Employment /
Labor Alert:
Supreme Court
Approves Search of Police Officer’s Text Messages
On June 17, 2010, the United States
Supreme Court issued an opinion in the case of
Ontario v. Quon in which the Court held that a
police department’s search of the text messages on
an officer’s department-issued pager did not violate
the officer’s Fourth Amendment rights. The Court
ruled that even if the officer had a reasonable
expectation of privacy with respect to his personal
communication on an employer-owned device, the
department’s search was reasonable because it was
motivated by a legitimate work-related purpose and
because it was not excessive in scope.
In this case, the City of Ontario,
California acquired alphanumeric pagers able to send
and receive text messages. Its contract with its
service provider, Arch Wireless, provided for a
monthly limit on the number of characters each pager
could send or receive, and specified that usage
exceeding that number would result in an additional
fee. The city issued the pagers to Sgt. Jeff Quon
and other officers in its police department. The
city had a computer, internet, and email policy that
prohibited personal use. This policy also contained
language advising the employees that they should
have no expectation of privacy or confidentiality in
the use of the City’s electronic devices. When the
city purchased the pagers, it announced that they,
too, would be covered by the city’s e-mail policy;
however, this instruction was not expressed as a
formal amendment to the written policy. Instead,
day-to-day practice evolved into an informal policy
on the use of pagers, with department officials
contacting those officers who exceeded monthly limit
and allowing the officer to pay for the overage.
When Quon and others exceeded their monthly limits
for several months running, the police chief sought
to determine whether the existing plan limit was too
low, i.e., whether the officers had to pay
fees for sending work-related messages or,
conversely, whether the overages were for personal
messages. After Arch Wireless provided transcripts
of Quon’s and another employee’s August and
September 2002 text messages, it was discovered that
many of Quon’s messages were not work-related, and
some were sexually explicit. The police chief
referred the matter to the police department’s
internal affairs division. The investigating officer
redacted from his transcript any messages Quon sent
while off duty, but the transcript showed that few
of his on-duty messages related to police business.
Quon was disciplined for violating department rules.
The Court found the department’s search
of Quon’s message transcripts was reasonable, and
did not violate his Fourth Amendment privacy rights,
since the search was motivated by a legitimate
work-related purpose and because it was not
excessive in scope. There were reasonable grounds
for finding it necessary for a non-investigatory
work-related purpose in that the police chief had
ordered the audit to determine whether the city’s
contractual character limit was sufficient to meet
the city’s needs. The review of the text transcripts
was also reasonably related to the objectives of the
search because both the city and the department had
a legitimate interest in ensuring that employees
were not being forced to pay out of their own
pockets for work-related expenses, or, on the other
hand, that the city was not paying for extensive
personal communications. Reviewing the text
transcripts was an efficient and expedient way to
determine whether either of these factors caused
Quon’s overages. Finally, the review was not
excessively intrusive, because although Quon had
exceeded his monthly allotment a number of times,
the police department requested transcripts for only
August and September 2002 in order to obtain a large
enough sample to decide the plan limits’ efficiency,
and all the messages that Quon sent while off duty
were redacted. From the department’s perspective,
the fact that Quon likely only had a limited privacy
expectation lessened the risk, according to the
Court, that the review would intrude on highly
private details of Quon’s life. Because the city had
a legitimate reason for the search and it was not
excessively intrusive in light of that
justification, the search would be regarded as
reasonable and normal in the private-employer
context.
The Court purposefully disposed of
this case on narrow and fact-specific grounds,
citing rapid changes in the dynamics of
communication and information transmission and in
what society accepts as proper behavior with respect
to these things. The Court said that it was
presently uncertain how work place norms, and the
law’s treatment of them, will evolve given advances
in technology and communication. However, the Court
indicated that when an employer has a policy in
place which prohibits personal communication through
work channels and the employee is notified that such
communication may be audited, the employee has less
of an expectation of privacy with regard to those
communications. Even if the employee has a
reasonable expectation of privacy regarding personal
communications at work, however, an employer may
audit employees’ communications if the audit is done
for a legitimate work-related reason and if steps
are taken to ensure that the monitoring is not
excessively intrusive.
