To Protect and Serve: Privacy Concerns for Public EmployersDo public employees have private lives? In other words, just how much can a public employer base decisions on an employee’s off-duty conduct? The Ninth Circuit, in a recent opinion, disagreeing with both the Fifth and Tenth Circuits, has determined that the question still remains to be decided.

The Facts

In June 2012, Janelle Perez worked as a probationary police officer for the Roseville Police Department (RPD). A few months into her tenure, Perez and a fellow officer began an intimate relationship. At the time, both were separated but still married to their spouses. The coworker’s wife filed a citizen complaint alleging that inappropriate trysts had occurred while the officers were on duty. Internal Affairs investigated but found no evidence that Perez and her fellow officer had engaged in any on-duty sexual behavior.

Following the internal affairs investigation, RPD terminated her employment. Perez sued, alleging a number of claims, including constitutional violations of her rights to privacy and intimate association under the First, Fourth, and 14th Amendments. Perez’s claim was that the RPD could not terminate her based on the fact that it disapproved of her private, off-duty sexual conduct. The district court awarded summary judgment to the RPD and the individual defendants, finding that they were shielded by qualified immunity because Perez failed to establish a constitutional right to intimacy with her coworker. Perez appealed.

The Ninth Circuit reversed and remanded on the issue of privacy. The panel reiterated its prior holdings that the constitutional guarantees of privacy and free association bar the state from taking adverse employment actions based on private sexual conduct, unless the state can show that the behavior has a negative effect on job performance or violates a constitutionally permissible, narrowly tailored regulation. Ultimately, the panel decided that there existed a genuine factual dispute as to whether the RPD terminated Perez at least partially due to her extramarital affair. (Apparently there was some inconsistency among her superiors as to the basis for her discharge.)

Specifically, the panel pointed to Thorne v. City of El Segundowhich preserved a public employee’s privacy rights where termination was linked, in part, to private, off-duty sexual conduct. The Ninth Circuit found that in Perez’s case, as in Thorne, the RPD could not produce any evidence that the affair had an adverse impact on job performance, nor that any improper behavior occurred while Perez was on duty.

The Road Not Taken…

The Ninth Circuit explicitly rejected the approaches taken by the Fifth Circuit—the wife-swapping case—and the Tenth Circuit—another extramarital affair case. The court explained that the Fifth and Tenth Circuits both misinterpreted the Supreme Court’s Lawrence v. Texas, a decision on the right of sexual autonomy. The Ninth Circuit reasoned that Lawrence recognized the import of intimate sexual conduct within the canon of substantive liberties preserved by the Due Process Clause. Further, Lawrence made it clear that non-traditional was not tantamount to immoral.

Overarching Privacy Concerns

Notably, the Fourth and 14th Amendments’ protections of privacy are not applicable to private employers. Government and other public employees enjoy a constitutionally protected, “reasonable expectation” of privacy that their private counterparts do not. However, Perez, Thorne, and the flux of privacy cases broiling amongst the judicial circuits should still present concerns to private employers. Again, the Fourth and 14th Amendments certainly don’t apply in the private context, but there are still common law privacy interests that all employers should be wary of (i.e., intrusion upon seclusion and public disclosure of private facts).

Claims alleging violations of privacy are complex; they require case-by-case evaluations of a myriad of factors from the physical environment of the workplace, to employer policies, to employee conduct and knowledge. Notwithstanding, the takeaway from Perez is that expectations of privacy can be both tenuous and undefined. Nevertheless, there are still ways to insulate your company from potential claims:

  1. Establish a clear written policy. Whether you’re addressing workplace technology or fraternization amongst employees, develop a comprehensive policy that sets out your expectations. Figure out what private conduct could impact your business and address that conduct. By providing notice on the front-end, it becomes noticeably easier to combat employee expectations of privacy in areas that have been clearly addressed.
  2. Reinforce your policies. Acquiescence is one of the many ways that employer policies can be undermined. Reinforce policies through periodic restatements, warnings, and, if necessary, discipline.
  3. Confirm employee understanding of policies. When you first hire an employee or when you’re conducting an annual review, make it a point to have employees take time to read the policy and sign an acknowledgment form, outlining that they received it, read it, understand it, and consent to be governed by it.

The contours of privacy, and what employees can reasonably expect to be unassailable realms of their lives, are changing daily. Perez is yet another indicator that employers—both public and private—must be cautious, especially when considering off-the-job conduct in making job-related decisions.