Total Articles: 41
What Does The Supreme Court's "GPS Decision" Mean For Private Employers?
The Supreme Court ruled unanimously yesterday that law enforcement must obtain a search warrant before placing a Global Positioning System (GPS) device on a suspect’s vehicle for purposes of tracking the vehicle’s location.
Is It Legal for an Employer to Secretly Track an Employee's Personal Vehicle 24/7 for One Month? Perhaps!
A recent decision by a New York appellate court is one of the first cases to address the surreptitious use of location tracking for employment purposes. The 3-2 split decision highlights the on-going disagreement among judges over the lawful use of Global Positioning Systems (GPS). The New York case is particularly noteworthy because the U.S. Supreme Court in U.S. v. Maynard (argued November 7, 2011) is currently considering virtually the same issue addressed by the New York court, but in the criminal context. Given the increasing use of GPS in the workplace, employers need to understand the legal risks associated with this highly effective management and investigative tool.
Federal Contractors Must Conduct Employee Privacy Training under Proposed Regulation
The Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) have proposed that the Federal Acquisition Regulation (FAR) be amended to require federal contractors to provide privacy training to certain employees or be barred from certain government work. Under the October 14 proposal, an employee who will access government records or records systems or handle personally identifiable information must be given training that addresses the protection of privacy, in accordance with the Privacy Act of 1974, and the handling and safeguarding of personally identifiable information in order for access to such records to be granted or retained. The public has until December 13, 2011, to submit comments to the proposal.
Senator Introduces Bill to Protect Online Personal Information – How Will Your Security Systems Rate?
Senator Richard Blumenthal, a Democrat from Connecticut, introduced the Personal Data Protection and Breach Accountability Act of 2011 on Thursday. The aim of the bill is to protect personal information from online security breaches, as well as punish companies that act carelessly with customers’ information.
Protecting Trade Secrets Through Employee Surveillance: Risky Business
The difference between having a trade secret and not can come down to the steps that a company takes to protect its secrets. The Uniform Trade Secrets Act, a version of which has been adopted in 46 states, provides that information qualifies for trade secret protection only if the owner takes steps that are reasonable under the circumstances to protect its secrecy. Employers commonly take the obvious steps to protect their trade secrets – for example, requiring employees to sign confidentiality agreements or restrictive covenants, implementing electronic controls; and let’s not forget sending demand letters and threatening litigation. These steps are obvious and therefore widely observed. But what about proactive monitoring? If you have a trade secret, you ought to keep an eye and ear out to make sure it’s not being used or disclosed. But, be careful; doing so is not without its risks.
May you view an employee's attorney-client communications if exchanged via work email? (pdf)
The relative secrecy of workplace communications has been in the news
quite a bit recently. A new opinion from the California Court of Appeals
raises the issue again, reminding Delaware employers that e-mail is not
private, especially when your employees are using an e-mail address
supplied by the company.
Supreme Court Spotlights Retaliation, Privacy
Can the federal government require contract employees to disclose their use of illegal drugs? Can states sanction employers that knowingly hire unauthorized aliens? Can employers be held liable for the discriminatory actions of managers who don't make ultimate employment decisions? The U.S. Supreme Court will decide these and other issues in its new term, which began on October 3.
Individual's "Private" Social Networking Sites Are Not Exactly Private, New York Court Rules
In a suit for personal injuries, a New York court has determined that information designated as “private” on a plaintiff’s social networking sites may be accessed by the defendants in pre-trial discovery. Rejecting the plaintiff’s argument that production of this information would violate her right to privacy, Supreme Court Justice Jeffrey Spinner granted the defendants’ discovery request and ordered that the plaintiff consent to the defendants’ access to information posted on her Facebook and MySpace pages. Romano v. Steelcase, Inc., __ Misc. 2d. __, 2010 NY Slip Op. 20388 (Sup. Ct., Suffolk County 2010). This decision provides defense counsel with precedent upon which to argue that information designated as “private” on a plaintiff’s social networking site is relevant and subject to discovery.
Personnel, Investigative and Health Records (pdf).
Whether or not in a quest to civilize the American workplace,
lawmakers have seen fit to protect employee privacy by regulating
employers’ practices with respect to acquiring, retaining, and disclosing
information regarding job applicants and employees. Thus, employers
face restrictions on their license to access, use, and
In Wake Of Court Ruling On Privacy Issue, All Employers Need Employee Tech Policies
In mid-June, for the first time, the U.S. Supreme Court considered whether an employer was within its rights to search employee text messages. The court decided unanimously that the search was reasonable. Although the case focused on a government employer, the decision clearly has ramifications for private businesses as well.
