Posted by marykeating on January 4, 2010 under Workplace privacy | 
The Supreme Court will decide whether a police officer in California has the right to prevent his bosses from reviewing text messages he sent from a department-issued pager. 
Like many employers, the City of Ontario has its employees sign agreements acknowledging that they may not use its computers for personal matters, and have no expectation of privacy in any messages sent. When the pagers were issued, the department stated that the email policy covered the pagers, too. But a different message was conveyed by the department, which told Sergeant Quon and his peers that they could use the pagers for 25,000 characters per month; they would be charged for messages exceeding that limit. Quon exceeded the message limit and paid for the overage.
The department decided that the text volume may indicate that some employees were wasting time, and ordered an audit, including transcripts, of the messages. Quon and another officer objected when the department released the transcripts, showing that Quon sent sexually explicit messages to his wife and another woman. The Ninth Circuit Court of Appeals ruled that the employees had a reasonable expectation that the messages would remain private, given the department’s earlier treatment of pager use.
The Supreme Court may choose to issue a narrow ruling, limited to employers with policies like that of Ontario. On the other hand, it may broaden its discussion of employee privacy rights in general, or government employees as a group. Part of the lower court’s decision related to the Fourth Amendment to the constitution, covering unreasonable searches and seizures. The Fourth Amendment applies to federal and state governments, not to private employers.
Ordinarily decisions in cases accepted at this point are issued by the end of the term, in June. The case is Quon v. City of Ontario. It’s discussed at the SCOTUS blog, whose wiki also has links to the briefs.
Posted by marykeating on October 9, 2009 under Discrimination in employment, Workplace privacy |
Employees these days are flooded with applications. So they have to weed out people somehow. Once you get past the poorly done cover letter, the resume with typos, the lack of relevant experience, there may still be a pile of possibly good candidates. What’s an employer to do?
Well, some are demanding from applicants the right to run credit reports, and to use the results to make decisions. An employer who obtains a credit report without a valid reason or authorization is asking for trouble under the Fair Credit Reporting Act. But what about the ones who have permission?
Bad credit can be a very loose proxy for poor judgment or irresponsibility, of course, but the credit report itself seldom gives a realistic portrayal of the circumstances that explain the credit card load, the repossessed automobile, or the lawsuits by the hospital. Divorces, job loss, and medical catastrophes cause more bankruptcies than anything else, so it stands to reason that they are behind other bad ratings in a credit report. Employers relying too heavily on credit reports will deprive themselves of good workers. They may also, inadvertently or not, exclude disproportionate numbers of women, minorities, and young workers.
Some employers have a reasonable basis for requiring a credit report. Companies with contracts requiring national security clearances may have to be careful of the employee with too much debt, implying a weakness for espionage. (Or is that all left behind with the cold war era?) Employees hired to handle cash or bank accounts may warrant additional scrutiny if their credit reports indicate late payments in their personal lives, or huge debt loads. But as a tool for analyzing which applicant for a job or a promotion would do the job well, the personal credit report is a dull ax, and should be used only with some refining, such as giving the employee the right to explain thoroughly. In fact, under the FCRA, an employee has the right to know that the report’s findings were used against him or her. It is hard to discover if that requirement was ignored, though.
