Privacy Issues in the Workplace

 Make or permit disclosures of personnel information or files absent written employee authorization or court order 304  Make authorized or ordered disclosures that are broader than authorization or order 305

Generally, employers must NOT:

 Waive the privacy rights of employees 306

 Employee’s interest in confidentiality of personnel records v. the employer’s or public interest in disclosing them

Applicable balancing test:

A. I NTERNAL A CCESS TO P ERSONNEL R ECORDS AND F ILES

1. P RIVACY R IGHTS OF T HIRD P ARTIES W HEN E MPLOYEES I NSPECT O WN P ERSONNEL F ILES California Labor Code section 1198.5 gives all employees (except public safety officers whose inspection right derives from the POBR and firefighters whose inspection rights are found in the FOBR) the right to inspect their own personnel files. This right extends to all documents which the employer maintains relating to the employee’s performance or to any grievance concerning the employee. Under Government Code section 3305, public safety officers are entitled to inspect any adverse comment before it is entered into their personnel file. The term “adverse comment” includes citizen complaints. 307

 Investigation of a possible criminal offense



Letters of reference

 Ratings, reports, or records obtained prior to the employee's employment

 Ratings, reports or records prepared by an identifiable examination committee  Ratings, reports or records obtained in connection with a promotional examination

Similarly, no firefighter shall have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comments indicating he or she is aware of such comment, except that, such entry may be made, if after reading such instrument the firefighter refuses to sign it. Should a firefighter refuse to

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 98