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February 01, 2013

Employee privacy and Internet Social Media

Employee privacy and Internet Social Media

California’s Governor Edmund G. Brown has signed into law a bill that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.

The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.

The new law provides as follows:

California Labor Code
CHAPTER  2.5. Employer Use of Social Media

§980.

 (a) As used in this chapter, “social media” means 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.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.



Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment


Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment  

The Appellate Division sustained the termination of a deputy sheriff’s employment as a deputy sheriff, holding that substantial evidence supports the findings that the deputy sheriff:

[1] Falsely reported that he was unable to work from October through the following June;

[2] Engaged in unauthorized outside employment: and

[3] Lied under oath when he denied engaging in such outside employment at his workers' compensation hearing.

The court ruled that there was no basis to disturb the credibility determinations of the Administrative Law Judge and that the penalty of termination “does not shock our sense of fairness,” citing Cherry v Horn, 66 AD2d 556

The decision is posted on the Internet at:

Challenging the denial of an appeal of an unsatisfactory performance rating


Challenging the denial of an appeal of an unsatisfactory performance rating 
102 AD3d 586

Supreme Court denied a petition seeking to annul the determination by the New York City Board of Education denying an educator’s appeal of an unsatisfactory rating (U-rating) for school year.

The Appellate Division unanimously affirmed the lower court’s ruling, explaining that the educator “failed to show that the U-rating was arbitrary and capricious, or made in bad faith.”

The court noted that detailed observations in reports prepared by the principal and two assistant principals describing the educator's poor performance in class management, engagement of students, and lesson planning provided a rational basis for the U-rating.

Further, said the Appellate Division, the record showed that after the educator received a U-rating at the end of the prior school year and was then provided with a professional development plan at the start of the succeeding school year and, throughout that year, received professional support and had a series of classroom observations by the principal and two assistant principals. Each observation, said the court, was documented by a detailed letter to the educator noting areas of improvement and making specific recommendations for addressing continuing deficiencies.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00418.htm

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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