New Case Protects Privacy of Text Messages

The Ninth Circuit Court of Appeals, in a case entitled Quon v. Arch Wireless, held that text messages stored on the server of a cellular provider cannot be disclosed to an employer subscriber without the consent of the employee that is using the text messaging device.

To employers, this means, that unless you store text messages and instant messages on your company owned server, the employee will be able to assert they are entitled to privacy rights to the content of those text messages. Based on the tenor of this case, employers should consider altering their Internet usage, email, text and voice communications policies to provide that an employee, by using any company owned property or company provided service, consents to a review of any content of any communication including content that is stored by third party vendors. Since consent is being obtained, it would be of benefit to have the employee sign the consent.

To those of my readers that work for governmental agencies, the Quon case also creates a 4th Amendment protection in the content of text messages held on the servers of third party providers. To read this case, click here.

Nothing in this Blog should be consider legal advice or to form an attorney client relationship. In the event you have a legal matter, you are urged to contact an attorney who can address your particular legal matter.

No Match Letter does not give right to fire.

Aramark employs approximately 170,000 people in the United States. In 2003, Aramark received notice from the Social Security Administration (SSA) that 3,300 of its employees did not provide social security numbers that matched those in the SSA database. These type of notices are typically referred to as "no match letters." Forty eight (48) of those employees worked at the Staples' Center sports arena in Los Angeles.

On April 15 and 16 of 2003, Aramark sent a letter to the 48 Staples Center Aramark employees advising them to obtain either a new social security card or to provide verification that an application for a new social security card had been submitted to the SSA. These employees were given 3 days from the date of the letter to accomplish this task. Practically, if one takes into account that it would take one day for the letter to be mailed, the employees had two days or less to comply. Fifteen (15) employees were able to timely get the information requested. Thirty-three (33) employees did not and were fired.

The fired employees took this matter to a union arbitration and won. Aramark appealed and sought intervention by a federal court. The trial court found in Aramark's favor and the union appealed to the 9th Circuit Court of Appeals.

Aramark defended its actions by arguing that the no match letters provided constructive knowledge that the 33 fired employees were illegal workers. Aramark contended it had to fire the employees since, under the Immigration Reform and Control Act of 1986 (IRCA), it would be subject to civil and criminal penalties if had actual or constructive knowledge that the employees had undocumented status. According to Aramark, the receipt of a no-match letter constituted constructive knowledge of the worker's illegal status. As a result, Aramark argued the terminations were justified.

The 9th Circuit Court of Appeals disagreed. It felt the no match letters, by themselves, did not provide constructive notice of undocumented status. In so holding, the court observed that the SSA's stated purpose in mailing no match letters is to alert individuals that social security contributions are not being properly credited due to mismatched records. The SSA also advises employers that they are not to infer that a no match letter is indicative of undocumented status nor are employers to take adverse action merely due to the receipt of a no match letter. Based on this, the court felt that a no match letter was not the type of positive information from the government that provides constructive knowledge to an employer.

From the opinion, it appears that the court was most concerned by the relatively short period of time within which employees had to act (3 days from date of letter). While Aramark permitted the terminated employees to reapply for employment once they obtained proper documentation, the court felt it was unfair to give employees less than 3 days to correct a problem that could take as long as 90 days to resolve. The court expressed concern that, under similar circumstances, an employer could use the receipt of a no match letter to justify a discriminatory termination under the pretext of compliance with IRCA. To bolster its argument that the employees were not give sufficient time to correct the no match, the could observed that under regulations adopted after this case was filed, employers are provided a safe harbor ( a window of immunity from prosecution, under IRCA, based on constructive knowledge) if employees, are given 90 days, after the employer receives a no match letter, to provide necessary verification. Under these regulations if a no match cannot be corrected within that time frame, the employer can qualify for a safe harbor if it submits an I-9 that relies on information other than a social security number to verify the employee's status.

The Bottom Line:

It always comes down to fairness and perceived fairness. While Aramark may have felt its actions were justified by a legitimate concern that criminal and civil penalities for IRCA violations could be imposed, the actions taken were too drastic and did not recognize institutional barriers that could make impossible for some employees to resolve issues created by the no match letters. The actions taken by this employer failed to be fair and failed to create the appearance of fairness.

