U. S. Supreme Court Upholds Public Employer’s Search of Employee Text Messages

June 28, 2010

In City of Ontario v. Quon, the Supreme Court overturned a Ninth Circuit Court of Appeals decision and ruled in favor of the employer, the City of Ontario, ruling that the employer’s search of an employee’s text messages was reasonable and not in violation of the Fourth Amendment.

Quon worked for the City of Ontario as a police sergeant and was a member of the Ontario Police Department’s SWAT Team.  The City issued two-way pagers to Quon and other officers in the department.  Prior to acquiring the pagers, the City instituted a policy that informed employees that they should have no expectation of privacy or confidentiality when using these resources.  Quon signed a statement acknowledging his receipt and understanding of the policy.  In addition, the City informed employees, including Quon, that it would treat text messages the same way as it treated e-mails.

When Quon and other officers exceeded their monthly character limits for several months in a row, the department Chief sought to determine whether the character limit was too low.  The wireless provider gave the City transcripts of Quon’s and another employee’s text messages for a two month period.  After reviewing the transcripts, it was discovered that many of Quon’s messages were not work-related, and some were sexually explicit.  An internal investigator redacted Quon’s messages that were communicated during non-work hours, however, the majority of his messages transpired while he was on duty.  Quon was disciplined for violating department rules.

Quon sued the department and the City alleging violation of his Fourth Amendment rights.  The district court granted summary judgment in favor of the City, finding no Fourth Amendment violation.  The Ninth Circuit reversed.

The Supreme Court reversed the Ninth Circuit decision and held that Quon’s Fourth Amendment rights were not violated.  More specifically, the Court held that the City’s review of Quon’s text messages was reasonable because it was motivated by a legitimate work-related purpose and because it was not excessive in scope.  Thus, assuming Quon had some privacy expectation in his messages, that privacy was not unreasonably violated.

The Court did not resolve the parties’ disagreement over Quon’s privacy expectation or whether the individuals who sent messages to Quon had a reasonable expectation of privacy in their messages.  The Court refused to draw any bright lines regarding privacy expectations in electronic communications, noting that communication technology is constantly changing and it’s unknown how workplace norms or the law’s treatment of them will evolve.  However, the Court held that on the facts before it, the search was reasonable and there was no Fourth Amendment violation.

In light of this narrowly tailored decision, employers should seek legal counsel before investigating employee communications in order to ensure that the investigation is legally sound. Employers should also review their communication policies to ensure that employees are sufficiently informed that they do not have an expectation of privacy in communications sent or received on employer provided systems.

Becareful About Changing Company Policies Via-email

June 21, 2010

A recent case clarified that employers should not notify employees of a change in company policies via e-mail. Attorneys on behalf of the employee sued the employer for disability discrimination. The company claimed that the employee wasn’t permitted to sue because they had sent out a lengthy e-mail months earlier to all employees outlining its new mandatory arbitration policy. The e-mail, the company argued, counted as a valid agreement.

The employee claimed he never saw the e-mail, so a lower court let the case go to trial. The court said that, in some cases, policy notifications sent via e-mail could be binding but important policies in which employees surrender their rights should be held to a higher standard.

In my opinion, the holding is important for employers to understand that employees will always state that they did not “get the memo” when it suits their purpose. Technology is making us somewhat lazy because of the ease of sending emails. I agree with the court that important changes in policies deserve a hard copy memo that employees separately sign until the employee handbook can be updated. The problem is how does the employer determine which policy should be a hardcopy memo that deserves a signature. One major example is Arbitration agreements, which the courts have recently held (and consistent with the holding in this case), now need to be a separate signed document and not part of the employee handbook.

Keep it simple. Any memos that involve the rights of employees (wage and hour, disability, discrimination, workers comp or some benefit) should be done by hardcopy with a signature from the employee. I am sure I will be asked about electronic acknowledgements that the employee opened and read the e-mail.  In my opinion, nothing beats an actual signature on a document.

Six Tips To Reduce Your Workers’ Comp Premiums

June 18, 2010

I came across an article that I thought offered some good tips. Some of these you are probably already doing but here they are.

1. Establish an accident-prevention program. There are actually free workshops and consultations with safety and health specialists who will actually design the programs for you. Visit www.osha.gov/dcsp for a list.

2. Investigate all accidents (what caused the accident and keep your records) not just the ones that result in claims.

3. Report accidents promptly. Sometimes injured employees do not want to get treatment and then months later they change their minds. They are probably trying to avoid a drug test at the time of the accident. Have a policy in place that states employees will be sent to the clinic if there is a work-related accident to receive treatment and to be tested for drugs. Let them know that a refusal to be tested will be grounds for immediate termination.

4. Stay in touch with employees and their doctors (as best you can) to follow their recovery.

5. Use return-to-work/light-duty programs.

6. Know your insurance system. Find out if you have the LOWEST classification for your type of business. The classification should be based on your principal line of business, not a particularly hazardous job.

