Sunday, June 20, 2010

Quon - Scalia's Warning for Employers

Unless you've been living in a cave (a cave that doesn't have access to Lawffice Space), you already know that the Supreme Court decided City of Ontario v. Quon last week. The Court found a public employer's search of its employee's text messages on an employer-issued pager was Constitutional under the circumstances. The search was A-OK because it was for a "legitimate work-related purpose" and not excessive in scope.

But in a concurring opinion, Justice Antonin Scalia provides a helpful warning to employers. Call it part of his Nino Cares program. He's worried that litigants will use some excess commentary (dicta as the insiders call it) from the majority opinion as a,
"basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of electronic media."
In other words, employers should assess:
  • Policies impacting employee privacy;
  • How those policies are communicated to the employees (in writing, with an employee-signed acknowledgment form wouldn't hurt);
  • Authorization for supervisors to essentially "overrule" written policies (supervisors should know the policies and conduct business in accordance with them - "Going Rogue" may sell a bajillion copies of books, but it's not something that helps employers enforce written policies); and
  • Keep up with emerging technologies (think: cell phones, gadgets, social media, etc.) in terms of awareness and current policies.
It's not every day employers get free advice from Justice Scalia, employers may wish to heed his warning.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.