CA Supreme Court: LA County Union Entitled to Home Addresses and Phone Numbers of Non-Union Employees

The California Supreme Court in a unanimous opinion addressed employees' privacy rights in the public sector union context. The decision has implications for non-union, private sector employers as well, so read on.

The Service Employees International Union, Local 721, represents Los Angeles County's employees.  However, employees within the union's collective bargaining unit may choose not to join the SEIU as a member. Here's how it works per the CA Supreme Court.

Each of the County‟s bargaining units has a memorandum of understanding (MOU), with SEIU. Most of these MOUs have an agency shop provision that gives County employees four options: (1) join SEIU and pay dues; (2) decline to join and pay a fair share fee; (3) decline to join, object to the fair share fee, and instead pay an agency shop fee; or (4) decline to join, claim a religious exemption, and pay the agency shop fee to a nonreligious, nonlabor charitable fund. A recognized bargaining agent acts on behalf of
all employees in a bargaining unit, whether the employees are union members or not.

Every year, the union sends out a packet of information.  Those who do not respond are deemed "fair share" fee payers.  The vast majority of non-members are "fair share" fee payers.  The "fair share" fee covers activities related to collective bargaining, but does not include contributions for the union's non-bargaining related activities, such as political activity.

The County historically did not disclose non-members' addresses and phone numbers. Instead, the union would send the packets to a third party, the LA County Employee Relations Commission, for distribution to the non-members.

In 2006, the union sought to amend the collective bargaining agreements to require the County to turn over the addresses and phone numbers of non-members. After the County refused, the union filed an administrative charge with the County ERC. The ERC held the County's refusal was an unfair labor practice.  The County filed a writ proceeding in Superior Court, which held that the non-members' privacy interests would have to yield to the union's need to discharge its duties as bargaining representatives of the non-members.

The Court of Appeal also held the union was entitled to the information, but for different reasons than the superior court.  The appellate court decided that the non-members had a right to notice and the opportunity to opt-out of disclosure, similar to the rights courts have fashioned in the context of class action litigation.

The California Supreme Court accepted the County's request for review.  First, the Court noted that the National Labor Relations Act does not apply to the County's union relationship.  The County's relationship is governed by state law, the MMBA.  LA County's ERCOM (rather than the NLRB in the private sector or the PERB that covers state workers and counties other than LA) enforces the MMBA.  I know, lots of acronyms.  Bottom line, though, is that PERB interpretations of the MMBA and the NLRB's decisions under the NLRA are persuasive authority.

The Court analyzed the PERB and NLRA decisions as well as the statute and other authorities. The Court concluded that the union is entitled to the names and addresses of the employees it represents, even when the employees do not sign up as "members" of the union and pay only the agency fee.

The Court then considered whether California's right to privacy outweighed the union's right to the information. The Court first decided that applicants and employees had a reasonable expectation that employers would keep personal contact information private.  The Court noted:

A job applicant who provides personal information to a prospective employer can reasonably expect that the employer will not divulge the information outside the entity except in very limited circumstances. For example, various laws require employers to disclose information to governmental agencies, such as the Internal Revenue Service and Social Security Administration, and disclosure may also be necessary for banks or insurance companies to provide employee benefits. (See Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561 (Belaire-West).) But beyond these required disclosures, it is reasonable for employees to expect that their home contact information will remain private "in light of employers‟ usual confidentiality customs and practices."

This conclusion is important to private sector, non-union employers, because it means that employees should be notified and should consent to disclosure to third parties, such as customers or vendors.  These notices and consents usually occur when employees sign up for benefits and the like.  Employee handbooks can contain a policy notifying employees that sometimes names and addresses will be disclosed to customers, vendors, etc. if that is a concern.

The Court next decided that disclosure of names and addresses amounted to a serious intrusion, another essential element of an invasion of privacy claim.

So, the County having established a reasonable expectation of privacy and a serious intrusion, the union had to show its legitimate interest in the information outweighed the employees' privacy interest.  The Court agreed that the union's interest was sufficiently important to justify the intrusion. 