Hope it helps!

Employers Can Legally Control Off-Duty Conduct-Sometimes!

June 14, 2010

The question of whether or not an employer can control off-duty conduct is very common. Employers can control some off-duty conduct but they really have to be careful. Federal law is silent on the issue but thirty states prohibit employers from taking action against employees if they participate in “lawful activities” such as smoking (cigarettes). Some employers have had policies that prohibit employees from smoking at all (smell in their clothes, and they bring that odor into the work environment was one employers logic). On the flip side an employer can take action against an employee for sexually harassing a co-worker after hours because the behavior could create a hostile working environment when both employees return.

A more common situation occurs when an employee who drives a company vehicle (while on duty) gets a DUI while off-duty and that information is picked up by the employers’ insurance company who in turn informs the employer that they will not insure that individual if he drives any company vehicle. If a company is placed in legal or financial jeopardy, the courts are more willing to permit the employer to take action. In this scenario, employers need to have employees who drive any company vehicle sign off that they understand that if they do not maintain a proper driving record they could be subject to disciplinary action up to and including termination. This extra step also helps employers fight off an unemployment claim by the terminated employee (California in particular).

Any policy that involves off-duty conduct should focus on how the behavior affects the individuals’ job performance. Watch overly broad non-fraternization policies either with co-workers or competitors. If  you are concerned that employees who fraternize with competitors may be giving away company secrets then have them sign a nondisclosure agreement and if they violate the policy then terminate them.

These off-duty conduct issues always involve an employees’ right to privacy. You can only invade that privacy if you can prove that it has a direct impact on the individuals’ job performance.

Two More Proposed Legislative Changes-Commission Agreements & A New Leave of Absence

June 10, 2010

SB 1304 (DeSaulnier) – This bill requires private employers to permit employees to take up to 30 days of paid leave for an organ donation and up to five days of paid leave for a bone marrow donation.  The bill also prohibits retaliation against employees who take this leave, and would authorize an employee to bring a civil action to enforce the provisions of this bill.  Though this bill is certainly well-intentioned and designed to encourage organ and bone marrow donations, many groups, including the California Chamber of Commerce, oppose the bill because a new private sector mandate is not the correct policy to advance an otherwise laudable goal.  As small business bankruptcies are at an all-time high in this state, many argue that increasing the cost of doing business in an already costly environment is not a good idea to pursue at this time.  After passing the Senate Judiciary Committee, this bill has been forwarded to the Senate Appropriations Committee. I didn’t think we needed one more leave of absence law! It will probably pass.

SB 1370 (Ducheny) – This bill requires that employees who are paid by commission are provided with a written contract on the terms and conditions of employment.  Under existing law, contracts must be in writing if 1) the employer has no permanent and fixed place of business in California, 2) the employer is entering into a contract of employment with an employee for services to be rendered within California, and 3) the contemplated method of payment involves commissions. Under this legislation, any and all employment contracts that envision commissions as a form of payment must be in writing, regardless of where the employer is located and/or where the employee’s services are to be performed.  This bill was passed by the Senate Committee on Labor and Industrial Relations, and awaits referral to the full Senate.

I have discussed written commission agreements soooo many times. The laws are getting tighter. A number of clients have commission people outside of California. This will also impact the automobile industry am RV dealers who use individuals for special sales events.

Employment Legislation On the Horizon in California

June 7, 2010

Several pieces of employment-related legislation are pending before the California Legislature this 2009-2010 term.  Some of the more noteworthy items are listed and described as follows:

AB 2727 (Bradford) – This bill would prohibit an employer from denying an application for employment for the reason that the applicant has previously been convicted of a criminal offense unless the employer determines that a) there is a direct relationship between the prior conviction and the employment sought or b) the granting of employment would involve an unreasonable risk to property or persons.  This is an expansion from current legal prohibitions on consideration of criminal history.  Currently, the bill sits in the Assembly Appropriations Committee awaiting a re-hearing after initially passing the Committee on strict party lines.

AB 2340 (Monning) – This bill gives California employees the right to take three days of unpaid leave in the event of the death of certain relatives.  More specifically, the bill prohibits an employer discharging, disciplining, or discriminating against an employee for requesting or taking up to three days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  The bereavement leave can be taken up to thirteen months following the death, and need not be on consecutive days.  Last week, this bill was passed by the Assembly Appropriations Committee on a 11-5 margin and will now make its way to the Assembly floor.  Notably, similar legislation was vetoed in 2007 by the Governor Schwarzenegger after passing both the Assembly and Senate.

SB 990 (Dutton) – This bill also seeks to clarify meal break laws by making clear that the requirement to “provide” a meal break means “to make the break available.”  The bill would also clarify circumstances under which an employee could waive a meal period or agree to an on-duty meal period.  This bill still awaits hearing in the Senate Committee on Labor and Industrial Relations.

Later in the week I will be posting two more.