WORDS TO THE WISE: All Company
policies should be reviewed periodically to ensure
the most up-to-date requirements in the electronic
communication arena. Employees must be told they do
not have privacy or confidentiality on Company owned
and provided electronic communication devices.
The Department of Labor Final Rule Requiring Federal
Contractors to Notify
Employees of Their Right to Unionize takes Effect
June 19, 2010.
Last week the Department of Labor
issued its final rule on Executive Order 13496,
which was signed by President Obama on January 30,
2009. The final rule is applicable to all new or
renewed government contracts solicited after June
21, 2010, with government prime contracts amounting
to $100,000 or more and subcontracts taken in the
amount of $10,000 or more. Any new or renewed
contract or modification after this date will
trigger the requirement for federal contractors to
inform employees by posting notice of their
rights under the NLRA (National Labor Relations Act)
to form, join and support unionization and to
collectively bargain with their employers.
Employers must post physical notices in
“conspicuous” areas around the plant and/or office
where employee notices are customarily placed.
Employers who are in the practice of posting notices
electronically must also post the required notice on
any website which is used to inform employees about
terms and conditions of employment, and also
providing a link to the Department of Labor’s site
pointing to a full text of the poster. It is
required that the link specify in these words,
that it is an “Important Notice about Employee
Rights to Organize and Bargain Collectively with
Their Employers.” For those who have “predominately
non-English speaking employees” they must also
furnish a copy of the notice in languages that the
employees speak. The Department of Labor will
provide translations of the notice in order to
comply with the electronic and physical posting
requirement. It is imperative that all physical and
electronic postings be no less prominent than other
employee notice postings.
Violation of these requirements will
impose sanctions for non-compliance, including
suspension or cancellation of any existing
contract. Contractors may also be disbarred from
obtaining future government contracts and be
included on a list provided to all executive
agencies listing all contractors and subcontractors
who are ineligible for contracts due to
non-compliance.
WORDS TO THE WISE: Employers who
fear that the new posting requirement will encourage
employees to unionize should take steps to audit
their employment practices, educate supervisors on
how unions organize, and what steps to take upon
suspecting organizing activity. You may also
consider a meeting with employees to inform them why
the company favors a union free environment, and the
pitfalls of unionization.
Please
contact the attorneys of Weintraub Stock in
order to schedule your Unionization Avoidance
Training today, and you can also sign up for our
June 11, 2010 seminar about CHANGING LABOR ISSUES
and the impact on the workplace. Sign up now at
www.weintraubstock.com.
Go to “Seminars” and follow the link.
Supreme Court
Relaxes the Standard of Time Limitations For Filing
Disparate Impact Charges
The United States Supreme Court
recently issued a unanimous opinion in the case of
Lewis v. City of Chicago in which the Court
held that time limitations on Title VII
discrimination claims are no longer to be strictly
construed by relation to the original discriminatory
employment action. Instead, time limitation periods
are to be applied in reference to any later
implementations of the original action, even those
occurring well outside the time limitation period
for the original discriminatory act.
In this case, the city of Chicago
administered a written examination to over 26,000
job applicants seeking positions with the Chicago
Fire Department. The scores were then categorized
according to performance as “well-qualified,”
“qualified,” or “not qualified.” The city drew
randomly from the “well-qualified” list over the
next six years until it had exhausted the list; then
it began to draw from the “qualified” list. Several
African-American applicants who had scored in the
“qualified” range filed discrimination charges with
the EEOC nearly two years after the examination was
administered. They received right-to-sue letters and
filed suit under Title VII alleging that the
examination had a disparate impact on
African-American applicants.