The Court noted that employees and the County could put into place procedural safeguards themselves that would limit or preclude disclosure of non-members' information such as via collective bargaining: 
 

Employers like the County remain free to bargain for a notice and opt-out procedure in negotiating collective bargaining agreements with employee unions. Public employers can also draft employment contracts that will notify employees their home contact information is subject to disclosure to the union and permit employees to request nondisclosure. Finally, nothing in the relevant statutes or case law appears to prohibit agencies such as PERB or ERCOM from developing notice and opt-out procedures that would allow employees to preserve the confidentiality of their home addresses and telephone numbers

The decision is LA County v. Los Angeles County Employee Relations Commission and the opinion is here.

DGV






 

Court of Appeal Explains Invasion of Privacy Claim in California

Ignat worked for a Yum! Brands restaurant. She had bi-polar disorder.  While on a leave, her supervisor allegedly disclosed her condition to other employees, verbally.  Ignat sued for invasion of privacy, based on the common law claim "public disclosure of private facts."

The court of appeal reversed summary judgment.  The court explained that, contrary to the trial court's ruling, a claim for invasion of privacy based on disclosure of private facts is viable even if the disclosure is verbal as opposed to written:

We conclude that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort‟s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public – in essence, to define his public persona. (See Briscoe, supra, 4 Cal.3d at p. 534; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198-199.) While this restriction may have made sense in the 1890‟s – when no one dreamed of talk radio or confessional television – it certainly makes no sense now. Private facts can be just as widely disclosed – if not more so – through oral media as through written ones.

Because the trial court found no written dissemination of the plaintiff's condition, it ruled she could not prevail. The appellate court sent the case back to the trial court for re-evaluation.

However, the court also explained that the common law tort is not established based on mere disclosure to a few individuals. The court also distinguished between a claim for invasion of privacy based on the California constitution, and a common law claim.

Our Supreme Court regards the two legal theories as providing separate, albeit related, ways to insure privacy. The constitutional variety focuses on institutional record-keeping and does not require a wide dissemination of private information. (See Hill, supra, 7 Cal.4th at pp. 35-37 [elements of constitutional privacy violation].) Liability for the common-law tort requires publicity; disclosure to a few people in limited circumstances does not violate the right. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 840; Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 700; Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805.) Moreover, the facts disclosed must be offensive or objectionable to a reasonable person. (See, e.g., Shulman, supra, 18 Cal.4th at p. 214.) If they are not, there is no liability. (See, e.g., Johnson v. Harcourt, Brace, Jovanovich, Inc., supra, 43 Cal.App.3d at p. 892 [facts disclosed not "„so offensive as to shock the community‟s notions of decency.‟ [Citation.]"]; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748.) The constitutional right, however, may be violated if any private record that was supposed to be kept confidential is disclosed, for example, a college transcript. (Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 827.)

Based on the papers filed in the case, Ignat was limited to the common law claim, and therefore will have to prove widespread dissemination.

This case underscores the need to limit communications about the nature of an employee's disability or other sensitive private facts that would be "so offensive as to shock the community" if disclosed.

The case is Ignat v. Yum Brands, Inc. and the opinion is here.

Court of Appeal on Discovery of Co-Workers' Files in Discrimination Cases

The appellate courts rarely get involved in discovery issues. It's usually up to the trial courts and parties to fight about what is relevant, what is a privacy issue, etc. So, guidance from the Court of Appeal is a welcome development.

Timothy Joyce sued his former employer, Life Technologies Corporation (LTC), for age discrimination and retaliation. In essence, Life Technologies merged with Joyce's former employer and he was laid off. He alleged that he was on a hit-list of over 40 employees, and that he was set up for termination, among other things.

In litigation, Joyce sought through interrogatories data about co-workers including:

(a) The names of all employees terminated during a two-year period, November 1, 2008 to June 28, 2010. 

(b) The department each worked for when terminated. 

(c) The date of termination. 

(d) The age of each at termination. 

(e) The reason for termination. 

(f) Whether severance benefits were offered.

(g) Whether offered severance benefits were accepted. 

(h) A description of any offered severance benefits. 

(i) A detailed explanation of reasons for any failure to offer severance benefits. 

(j) The identity (including name, address and telephone number) of all former Applied Biosystems employees still employed by LTC after the RIF. 

(k) Whether the terminated employees were former employees of Appelera or Applied Biosystems.

