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| Volume III, Issue 2 |
Newsletter July 2010 |
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Employment U.S. Supreme Court Issues Landmark Decision Addressing an Employee’s Right to Privacy in the Workplace. The United States Supreme Court in City of Ontario v. Quon recently reversed a Ninth Circuit holding and determined that the City of Ontario Police Department did not violate an officer’s Fourth Amendment rights by accessing and reading text messages sent and received on his work pager. The department had launched a review of pager usage after several officers exceeded their allotted monthly messaging limits, and discovered many personal and sexually explicit messages sent and received by an officer. After being disciplined by the department, the officer sued, alleging that as a government agency the department had violated his Fourth Amendment and privacy rights. While the Supreme Court noted the ever-increasing importance of digital communication in the workplace, and the potential for changing norms in the privacy for such devices, the Court ultimately held that because the City’s review of the text messages was “motivated by a legitimate work-related purpose” and was not “excessive in scope,” the review was reasonable and thus did not violate the officer’s constitutional rights. PRACTICAL TIP: In order to prevent privacy issues such as these from occurring in the workplace, verify that all employees have easy access to computer and technology usage policies, and ensure that employees are aware of what level of privacy they can expect when using employer-provided technology. Further, if the need to review employees’ emails or other communications arises, ensure that the review is narrow in scope, and tied to a specific and articulated work-related purpose. California Court of Appeal Clarifies Standards in Confusing “mixed-motive” Bias Cases. An ever-increasing number of wrongful termination cases involve claims alleging that even if there were legitimate reasons for an employee’s termination, the true underlying reason for termination was unlawful discrimination. In Harris v. City of Santa Monica, the California Court of Appeal recently clarified what evidence an employee must present in order to succeed in bringing a mixed-motive bias claim. In that case, a probationary city bus driver accumulated 50 ‘demerit points’ and a below par performance review after multiple unexplained absences and two minor bus accidents. The demerit points and performance review were sufficient grounds for termination under City policies, but during the review process the employee notified her supervisor that she was pregnant. After the conclusion of the review, the employee was terminated based on her demerit points and negative performance. The employee sued, claiming that she was unlawfully discriminated against based on her recent pregnancy. The trial court instructed the jury that if it determined that the pregnancy was a motive in the employee’s termination, then the City was liable for discrimination. The jury found for the plaintiff, and the City appealed. On appeal, the appellate court held that the judge should have instructed the jury that if it found the employee’s poor performance alone would have been a legitimate basis for termination, the City was not liable for discrimination, unless the employee could show that the given reason was merely a pretext. The court went on to note that the nature of at will employment necessitated that employers be given the freedom to terminate employees for any non-discriminatory reason. The California Supreme Court has recently granted review of the decision in the Harris case, and will likely issue an opinion in mid-2011. PRACTICAL TIP: It is vital to keep timely and detailed performance evaluations for every employee, including documenting any and all employment issues that arise. In the current economic climate, many employees appear to be turning to the courts even when terminated for legitimate reasons. By keeping timely and detailed employee performance records, employers will be able to more adequately defend themselves. School Law Federal Appellate Court Determines That Attorney-Client Privilege Extends to Documents Created By Law Firm During Internal School Investigation. The Seventh Circuit Court of Appeals in Sandra T.E. v. South Berwyn School District recently ruled that where a law firm was retained to investigate a school district’s response to allegations of teacher-student sexual abuse, the attorney-client privilege applied to documents created during the investigation. In Sandra, the Court held that, as long as a law firm conducts an investigation in connection with providing legal advice to its client, the documents and advice it gives remains confidential. For example, the Court determined that the firm’s interview notes, reports, and letters were protected by the attorney-client privilege because they were undertaken as part of a fact-finding investigation initiated to provide legal advice. The Court also emphasized the fact that an engagement letter had been prepared stating that the district retained the firm to provide legal services and that in interviews with district employees, attorneys informed interviewees that they represented only the interests of the district, and that the district would ultimately control whether the interviews remained privileged. In sum, the court stated that “[the firm’s] investigation of the factual circumstances surrounding the [potential lawsuit] was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice.” PRACTICAL TIP: Even though the Seventh Circuit does not cover California, the principle is still applicable. A school district facing a potential civil suit may wish to retain a law firm to investigate the scope and extent of allegations made against it because the result of the investigation will likely still fall under the protection of the attorney-client privilege, thereby remaining confidential. Ninth Circuit Rules That Term ‘under God’ in Pledge of Allegiance Does Not Violate Establishment Clause. The Ninth Circuit Court of Appeals (which covers California) in Newdow v. Rio Linda Union School District recently ruled that the term ‘under God’ in the Pledge of Allegiance does not violate the Establishment Clause of the Constitution, even in the public school context. Despite the plaintiff’s claims that the words ‘under God’ improperly imposed religion on his grade school daughter, the Ninth Circuit determined that the Pledge of Allegiance was one of allegiance to our Republic, not of allegiance to God or to any other religion, and thus held that not every mention of God or religion by the government or at the government’s direction violates the Establishment Clause of the Constitution. Accordingly, the Ninth Circuit held that the district policy of voluntary recitation of the Pledge was permitted because the intent was to inspire patriotism, which has consistently been deemed a “legitimate secular purpose.” PRACTICAL TIP: So long as district policies continue to allow individual students to opt out of standing and reciting the Pledge of Allegiance at the start of the school day, such morning recitals of the Pledge remain consistent with state and federal law. Just be sure that the policy is adequately and properly communicated to students and staff. |
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