You’re Not Paranoid if Someone Really Is Watching You: Monitoring Employee Use of Social Media.
The use of social media is a rapidly evolving fact of
life in today’s workplace that is changing the ways
people communicate with each other, providing
new ways to spend (and waste) time and new
avenues for employees to get themselves—and
their employers—into trouble. Many employers
today are still struggling with basic questions such
as whether or not to monitor their employees’ use
of social media, deciding what types of social media
should be monitored and wondering what to do
when misuse occurs.
Supreme Court Ruling on Employer Monitoring of Employee E-mails and Social Media.
Aaron Gelb appeared on SpencerConnect blog (part of BlogTalkRadio.com) and discussed the recent Supreme Court decision in City of Ontario (CA) v Quon, on employer monitoring of employee e-mail and social media sites; and its implications for employers. The discussion focused on employer monitoring of Internet usage at work, including risks of ignoring warning signs; how employers monitor social media and the associated pitfalls. Mr. Gelb covered additional implications ranging from state laws protecting off-duty conduct, to retaliation provisions of employment laws. He also briefly talked about what employers should do in terms of policies and procedures.
WORKPLACE PRIVACY AND TEXT MESSAGES: QUON V. ARCH WIRELESS.
With motorcycle gangs, a love triangle, and text messages that were, “to say the least, sexually explicit in nature,” in the words of the district court, Quon v. Arch Wireless, Inc. reads more like a cable television police drama than a typical United States Supreme Court decision. The case received significant press not only because of the salacious facts, but also because many expected the Court to determine the scope of workplace privacy in text messages and other electronic communications.
United States Supreme Court Permits Public Employer's Review Of Employee's Text Messages On Employer Provided Pagers
In the case of City of Ontario California v. Quon, 560 U.S. ___ (2010), the Supreme Court held that a public employer's review of an employee's text messages sent via an employer-provided pager did not violate the Fourth Amendment's prohibition on unreasonable searches and seizures under the circumstances of the case. Though the Court issued a narrow, fact-specific opinion that expressly avoided deciding certain issues, the case provides important lessons for public and private employers in addressing employees' personal use of employer-provided electronic communication devices.
Supreme Court Ruling on Employer Monitoring of Employee E-mails and Social Media.
Aaron Gelb appeared on SpencerConnect blog (part of BlogTalkRadio.com) and discussed the recent Supreme Court decision in City of Ontario (CA) v Quon, on employer monitoring of employee e-mail and social media sites; and its implications for employers. The discussion focused on employer monitoring of Internet usage at work, including risks of ignoring warning signs; how employers monitor social media and the associated pitfalls. Mr. Gelb covered additional implications ranging from state laws protecting off-duty conduct, to retaliation provisions of employment laws. He also briefly talked about what employers should do in terms of policies and procedures.
PUBLIC EMPLOYER’S SEARCH OF TEXT MESSAGES DID NOT VIOLATE FOURTH AMENDMENT.
In a closely-watched case, the United States Supreme Court has ruled that a California city did not violate the Fourth Amendment to the United States Constitution when it searched text messages sent to and from an employee's alphanumeric pager issued by the City's Police Department.
Supreme Court Upholds City's Review of Employees' Text Messages.
In a unanimous decision, the U.S. Supreme Court has held that the City of Ontario did not violate its employees' Fourth Amendment right to be free from unreasonable searches by reviewing the employees' text messages sent on pagers provided by the City. See City of Ontario v. Jeff Quon (June 17, 2010). The Court did not rule on whether the employees had a privacy interest in the text messages, but instead assumed that they did and ruled on the issue of whether the City's search violated the Fourth Amendment. Although the decision involves a government employer, which is subject to the Fourth Amendment's restrictions, private employers may also find the decision instructive because the Court noted that the City's search also would have been reasonable in the private workplace. Thus, employers considering searching their employees' electronic communications should be aware of the factors the Court considered in finding the City's search reasonable.
Supreme Court Recognizes Right Of Public Employers To Search Electronic Communications.
On June 17, 2010 the U. S. Supreme Court unanimously held that a public employer's search of an employee's text messages was reasonable and did not violate the employee's constitutional rights. The decision overturned a ruling by the United States Court of Appeals for the 9th Circuit, which found the employer's search was unreasonable in scope and, therefore, violated the Fourth Amendment of the Constitution which prohibits unreasonable searches and seizures.
In “Sexting” Case, Supreme Court Unanimously Supports Employer’s Search of Employee’s Text Messages, But Refuses to Announce a Rule For All.