LTC and Joyce became involved in a discovery dispute, which resulted in a trial court order granting access to the information, but requiring the parties to first send a letter to employees notifying them of the proposed disclosure. the information would be disclosed unless the employees at issue filed a motion for protective order.  The court of appeal noted that there was no provision for protection of the information and no "opt-out" other than via a formal motion. 

The court first noted that statistical information could be relevant to a disparate impact claim and that the RIF provided for the requisite facially neutral practice.  Joyce also wanted the data for a disparate treatment claim, i.e., intentional discrimination.  The court of appeal pointed out that statistical evidence is far less important in disparate treatment cases:

Statistical evidence may also be utilized in a disparate treatment case. However, because discriminatory intent must be shown in such a case, statistical evidence must meet a more exacting standard. “[T]o create an inference of intentional discrimination, statistics must demonstrate a significant disparity and must eliminate nondiscriminatory reasons for the apparent disparity. Aragon [v. Republic Silver State Disposal Inc. (9th Cir. 2002) 292 F.3d 654, 663 (Aragon) (finding that statistics unsupported by other probative evidence of discrimination was insufficient to show pretext and to demonstrate discrimination); see also Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1283 (holding that to raise a triable issue of fact regarding pretext based solely on statistical evidence, the statistics „must show a stark pattern of discrimination unexplainable on grounds other than age‟); United States v. Ironworkers Local 86 (9th Cir. 1971) 443 F.2d 544, 551, fn. omitted] . . . (holding that use of statistical evidence „is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn.‟).” (Gratch v. Nicholson (N.D.Ca. 2005, No. C04-03028 JSW) 2005 WL 2290315, *4.) 

Thus, “[a]lthough use of statistics is permissible [in a disparate treatment case], statistical evidence „rarely suffices to rebut an employer‟s legitimate, nondiscriminatory rationale for its decision to dismiss an individual employee.‟ Aragon[, supra, at p. 663, fn. 6.] . . . [T]his is so because „in disparate treatment cases, the central focus is less on whether a pattern of discrimination existed [at the company] and more how a particular individual was treated and why. As such, statistical evidence of a company‟s general hiring patterns, although relevant, carries less probative weight than it does in a disparate impact case.‟ [Ibid., citing LeBlanc v. Great Amer. Ins. Co. (1st Cir. 1993) 6 F.3d 836, 848-49.]” (Gratch v. Nicholson, supra, at p. *4, fn. 4.)

The court therefore found that at least some of the information sought would be arguably relevant to Joyce's claims. But the court then turned to privacy analysis.  

The court held that Joyce had made no showing that the identities, addresses and other private information of co-workers, particularly those who were not contended to be witnesses to any discriminatory conduct against Joyce, were sufficiently "needed" to overcome the individuals' privacy interests.  The court distinguished the "class action" discovery cases because the identities of class members are really the identities of potential witnesses, and because of the specific issues that arise in class certification proceedings.

Significantly, the court pointed out that there was no reason why statistics could not be developed without disclosure of individuals' personal information, absent a showing that LTC would provide unreliable data without giving out names and addresses, etc.  Joyce also failed to adequately demonstrate the need for the breadth of information he sought. 

The court also criticized the court's order because it placed too high a burden on objecting employees.  The court noted that if the information had been subpoenaed, a simple objection by the third party could stop the disclosure, rather than a formal motion.  Also, the court would have permitted the plaintiff to send out a notice to third parties, thereby requiring disclosure of names and addresses before the employees had a chance to object.

Finally, the trial court did not put any safeguards in place regarding the use or custody of the needed information via a suitable protective order.

Disputes such as these are common in employment law.  Therefore, when "meeting and conferring," lawyers may use this case to limit disclosure of private personnel information absent a sufficient showing of need, and ensure that private information is kept that way during and after litigation.

The opinion is Life Technologies Corporation v. Superior Court and the opinion is here.  

Court of Appeal: Union Representing County Employees Entitled to Contact Information of Non-Union Members

To facilitate union organizing and collective bargaining, the union representing LA county employees wanted the county to disclose the names and addresses of employees who opted not to be represented by the union. These employees paid an "agency" fee, lower than union dues, but were not full fledged members.

