Fourth Amendment Does Not Violate Police-Department's Search of Employee Text Messages

In a previous blog article posted January 8, 2010, Does the Fourth Amendment Protect Text Messages?, we reported that the United States Supreme Court granted a petition for certiorari in City of Ontario v. Quon, a Ninth Circuit Court of Appeals case in which the Circuit Court held that Police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the City.

On June 17, 2010, the United States Supreme Court reversed the Ninth Circuit Court of Appeals' decision and held that the City of Ontario did not violate Quon's Fourth Amendment rights by conducting a search of his text messages. In its decision, the Court stopped short of deciding whether Quon actually had a reasonable expectation of privacy in his text messages.

To keep its holding narrow and avoid far-reaching implications, the Court assumed Quon had a privacy expectation and that the Fourth Amendment applied. Despite this assumption, the Court held that Quon's privacy rights were not violated because the search was justified by a legitimate work-related reason, and the search was within scope. The City's work-related reason was to determine whether the character limit in its wireless contract was adequate to meet its needs when the City noted repeated overages. Specifically, the City wanted to know if officers were being forced to pay out of their own pockets for work-related expenses, or if the City was paying for extensive personal communications. With respect to Quon, the search was not found to be excessive because his message transcripts were deemed an efficient and expedient way to determine which factor caused his overages. Although Quon occasionally exceeded his monthly allotment, transcripts were only reviewed for two months and all messages sent while off-duty were redacted.

The Court discussed the City of Ontario's policy that employees had no expectation of privacy in messages transmitted on department-owned pagers, however, it also stated that a determination would need to be made whether that policy was overridden by management when arrangements were made for officers to pay for their overages rather than having their text messages audited. The Court did not answer this question because the case was resolved the case on other grounds. Although private employers are not bound by the Fourth Amendment, this is a reminder to all employers that employment policies, even well-drafted ones, can be undermined and even become ineffective when not properly enforced.

Author: Ann Eberts


New Notice Required Under Department of Labor Final Rule

On January 30, 2009, President Obama signed Executive Order 13496, which required certain federal contractors and subcontractors to provide notice to employees of their rights to organize and bargain collectively under the National Labor Relations Act (NLRA). On May 20, 2010, the U.S. Department of Labor (DOL) issued its final rule regarding the new workplace notice requirement. The new posting rule becomes effective on June 19, 2010.

The DOL final rule requires that federal agencies must include a clause mandating the posting of the employee labor law notice in most contracts for an amount in excess of $100,000 solicited on or after June 19th. Once the clause is included in the government contract, the contractor must also include that clause in each subcontract for an amount in excess of $10,000. The requirement also extends to subcontractors entering into subcontracts in excess of $10,000. However, contractors and subcontractors excluded from the definition of “employer” under the NLRA (e.g., carriers subject to the Railway Labor Act, states and political subdivisions) are not subject to the rule.

The required notice states the rights of employees to:
  • organize a union
  • form, join, or assist a union
  • bargain collectively through a representative of their choosing
  • discuss terms and conditions of employment with coworkers or a union
  • take action to improve working conditions by raising complaints with their employer or seeking help from a union
  • strike and picket

  • refrain from participating in any of these activities
The notice also provides examples of prohibited conduct by employers and by unions. Finally, the notice indicates that employees should contact the National Labor Relations Board if they believe their rights or the rights of others have been violated.

The notice should be placed conspicuously in and around plants and offices so that it is prominent and readily seen by employees, preferably where other notices to employees are posted.

Author: Ryan Bonina