The Supreme Court issued a unanimous decision in City of Ontario v. Quon—the first Supreme Court case directly addressing public employees’ privacy rights with respect to communications via employer-issued communications devices such as pagers, cell phones and smart phones. In the 9-0 decision (with two concurring opinions), the Court held that a California city’s review of two months’ worth of text messages on a police officer’s city-issued pager was reasonable where the city was concerned that, among other things, it might be paying for employees’ personal use of those pagers. Notably, the Court took pains to limit its holding to the particular facts of the case, making clear that it wished to avoid defining the contours of employee privacy rights on new technology before the role of the technology in the workplace and society become clear.
It's Unanimous: Supreme Court Permits Search of Employees' Electronic Communications.
In Quon v. City of Ontario, the 9th Circuit held that a California police department’s review of an officer’s text messages was an invasion of the officer’s right to privacy. In a unanimous ruling issued yesterday, the U.S. Supreme Court overturned the Quon decision and ruled that the police department’s review of the provocative text messages sent by the officer to his wife and to his mistress from his employer-issued pager, did not constitute an invasion of the officer’s privacy. (Link to the full opinion in City of Ontario v. Quon).
Supreme Court rules that review of public employee's text messages was not a Constitutional violation.
The U.S. Supreme Court has held that a city police department's search of an employee/police officer’s text messages was reasonable, and did not violate the individual’s Fourth Amendment (“search and seizure”) rights. City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010). While employers have been anticipating the high court’s opinion on whether employees have a reasonable expectation of privacy related to electronic messages, the Supreme Court did not tackle that issue. Instead, the Court assumed that the officer did have a reasonable expectation of privacy in his personal text messages. However, the Court also found that the search was motivated by a legitimate work-related purpose, and was not excessive in scope. Based upon those factors, the Court held that the city's review of the officer's text messages was reasonable and did not violate the employee’s Constitutional Rights. City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010).
The Fig Leaf Precedent Set by Stengart v. Loving Care Agency, Inc.
On March 30, 2010, the New Jersey Supreme Court affirmed the intermediate appellate court's decision in Stengart v. Loving Care Agency, Inc., a widely followed workplace privacy case with national implications. In a unanimous opinion, the Supreme Court held that an employee had a reasonable expectation of privacy in her e-mail communications exchanged with her personal attorney through her web-based, password-protected Yahoo! e-mail account using her employer's computer.
Are You Monitoring Your Employees’ Facebook Pages?
Social-media searches by employers are all the rage when hiring new employees. Every time talk about social media, inevitably the discussion turns to the question, “Can I check a candidate’s Facebook page?” Last week, at my presentation to Delaware SHRM, this was the main topic of conversation—how to lawfully and ethically incorporate social-media searches in your background checks without setting your organization up for lawsuits and liability.
2010 Is Not 1984: Stengart v. Loving Care Agency, Inc. and Cyber Privacy in the Workplace.
"There was of course no way of knowing whether you were being watched at any given moment," explained Winston Smith, the protagonist of George Orwell's masterpiece, 1984. Smith and his fellow employees worked and lived under the assumption that every sound they made was overheard, every utterance recorded, and every movement scrutinized by their employer, a government agency. As an ever-increasing number of employers provide their employees with work-issued computers and Internet access, life appears to be imitating art.
Off-Duty Discussion Groups Can Be Off-Limits to Employers.
There is an inherent tension between an employee's right to privacy and an employer's right to monitor an employee's conduct – especially where the employer believes that the conduct may harm its business or otherwise subject it to liability. This tension has only grown with the rapid expansion of social media and the larger audience with which an employee may share his grievances.
I Always Feel Like, the School Is Watching Me: Electronic Monitoring Gone Wrong?
Electronic monitoring is a very hot topic in employment law these days. But what about other types of electronic monitoring by employers? A case filed in the U.S. District Court for the Eastern District of Pennsylvania alleges a much more unusual sort of electronic monitoring. The suit alleges that Lower Marion School District distributed over 1,800 laptops to its students. So far, so good.
Court OKs Verdict Against Restaurant for Managers' Access of MySpace Account.
Social networking sites today abound. MySpace was created in 2003 and rapidly became a social must-have for high school and college students alike. As a result, these students began to live their lives in an open fashion, posting everything from the mundane to the shock-worthy events of their lives for everyone to view and comment. Accordingly, today's employees may find it hard to differentiate between online life and offline life, since to them it is all merged. This becomes problematic for employers when these employees take to their social networking site, be it MySpace, Facebook, Twitter or a blog, to air frustrations with their job or their company to a mass audience.
U.S. Supreme Court to Review Text Messaging Case.
