a police officer for engaging in an off-duty, extramarital affair with a co-worker violates the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutional permissible, narrowly tailored regulation.” 536 The matter was remanded to the trial court for further proceedings on whether the discharge violated her rights of privacy and intimate association. 537

i. Exception – Discussions about Union Activity or about Terms and Conditions of Employment While employers may discipline employees for conduct on the internet that has a nexus to employment (see San Diego Unified School District v. Commission on Professional Competence (Lampedusa) above), employers should be careful not to discipline employees for complaints about the employee’s terms and conditions of employment. Several recent National Labor Relations Board (NLRB) complaints address whether employees may be disciplined for information that the employees post on their Facebook pages when the information relates to the terms and conditions of employment. 538 Section 7 of the National Relations Act gives both unionized and non-unionized employees the right to discuss the terms and conditions of their employment with co-workers and others. This includes conducting Section 7 activity through use of employer email systems during non-working hours. 539

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