labor lawAdivision of labor law center

The Supreme Court unanimously ruled that an employer has the right to audit personal text messages sent on a company pager. The ruling overturned a lower court’s opinion reported here earlier.

In the June 17, 2010 ruling, the Supreme Court determined that the Ontario, California police department did not violate the Fourth Amendment rights of SWAT Sergeant Jeff Quon when the employer read his explicit text messages to his girlfriend, estranged wife and a male coworker.

In the majority opinion, the court reasoned that the California employer was within their rights to audit text messages in an attempt to determine if the city’s contract with the company providing the pagers was sufficient.

When the city provided pagers to team members, it introduced a computer policy that allowed the city to monitor all network activity including Internet use and email, “with or without notice.” The pager plan included 25,000 characters of free text messages per month. However, Sgt. Quon’s supervisor told team members they could use the pagers for personal messages, as long as the team member paid any overage fees. The supervisor implied that as long as the team member paid the additional charges, texts would remain private. Sgt. Quon did pay overage fees on his pager several times.

Eventually, the city conducted an audit to determine if the pager contract provided a sufficient number of text messages per month. During the course of the audit, the employer learned that Sgt. Quon had sent many sexually explicit messages, often while he was on duty. The employee argued that this was a violation of his Fourth Amendment rights to privacy, but the Supreme Court disagreed.

In the unanimous opinion, Justice Anthony Kennedy noted that because the search was due to a legitimate work-related purpose, not excessive in scope, it was legal. The employer’s policy gave Sgt. Quon no reasonable expectation of privacy in this situation.

Employers should note that this case has limited applications to other situations. The case does not give the employer the right to read every text message sent by every employee, or to use the text messages as a way to monitor employee performance. However, it found that the employer can enforce a written company policy that provides access to employee texts, even if enforcement has been inconsistent.  

Even Justice Kennedy noted that the court must proceed with care in infringing on an individual’s rights to privacy of electronic communications via equipment owned by the employer, or a government agency.

The California Supreme Court will issue a ruling in the near future on the state’s strict meal break law.

In Brinker v. Superior Court, the restaurant company is arguing about the definition of “providing” a meal break under state law. Brinker argues that while California law requires an employer to “provide” a meal break, that simply means offer the employee the opportunity to take a meal break.

Brinker International is the parent company of a number of popular restaurant chains, including Maggiano’s Little Italy, Chili’s Grill and Bar, and On the Border.

In the past, the California meal break law has been interpreted by the courts to mean that the employer must (more…)

The California Supreme Court recently ruled that employees are not entitled to unlimited time off to care for family members who are ill.

Under the California Kin Care law implemented in 1999, employers that offer accrued sick leave to workers must allow employees to use up to half their annual total to care for a spouse, child, parent or domestic partner who is ill.

Then as now, there is no requirement under the law that any California employer must provide sick leave to employees. However, for employers who choose to offer this benefit, the law addresses how it may be used.

In a rare unanimous ruling, the court found that the California Kin Care law applies only when a company awards a specific amount of sick leave, and that sick leave can be accrued.

The trend among some larger companies is to offer employees unlimited sick leave, especially under certain collective bargaining agreements.

Applauding the victory for California employers, attorney Anthony Oncidi noted that the law was a “perfect example” of a well-meaning law that resulted in abuse by employees. He noted that many California companies had actually reduced or eliminated sick leave policies, due to the previous restrictions.

In the test case involving telephone company AT&T, Inc., the employer provided up to 5 days of paid sick leave for a legitimate illness in any 7-day period. The sick leave period reset each time the employee returned to work, under a collective bargaining agreement. (more…)

Thirty-one U.S. states have laws requiring employers to give workers time off to vote. The penalties for employers who don’t give workers time off to vote can be severe.

In the U.S. territory of Puerto Rico, Election Day is a legal holiday. This includes any day a referendum is held. General elections are legal holidays in the Virgin Islands, and employees who give prior notice must be permitted two hours off, with pay, to vote.

Internationally, in many countries, election day (more…)

A number of employees, who were not disabled in 2008, will legally be considered disabled in 2009, without any change in their condition.

A new law signed by President Bush on September 25, 2008 includes major changes in employment law related to disabled employees. These changes, which are effective January 1, 2009, affect every employer who has an impaired worker, or may have one in the future.

The Americans with Disabilities Act (ADA) Amendments Act of 2008 changes the definition (more…)