For the first time, the U.S. Supreme Court will address the rights of employers to review text messages sent by and to employees on employer-provided equipment. See Quon v. Arch Wireless Operating Co., Inc. (9th Cir. 2008), cert. granted, 12/14/09. In Quon, the Ninth Circuit held that the City of Ontario violated a city employee's Fourth Amendment privacy rights when it read the employee's text messages. The messages were sent by the employee (a police officer and member of the city's SWAT team) from a text-messaging pager purchased and provided by the city and were stored by an outside service provider.
U.S. SUPREME COURT TO DECIDE IF EMPLOYERS MAY REVIEW EMPLOYEE TEXT MESSAGES.
The U.S. Supreme Court will decide this term whether employers can review the text messages that employees send on their employer-issued cell phones, Blackberries, or pagers. In the case in question, Quon v. Arch Wireless, the Ninth Circuit U.S. Court of Appeals ruled that the City of Ontario, its Police Department and Police Chief violated an employee's right to privacy by reviewing text messages which were sent to and from an employee's Department-issued pager.
Workplace Privacy: Not Just a Problem for Erin Andrews.
With the disclosure of personal information now rampant on social networking sites like Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don't be fooled: privacy is a hot legal topic with serious implications for employers.
FTC Announces Delay in Implementation of Red Flags Rule.
The Federal Trade Commission (FTC) recently announced that it is postponing implementation of the Red Flags Rule until November 1, 2009, in order to provide businesses with more education about compliance with the Rule. This will include additional resources and guidance to clarify whether businesses are covered by the Rule and, if so, what they must do to comply.
Schools May Be Required to Comply with FTC Rules Aimed at Preventing Identity Theft
Last year the Federal Trade Commission (“FTC”) issued rules aimed at preventing and combating identity fraud (the “Red Flag Rules” or the “Rules”). The Red Flag Rules require “financial institutions” and “creditors” that hold “covered accounts” to develop and implement an identity theft prevention program for new and existing accounts. The FTC has broadly interpreted the terms “creditors” and “covered accounts” to impose compliance on many institutions that are not engaged in extending credit and financing in the traditional sense. Mandatory compliance with the Rules began on Nov. 1, 2008; although the FTC announced that it will delay enforcing them until May 1, 2009, to give creditors and financial institutions additional time to comply with the Rules. In this Alert, we explain why the Red Flag Rules may be applicable to your school.
Data Security Breaches and Privacy Incidents (pdf).
Companies have developed
new ways to create, store,
access, use and LOSE data.
Indeed, since January 2005,
the Privacy Rights
Clearinghouse has reported
that more than 1,000 data
breaches have occurred,
involving more than 220 million
records. In reality, the number
of actual data breaches is much
higher, given that not all
incidents are reported. Notably,
however, in just the fi rst quarter
of 2008, 167 data breaches
have been reported, involving
8.3 MM fi nancial and consumer
records. A data breach or loss
can occur in a variety of ways:
Employee Privacy Update: Review Of Employee Text Messages Deemed Invasion Of Privacy.
Workplace privacy rights can be tricky. Consider the following scenario: A company provides two-way alpha-numeric pagers to employees. The pager service plan allows for transmission of 25,000 characters per month, beyond which an overage fee is assessed.
Review of Employee Text Messages Deemed Invasion of Privacy
Employers may violate constitutional privacy rights by reviewing employee text messages delivered on company-provided equipment, according to a Ninth Circuit Court of Appeals.
Liability for Data Security Breaches Expanding (pdf).
On January 17, 2007, a computer hacker accessed the
computer systems of TJX Companies, Inc., a parent
company of T.J. Maxx, Marshall’s and other retailers,
and stole sensitive and confidential information
communicated during customer transactions dating
back to 2003. Fraudulent use of this stolen information
has thus far been detected in Florida, Georgia,
Louisiana, Hong Kong and Sweden. As a result of
this incident, numerous class actions have been fi led
against TJX on behalf of consumers whose information
was stolen.
Court Finds Employer Has Duty to Third Party to Act on Knowledge that Employee Accessed Pornography at Work (pdf).
A New Jersey appeals court has permitted
a plaintiff to proceed with her negligence
claims against her ex-husband’s employer
based on allegations that the employer knew her
ex-husband was accessing pornography at work
and had a duty to investigate and report this access
to the proper authorities.
Employer's Unauthorized Access To Employee's Website May Violate Federal Statute.
The Ninth Circuit ordered a jury trial where an employer's alleged use of false pretenses to access an employee's website violated the federal Stored Communications Act, which prohibits unauthorized access to an "electronic communication service."
e-trends: more companies are monitoring e-mail.
Brief discussion regarding the increase in employer electronic monitoring of employee e-mail (including some AMA statistics).
workplace privacy: four key principles to follow.
Provides tips for employers to ensure that they do not violate employee privacy rights.
Can We Tape?
Reference site for information on tape recording phone calls.