Nothing in this Blog should be considered to be legal advice or to form an attorney client relationship. The matters discussed in this Blog are general in nature and are not intended to be relied upon by individuals faced with a legal problem. Nothing can substitute for the legal advice of a seasoned legal professional, who can tailor her/his advise to your particular legal cirumstance.

Wednesday's Excuse

on Thursday

Two words that automatically invoke sympathy on the part of anyone:

Root Canal.

11 Things to Think About Before You Fire

Firing an employee is difficult. Many times employers realize that an employee has to be let go, but put off the decision. Some explore other avenues to correct performance or behavior deficits, while others ignore the problem until it reaches a critical stage.

The decision to discharge an employee should be made only after careful reflection. Yes, I understand there are circumstances where the misconduct is so significant that immediate termination is warranted. Those instances tend to be the exception rather than the rule. In most cases, the employer is aware that things are just not working out, but is either distracted with more pressing issues or just does not want to address the problem.

The purpose of this Blog post is to review some areas for consideration before the decision to discharge is made. Ultimately you will have to weigh these considerations and make the call.

1. Have all the pertinent facts been recorded?

Before making a discharge decision, employers should make sure that all facts are recorded accurately. That means an assessment of all documents in the employee’s personnel file and all notes kept by management concerning the employee. Assemble all performance evaluations, attendance and payroll records, customer communications, calendars, discipline and warning records, any records of unsatisfactory performance that have been discussed with the employee and any documents that may be lost during the normal cycle of business.

Once these records are compiled, take the time to read them. All of them. Evaluate them for thoroughness, fairness, and compliance with any published internal processes. Oftentimes, particularly in cases of underachieving employees, a review of the records will reveal that performance evaluations are neutral, there are no records of unsatisfactory performance that were discussed with the employee, and there are no discipline records. This may cause you to reconsider the decision to terminate or, at the very least, assure that, in the future, your management team is more disciplined in its record keeping.

2. Is the decision being made on facts, not inference, suspicion or emotion?

Over the years, I have consulted with numerous employers that were sued as a result of terminating an employee. As I reflect back on these cases, the majority resulted in litigation because the employer allowed rumor or emotion to dictate rather than the facts. While it may feel cathartic to tell an employee, “You’re fired! No, you are double fired, and so are your wife, your children, your neighbors, your pastor, and your grandmother!”, it rarely leads to a productive dialogue. Decisions to terminate that are not grounded in fact, rarely involve a clean parting of ways, and, more often than not, result in attorney or administrative agency involvement.

3. Is the decision maker or decision-making group aware of all critical facts?

If your company is the subject of a lawsuit arising out of a termination, rest assured that a competent attorney will have all the facts at their disposal that relate to their client and the manner in which others within the company have been treated. The failure to communicate critical facts to decision makers creates the perception of bias, unfair processes, and the suspicion that the action taken was not based on legitimate business criteria.

4. Have other options been considered and rejected?

Are there other options that have been used with other employees under similar circumstances? If so, why are they not being used now? Consider whether other options, such as a transfer, demotion or suspension, may be just as effective as a termination. In most cases, termination does not conclude the process. A new employee will have to be hired, trained, and learn your institutional processes. All of this involves the allocation of time, financial, and human resources.

5. Has anyone taken the time to communicate with the employee?

In an age of email, instant messaging, text messaging, and time pressures, face to face communication has become a lost art. Some of the questions that should be asked are:

a. Does the employee fully understand the job requirements and behavior standards?

b. Have you explained where the employee failed to meet job performance or behavior standards?

c. Has the employee received at least one warning of possible dismissal and are you sure the employee understood the warning? Was a record kept of the warning?

6. Has the employee been given sufficient time and opportunity to correct any performance and behavior deficits?

An employee that has been placed on a performance improvement plan should be given the opportunity to perform in accordance with the goals contained in the plan. That means that the goals must be realistic and the employee should have access to internal resources and coaching so they have every opportunity to succeed. Generally speaking, an employee that has been given a fair opportunity to correct their performance and has failed, will understand that discharge is a necessary step.

7. Has the employee’s story been heard?

It is easy to make a decision if all your information comes from one source. That is why it is important to hear the employee’s story and consider the facts from their point of view. Consider whether the employee has personal difficulties, special situations, or any other mitigating factors. By taking this approach, not only will you have a fair process but one that appears fair. In addition, this can help identify any areas where you may have a legal duty to act.

