Privacy Issues in the Workplace

2. O UTSIDE E MPLOYMENT Employees generally do not have the right to engage in outside employment which adversely impacts upon the employees’ regular position. Government Code section 1126 sets forth the necessary nexus for limiting employees’ outside employment. Section 1126 provides as follows: “[A] local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties…or with the duties, functions, or responsibilities of his or her appointing power or the agency.” “Each appointing power may determine…those outside activities which…are inconsistent with, incompatible to, or in conflict with their duties as local agency officers or employees.”  employee uses local agency time, facilities, property, or influence for private gain;  employee accepts or receives compensation for performing the duties required by his or her position other than from the local agency;  employee performs an act which may later be subject to direct or indirect control, inspection, review, audit, or enforcement of another officer or employee of the local agency; or  the outside employment involves time demands that would render performance of the duties of the normal position less efficient. 602 Incompatibility may be found in the following circumstances, but is not limited to these circumstances: 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

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