Reviewing the case, the court of appeal decided that the county must disclose the information, but first must give the employees the right to "opt out" of the disclosure, similar to the law that applies in class action discovery:

Pioneer Electronics because there is no underlying presumption these non-member County employees would want their personal information disclosed, as might be the case in class-action litigation in which the disclosure might lead to affirmative relief or the vindication of statutory rights. Rather, the opposite is true. As in Valley Bank, employees would assume the personal information they provided to their employer as a condition of employment would not be further disseminated. While there may be a parallel between union representation and class representation, we cannot assume these non-member County employees would perceive a benefit to having their personal information disclosed to the Union. These County employees, whether by inaction or action, are not Union members, and they have a right not to join the Union. The non-members‟ failure to voluntarily provide their personal information to the Union might indicate their desire not to join the Union, indifference, or simply a desire not to be bothered at home by unwanted mail and telephone calls.

we hold non-member County employees are entitled to notice and an opportunity to object to the disclosure of their personal information. The privacy concerns here are more significant than in

The court rejected the union's argument it was entitled to the information regardless of the employees' objection.

The case is County of LA v. LA County Employee Relations Commission and the opinion is here.

U.S. Supreme Court Upholds Background Check Questions

The U.S. Supreme Court ducked deciding whether the U.S. Constitution protects individuals' right to privacy in personal information.  Instead, they "assumed" that there was such a protection and then decided that NASA's background questions were constitutional no matter what.  This provoked a concurrence in the judgment only from Justice Scalia (and another, short one from Justice Thomas), as both of them wanted the court to decide the constitution contains no such right.

The employment law issue here is whether NASA's questions were appropriate issues to ask applicants and employees. Most federal government employees are subjected to a standard background check. But contract employees were only recently added, following the 9/11 attacks.  NASA employed a number of contract employees at its Jet Propulsion Lab, and had to implement the checks for current employees, some of whom were employed for many years.

The questions included standard background information, but then asked about drug use, sales, etc., and asked for explanations if the employee admitted to involvement with illegal drugs.  After the employee answered the questions, the agency sent out questionnaires to landlords and references on a standard form. That standard form contains a number of questions to which plaintiffs objected:

the form asks if the reference has "any reason to question" the employee’s "honesty or trustworthiness." Id., at 97. It also asks if the reference knows of any "adverse information" concerning the employ. If "yes" is checked for any of these categories, the form calls for an explanation in the space below. ... That space is also available for providing "additional information" ("derogatory" or "favorable") that may bear on "suitability for government employment or a security clearance." Ibid.

The Ninth Circuit held that the request for an explanation by the employee about drug treatment or counseling did not serve a legitimate interest sufficient to overcome the employee's privacy rights. The court of appeals also decided that the reference forms contained open ended questions that infringed on privacy rights without sufficient linkage to the job.

On review, the Supreme Court decided that these questions do not infringe upon privacy rights even if they were protected by the Constitution:

The questions challenged by respondents are part of a standard employment background check of thesort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as
*** [W]e conclude that the chal-lenged portions of both SF–85 and Form 42 consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal opera-tions. See Engquist, 553 U. S., at 598–599; Whalen, 429 U. S., at 597–598. As to SF–85, the only part of the formchallenged here is its request for information about “any treatment or counseling received” for illegal-drug use within the previous year. The “treatment or counseling”question, however, must be considered in context. It is a followup to SF–85’s inquiry into whether the employee has“used, possessed, supplied, or manufactured illegal drugs” during the past year. The Government has good reason toask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have itsprojects staffed by reliable, law-abiding persons who will“‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons havethese characteristics.Amici Curiae 2 (hereinafter CDIA Brief) ("[M]ore than 88% of U. S.companies . . . perform background checks on their employees"). The Government itself has been conducting employment investigations since the earliest days of the Republic.

The court's decision is important to private sector employers looking to justify personal questions and investigative consumer reports. The court recognized the legitimacy of these issues, including questions about drug use.  That should help private-sector and public employers with invasion of privacy claims related to drug testing and background investigations.

Of course the court did not deal with the issue of "adverse impact" discrimination claims here. But the defense to adverse impact is "job related and consistent with business necessity." Language in this opinion should help estasblish this defense.

The opinion is NASA v. Nelson and it is here.
 DGV

Court of Appeal: No Attorney-Client Privilege for Employee's Emails to Lawyer

Gina Holmes worked for Petrovich Development Co. LLC as assistant to the CEO, Paul Petrovich.  She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their respective feelings about her pregnancy. Although it appeared that they had cleared the air, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, etc.