The Court held that such categorization
of test scores could be the basis for a disparate
impact claim under Title VII of the Civil Rights Act
of 1964. Title VII prohibits employers from using
employment practices that cause a disparate impact
on the basis of race, such as test scores during an
application process, without the showing of
legitimate business necessity. The Court rejected
the city’s argument that the EEOC discrimination
charges were untimely because they didn’t occur
within 300 days of the test score categorization,
which was the alleged unfair practice. The Court
held that continued use of the unfair employment
practice extended the time limit for filing an EEOC
charge, as new violations and new claims could arise
through continued implementation of the practice.
WORDS
TO THE WISE: Review and check all policies for
non-discriminatory effects because if an employee
can demonstrate an ongoing discriminatory practice
that caused a disparate impact, then the employee
can possibly bring an EEOC charge that is outside
the 300 day time limitation!
Check
website
www.weintraubstock.com
for upcoming seminar topics.
Litigation Holds:
Spoliation
Can Spoil Your Business!
In today’s business
environment, most data is developed and stored
electronically, due to the increased use of e-mail,
computerized voicemail, Blackberries, and instant
messaging. Electronic data normally undergoes
automatic overwriting on backup tapes. The
overwriting process may automatically destroy
deleted documents and files. But many of these
documents are discoverable. Once potential
litigation is foreseeable, a litigation hold must be
put in place in order to preserve discoverable
information.
When
litigation is foreseeable, courts require employers
and attorneys to identify “key players” to the
litigation and to implement steps that will preserve
and retain relevant documents once the duty to
preserve attaches. As the court held in Zubulake
v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y., 2003),
this duty attaches once a litigant is made aware
that evidence is relevant to a litigation or when
the litigant should have known of its relevance. A
“litigation hold” may instruct employees to retain
any backup tapes that may contain discoverable
documents, as well as to make mirror images of key
employees’ hard drives. A company’s failure to
issue a litigation hold and to adhere to it can
result in the court’s issuing to the jury an adverse
inference that the missing evidence would have been
beneficial to the plaintiff’s case, or the court
might impose sanctions on the employer or even issue
a default judgment in favor of the plaintiff!
For
example, a granted adverse-inference sanctions based
on the defendant’s continued deleting and
overwriting procedures, which had resulted in
deletion of discoverable e-mails after the
defendant had issued its staff a letter instructing
staff to preserve all emails and the like. See
KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky.
July 22, 2009).
Another court issued
to the jury an adverse jury instruction against the
employer with regard to all evidence that was
contained on a particular computer, after the
company failed to issue litigation holds to its key
players, thereby resulting in three computers being
discarded. The pro se plaintiff was allowed submit
a list of expenses—to be paid by the
employer—relating to his motion seeking spoliation
sanctions. See Goodman v. Paxair Servs.,
Inc., 2009 WL 1955805 (D. Md. July 7, 2009).
It is
imperative that businesses identify key players and
issue litigation holds once litigation is
anticipated or initiated. All discoverable
electronic evidence is to be retained, thereby
suspending the normal document-retention and
destruction procedures. Mirror images of key
players’ hard drives should be made. The litigation
hold should regularly be re-issued to keep all new
staff aware, as well as reminding key employees. An
adverse-inference instruction to the jury is very
damaging and difficult to overcome, since the jury
is instructed to infer that the spoliator purposly
destroyed the evidence upon realizing it was not in
its favor.
NLRB
CLARIFIES RULES FOR FINDING SUPERVISORY STATUS UNDER
THE LABOR ACT
The
NLRB significantly increases the number of employees
under the Labor Act who will be deemed
“supervisors,” by defining a “supervisor” as one who
“assigns” and is given significant overall duties,
is “responsible” or accountable for individual
decisions and uses “independent judgment.”
The
National Labor Relations Board recently set forth
guidelines for determining whether an individual is
a supervisor under the National Labor Relations
Act.
