Labor Employment Law Blog

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.