The trial court summarily dismissed the harassment, discrimination and retaliation claims. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive.

The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail.  Holmes' retaliation claim failed too, because of the lack of an adverse action.

That left claims for intentional infliction of emotional distress and invasion of privacy, which were tried to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation.  The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email.

The court of appeal agreed that Holmes waived the privilege Here is the money quote:

Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)


When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.

Lawyers for employees obviously should take note and advise employees not to use monitored email systems. Employers should ensure their email policies are comprehensive and clear regarding employees' expectations of privacy.

The case is Holmes v. Petrovich Development Company LLC and the opinion is here.

U.S. Supreme Court Partially Punts in Electronic Monitoring Case

We posted about Quon v. Arch Wireless here when it was just a Ninth Circuit case. There, the court of appeals held that a deputy sheriff had a reasonable expectation of privacy in his text messages sent on an employer-provided PDA.

On review, the U.S. Supreme Court ducked on the reasonable expectation of privacy issue that the courts below focussed on. The Supreme Court is concerned that the use of electronic data in the workplace and in society is still in flux and it does not want to pass judgment too soon on how privacy is maintained and expected in electronic communications. So we won't know about what policies are valid, whether a supervisor's oral statement could modify a written policy, and whether employers can destroy an expectation of privacy merely by furnishing the equipment. Another day, perhaps.

Instead, the court did hold that the City of Ontario was within its rights to look at Quon's text messages to see if he was using too much bandwidth for personal use. The court assumed there was a sufficient expectation of privacy without deciding the issue, and simply held that the search was "reasonable."

Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of JUSTICE SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.

Bottom line - this case would have more relevance to private sector employers in California if the Court had addressed the "reasonable expectation of privacy" issue. However, the court's discussion also concludes that employee monitoring is "regarded as reasonable and normal in the private-employer context."

For public sector employers, this case is significant because it clarifies the standard for the government-as-employer performing workplace monitoring even where employees have a reasonable expectation of privacy.

The case is City of Ontario v. Quon and the opinion is here.

U.S. Supremes to Review Quon v. Arch Wireless

We posted about Quon v. Arch Wireless here. This was the 9th Circuit's opinion holding a county liable for auditing deputy sheriffs' text messages. The U.S. Supreme Court granted review of that case today (article here.) The court will have a decision out by June. We of course will keep track of it for you. But this could be a way for the court to issue a key privacy ruling about electronic communications. We shall see...

DGV

CA Supreme Court: No Invasion of Privacy

The Supreme Court unanimously held that an employer did not invade the privacy of employees when it set up video surveillance in the employees' offices. We first blogged about Hernandez v. Hillsides here.

So, Hernandez and Lopez worked at Hillsides, a residential treatment center for children. The administration determined that someone was using one of the computers to view porn at night. The computer was in a private office - used by Lopez and Hernandez during the day. Administration did not suspect Lopez or Hernandez, but rather one of the night time workers.

Management set up a hidden camera in Lopez/Hernandez's office, which was activated after they left, and which was turned off in the morning. The camera never taped Lopez or Hernandez. On one occasion, the boss forgot to turn the camera off in the morning, but it did not tape either Plaintiff. They did not catch the person who was viewing the porn either.

Despite the seemingly insignificant injuries, Lopez and Hernandez sued Hillsides for invading their privacy. The trial court threw out the case, but the court of appeal reinstated it.

The Supreme Court on review first held that setting up a secret camera was enough to constitute an "intrusion" - an element of the invasion of privacy tort. Here are some quotes on this point:

defendants [are] a private employer accused of installing electronic equipment that gave it the capacity to secretly watch and record employee activities behind closed doors in an office to which the general public had limited access. As we discuss later with respect to the “offensiveness” element of plaintiffs' claim, an employer may have sound reasons for monitoring the workplace, and an intrusion upon the employee's reasonable privacy expectations may not be egregious or actionable under the particular circumstances. However, on the threshold question whether such expectations were infringed, decisional law suggests that is the case here.* * *

Finding an intrusion, the Court took into consideration that this was a private office, that cameras were surreptitious, and case law and statutes regarding monitoring:

Plaintiffs plausibly claim that Hillsides provided an enclosed office with a door that could be shut and locked, and window blinds that could be drawn, to allow the occupants to obtain some measure of refuge, to focus on their work, and to escape visual and aural interruptions from other sources, including their employer. Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related. As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken “doggie” flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday. Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access. . . .

