Labor Employment Law Blog

By Rebecca Hirschklau and James Hays

The job market appears to be on an upswing, and with this upswing, and the advent of new technology, comes new challenges for employers and applicants alike. Potential employees may have online identities that many employers deem useful when investigating a job applicant. However, privacy settings on many social media sites allow an applicant to hide his/her online persona from these potential employers. As a result, a new trend in applicant background investigating has surfaced: asking an applicant for his/her username and password to social media sites during the interview process.

By Evgenia Fkiaras

Following a trend by the Federal government to liberalize anti-discrimination laws in favor of employees, the Department of Labor Office of Federal Contract Compliance Programs ("OFCCP") has proposed regulations that would require employers who wish to keep their contracts (and subcontracts) with the Federal government to attempt to maintain a workforce where 7% of employees are individuals with disabilities. The public comment period for this proposal has just closed, and the OFCCP is now in the process of reviewing respondents' reactions.

On June 17, 2010, the United States Supreme Court issued its opinion in the case of Quon v. Arch Wireless Operating and The Ontario Police Department. The Supreme Court had to decide whether the City of Ontario had violated the privacy rights of Quon and the officers he texted when, as part of an overage audit, Ontario Police Department Management read transcripts of messages Quon sent on his City-issued pager.

On December 14, 2009, the United States Supreme Court granted review in the case of Quon v. Arch Wireless Operating and The Ontario Police Department, 529 F.3d. 892 (9th Cir. 2008). In this case, the Ninth Circuit Court of Appeal held that the City of Ontario violated the Fourth Amendment and California constitutional privacy rights of the SWAT team member and the officers he texted when, as part of an overage audit, Management read transcripts of the messages the officer sent on his City-issued pager.

In Hernandez v. Hillsides, the California Supreme Court provided guidance to employers about the reasonable scope, purpose, and methods of conducting employee surveillance in the workplace. In essence, the Court confirmed a sliding scale for employee expectations of privacy in the workplace based on the office environment. But it allowed employers considerable flexibility to monitor employees for legitimate business reasons so long as the surveillance is properly limited in scope and intrusiveness. Finally, the Court suggested that employers should give notice to employees that monitoring might be used.

A company can be liable for violating its employees' privacy rights when it looks at the content of their text messages, even when the text-messaging devices were provided by the company, held the Ninth Circuit Court of Appeals.  Employers thus cannot be complacent about privacy rights just because they own the means by which their employees communicate.  Employers can, however, still access their employee's electronic communications if they take appropriate and consistent measures to alert employees of the employer's rights to these communications.

On January 25, 2007, the California Supreme Court issued a ruling against Pioneer Electronics (USA), Inc. ("Pioneer") which impacts consumer class actions, but may also have an impact on employment class actions.  The decision granted the plaintiff's request for pre-certification notice to prospective class members and permitted disclosure of the prospective class members' contact information (addresses and telephone numbers) absent an affirmative assertion of privacy rights.

A California Court of Appeal recently found that an employer's surreptitiously hiding a motion sensor video camera on a bookshelf in an employee office could constitute a violation of the  right to privacy provided by the California Constitution.