In
Oakwood Healthcare, Inc., 348 NLRB No. 37
(2006), the Board held that twelve RNs assigned as
“permanent charge” nurses by their employer,
exercised supervisory authority in assigning
employees within the meaning of Section 2(11) of the
Act, and therefore, should not be included in the
bargaining unit. In 2001, the Supreme Court
criticized the Board’s interpretation of the term
“independent judgment” when it reviewed NLRB v.
Kentucky River Community Care, 532 U.S. 706
(2001). The Board used Oakwood Healthcare, Inc.
as an opportunity to revisit and clarify its
interpretation of the term “independent judgment”
along with the terms “assign” and “responsibly to
direct,” as set forth in Section 2(11). The Board
also issued two other decisions on the same day
applying the guidelines from Oakwood.
Under
the National Labor Relations Act “supervisors” are
excluded from most of the Act’s protections. A
“supervisor” is defined through different functions,
and the Board focused its analysis on three terms in
particular: Assign, responsibly to direct,
and the supervisor’s use of independent judgment
when exercising.
Assign
The
Board defined the term “assign” as the act of
“designating an employee to a place (such as a
location, department, or wing), appointing an
individual to a time (such as a shift or overtime
period), or giving significant overall duties, i.e.
tasks, to an employee.” Additionally, the Board
determined that an employee who gives only, “ad hoc
instruction that an employee may perform a discrete
task” will not typically fall within the Act’s
definition of a supervisor.
Responsibly to Direct
The
Board found that “responsible” required a finding of
accountability to the point where the putative
supervisor had the authority to direct work and take
corrective action, in addition to any adverse
consequences he/she may face in the direction of
other employees. The Board provided an example of
“responsibly to direct,” “If a person [who is both
responsible and using independent judgment] on the
shop floor has men under him, and if that person
decides what job shall be undertaken next or who
shall do it, that person is a supervisor.”
Independent
Judgment
The
Board defined “independent judgment” to be judgment
exercised without the control of another authority.
The Board went on to note that the degree of
discretion exercised must rise above the “routine or
clerical” in order to constitute “independent
judgment” under the Act. Under the Act, independent
judgment exercised using professional or technical
expertise will suffice.
The
Decision
The
Board, in finding that the twelve permanent charge
nurses were supervisors under the Act, determined
that as a regular part of their duties as charge
nurses, they assigned nursing personnel to the
specific patients for whom they would care during
their shift. According to the Board, such
assignments consisted of giving “significant overall
duties” to an employee and met the statutory
definition of “assign” under the Act. The Board
also found that the Employer met its burden, showing
that its charge nurses exercised independent
judgment in making such assignments. The Board
further stated that employees, who work supervisory
shifts only on a rotating basis, may not qualify as
supervisors under the Act. The Board noted that the
supervisory status of such employees would depend on
the frequency and consistency of the supervisory
shifts.
Tips
for Employers
The
Board’s decision in Oakwood has many
implications for employers. It may now be easier to
establish the supervisory status of some employees.
Supervisory employees do not enjoy the protections
of the Act and can not be included in a bargaining
unit with rank and file employees. This will likely
lead to more threshold challenges over unit
composition and post election objections and voter
challenges. However, the high level of scrutiny used
in determining the outcome of these cases will lead
to a very detailed, fact specific examination of
each situation. The party urging supervisory status
will have the burden of proof on the issue.
Therefore, employers who wish to exclude certain
employees from the unit on the grounds he/she is a
supervisor must be prepared to produce evidence that
the employees meet the criteria under Section 2(11)
as interpreted by the Board. Nonunion employers
should carefully review and clarify particular job
descriptions, responsibilities, and any uncertain
classifications or terms about whether certain
employees exercise supervisory authority. This is
important in developing and implementing union
avoidance strategies. Unionized employers should
also reevaluate whether certain employees are or are
not in supervisory positions under the new terms
laid out by the Board.