Regarding another relevant factor in Sanders, supra, 20 Cal.4th 907, 923, the “means of intrusion,” employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer. As noted, in assessing social norms in this regard, we may look at both the “common law” and “statutory enactment.” (Hill, supra, 7 Cal.4th 1, 36.)

Now, a policy permitting such monitoring might have killed the employees' expectation of privacy and, therefore, the intrusion. But there was no such policy in place:

plaintiffs cannot plausibly be found to have received warning that they would be subjected to the risk of such surveillance, or to have agreed to it in advance. We have said that notice of and consent to an impending intrusion can “inhibit reasonable expectations of privacy.” (Hill, supra, 7 Cal.4th 1, 36; accord, Sheehan, supra, 45 Cal.4th 992, 1000-1001.) Such factors also can “ „ “limit [an] intrusion upon personal dignity” ‟ ” by providing an opportunity for persons to regulate their conduct while being monitored. (Hill, supra, at p. 36.) Here, however, the evidence shows that no one at Hillsides told plaintiffs that someone had used Lopez‟s computer to access pornographic Web sites. Nor were they told that Hitchcock planned to install surveillance equipment inside their office to catch the perpetrator on television and videotape.

Moreover, nothing in Hillsides' written computer policy mentioned or even alluded to the latter scenario. As noted earlier, the version in effect at the relevant time made clear that any monitoring and recording of employee activity, and any resulting diminution in reasonable privacy expectations, were limited to “use of Company computers” in the form of “e-mail” messages, electronic “files,” and “web site” data. Foster performed this administrative function when he used the network server to produce the list of pornographic Web sites accessed in both the computer laboratory and Lopez‟s office, and showed such computer-generated data to Hitchcock. There is no evidence that employees like plaintiffs had any indication that Hillsides would take the next drastic step and use cameras and recording devices to view and videotape employees sitting at their desks and computer workstations, or moving around their offices within camera range.

In sum, the undisputed evidence seems clearly to support the first of two basic elements we have identified as necessary to establish a violation of privacy as alleged in plaintiffs‟ complaint. Defendants secretly installed a hidden video camera that was both operable and operating (electricity-wise), and that could be made to monitor and record activities inside plaintiffs‟ office, at will, by anyone who plugged in the receptors, and who had access to the remote location in which both the receptors and recording equipment were located. The workplace policy, that by means within the computer system itself, plaintiffs would be monitored about the pattern and use of Web sites visited, to prevent abuse of Hillsides‟ computer system, is distinguishable from and does not necessarily create a social norm that in order to advance that same interest, a camera would be placed inside their office, and would be aimed toward a computer workstation to capture all human activity occurring there. Plaintiffs had no reasonable expectation that their employer would intrude so tangibly into their semi-private office

Next, the court considered whether the intrusion was sufficiently "serious" or "offensive" to constitute a tort. Here is where the employer won. The court considered factors such as the degree of the intrusion, the workplace setting, and the employer's justification. The Court concluded that the intrusion was justified and was slight under the circumstances. As such, the court of appeal had it wrong.

Finally, the court held that the employer does not have to prove there is no "less intrusive alternative" to prevail.

The key takeaway is that that notice to employees regarding employer procedures will defeat these claims in most cases by destroying the reasonable expectation of privacy.

The case is Hernandez v. Hillsides and the opinion is here.

Court of Appeal: No Privacy on Myspace

Myspace, Facebook, Linkedin, etc. are fertile sources of information about employees and job applicants. The phenomenon of otherwise private individuals airing out their grievances, sharing personal information, etc. continues unabated. The phenomenon of the same individuals' shock and surprise that people actually read their stuff and hold it against them continues as well.

In a non-employment matter, the Court of Appeal addressed whether an essay on myspace was private such that republishing it in a newspaper without the author's permission constituted an invasion of privacy. Umm no.

Moreno was from the small town of Coalinga. After she left town, she wrote an essay about her disdain for her hometown. She neglected to consider that folks who remained in Coalinga might get offended. Her principal forwarded the posting to the local newspaper, which published it as a Letter to the Editor. And of course, although Moreno's last name is not on her myspace page, the principal helpfully supplied it.

Now Moreno also forgot that her family still lived in Coalinga, and operated a small business there. The fans of Coalinga were miffed by Moreno's letter, and drove the family out of business and out of town. She chose to sue the newspaper and principal rather than herself. No word whether her family sued her.

The Court of Appeal, upholding the trial court, held that when you post on myspace, it's not "private." As such there is no invasion of "privacy" when you use the posted information or disclose it to others. Without a private fact, there is no tort of invasion of privacy.

Interestingly, the Court of Appeal also held, albeit in an unpublished portion of the decision, that Ms. Moreno could proceed against the defendants for intentional infliction of emotional distress, possibly because of the fact that the principal intentionally supplied the posting to the newspaper out of spite? No clue. Simply reading the information and relying on it on the job may or may not supply the requisite "outrageous conduct" required for IIED. My bet is" not."

So, at least based on this case, if you put your private information out on the INtRaw3Bs, your employer is not invading your privacy by reading it. The case is Moreno v. Hanford Sentinel and the opinion is here.

DGV

Ninth Circuit Invalidates Certain Pre-Employment Inquiries

The Ninth Circuit has issued a few opinions lately in which the court has struck down pre-employment inquiries such as applicant drug testing, medical examinations, and the like. The court recently held that NASA's practice of investigating contractors' employees was too intrusive and, therefore, violated the employees' "information privacy" rights under the Constitution. The court, however, held that the questionnaires and background checks were not "searches" under the Fourth Amendment.

The persons at issue were employees of Caltech, working under a contract for NASA at a federal facility. Of note, these employees were not exposed to sensitive information and were considered "low risk" by NASA.

NASA has conducted the same federal background check since its inception for its own employees, and recently expanded the investigation to contractors. The federal investigation includes questionnaires sent to persons identified by the applicant, and asks for a broad and open-ended amount of information about the applicant's employment history, education, habits, behaviors, financial responsibility, etc.

The court found that parts of the questionnaire were too broad and, therefore, violated the applicants' rights to informational privacy because they were not sufficiently narrow to justify the intrusion.

Interestingly, the court held that questionnaires concerning past illegal drug use were NOT a violation, because they were narrowly tailored to meet the government's legitimate interest in a drug-free workplace. But, the questions asking about counseling for prior drug use were not narrowly tailored and, therefore, a violation of the applicants' privacy rights. Recall that in the recent case of Lanier v. City of Woodburn, the Ninth Circuit invalidated a county's applicant drug testing program.

This case is called Nelson v. NASA and the opinion is here.

Ninth Circuit: No Right to Search Text Messages Stored by Third Party

The headlines blared: "Employers can't look at your email or text messages." Unfortunately for you merchants of NSFW* content on employers' systems, not so fast. The case, Quon v. Arch Wireless, is not as broad as the papers suggest.

In Quon. the Ontario, CA sheriff noted excessive text message traffic over the department's system. Under the department's policy, an employee would get 25,000 characters as part of the plan and would have to pay for overage.

But the Sheriff wanted to see if the employees were using the system for non-work related matters. So, he contacted Arch Wireless, which provides the text message service and stores archived messages for the county. (That is, the county used Arch Wireless as its cell provider for text messages). Having received the owner's request, Arch turned over the text messages to the Sheriff.

The problem is that Arch was precluded from doing so by the Stored Communications Act. Arch, as an archiver of messages, could not turn over the messages without a court order or the consent of both parties to the communication.

The Sheriff also argued that its policy destroyed any expectation of privacy. But there was testimony from management that the announced policy was not to "audit" messages if the employee paid the overage. The promise not to inspect created an expectation of privacy.

Bottom line though - if the employer stores its own emails, this case does not apply. When this case does not apply, if you want to ensure you have access to employees' electronic communications, you need a tight policy that destroys any "reasonable expectation of privacy."

On the other hand, if a third party is the repository of your business' emails, texts, third party voice mails.... this case may be a shift in the law regarding when employers are permitted to see these communications. Therefore, employers may wish to consider bringing these IT functions "in house" or giving up the right to monitor such communications at will.

Read Quon v. Arch Wireless here.

DGV

* "Not safe for work." Yes, I am hip, kthanksbye..