Since terminations are rarely events that are devoid of emotion, it is my preference to ask the employee to provide a written report of events. This assures you have a written record of what you were told and avoids, or at leasts minimizes, future disputes over what you were told.

8. Have you thought about the goose and the gander?

One of my mother’s favorite phrases was, “What is good for the goose, is good for the gander.” Of course, as a young child I had no clue what a gander was but I knew that this meant that she would be fair in every respect. Nevertheless, this old saying is one that employers should keep in the back of their mind when making a termination decision. I can tell you, from having represented employees, that one of the first things an experienced employment lawyer will examine is the manner is which your company has handled similar circumstances. If it turns out that a similarly situated male employee received a suspension while a female employee was terminated for the same conduct, your company may find itself on the receiving end of a gender discrimination lawsuit. Consistency in the application of policies, processes and discipline is a vital component to any termination decision.

9. Are there issues of discrimination or unfair treatment that may need to be addressed before a final decision is made?

Unless you are faced with issues of serious misconduct, make sure that any reports of discrimination, unfair treatment or retaliation have been thoroughly investigated and, preferably, concluded, before going forward with a discharge. On occasion, I have seen employers decide to terminate an employee while there is a pending complaint of harassment or discrimination. Their reasoning has been that the employee is an “at will” employee and, thus, can be terminated at any time and for any reason. While that may be true, courts will look to the temporal relationship between a decision to terminate and a report of harassment or discrimination. The closer in time these two events are, the more likely a judge or jury will conclude that your actions were the product of illegal retaliation rather than a desire to part ways with someone that did not perform adequately.

10. Have you planned how the dismissal will be communicated to the employee?

Once you have decided to part ways with an employee, you will need to consider when to communicate the decision, where to communicate the decision, who will deliver the news, what the employee will be told, how their employment will be concluded and to define the parameters of the exit interview.

a. When and where

Give some thought to timing and privacy. Once an employee is terminated, they should not have to return to work, nor should they have to suffer the embarrassment of having to pack their personal belongings in the presence of their coworkers. A better approach is to select a time and location that will eliminate or minimize the employee’s personal interaction with coworkers. Complete the process, allow the employee to leave, and have their personal belongings delivered via a delivery service.

b. Who

Select someone who is respected and is considered detail oriented so you can be assured that all necessary items will be addressed.

c. What.

It would be nice if a termination could be as simple as a quick, “You’re fired.” While that may work for a mom and pop business, that approach will only create difficulties for larger employers. You should be able to articulate the reason for termination, discuss wage and benefit information, advise when the employee will receive their final paycheck, when they will be paid for any accrued but unused personal time off, have benefits forms available, obtain contact information, arrange for the return of company property in their possession, be prepared to discuss any post employment restrictions, such as non-compete agreements and confidentiality agreements, obtain passwords, and conduct an exit interview. In the event the employee is unable or unwilling to complete an exit interview, make an appropriate notation in their file.

Finally, avoid meaningless statements such as, “I understand how you must feel.” No you don’t and you will never understand how this employee feels. Statements of this nature should be avoided, since they only engender ill feelings on the part of the departing employee.

11. Would a jury-six months later-conclude that the treatment accorded the discharged employee was unquestionably fair?

If, after review of these eleven questions, you continue to believe discharge is the correct decision then proceed with the discharge.

Employer Alert

Washington Employers should be mindful of the following laws that are going into effect.

June 12, 2008

Leave for Military Spouses:

This law applies to all employers, regardless of size and allows 15 days of leave to the spouse of individuals that are on leave from military deployment or before and up to military deployment. To qualify for this leave, an employee must work a minimum of 20 hours per week and provide the employer with notice of their intention to take leave within 5 days of receiving official notice that the employee’s spouse will be on leave or has been called to active duty. For more information on this law, click the following link to access the Department of Labor and Industries website: http://www.lni.wa.gov/WorkplaceRights/files/FamilyLeave/2008-04-01LeaveForMilitarySpouses.pdf

July 1, 2008

Mandatory hands free cell phones:

All drivers in Washington will have to use a hands-free cell phone while driving. Practically, this is a good time for you to adopt a new cell phone policy that addresses text messaging and use of cell phones. For companies that provide cell phones to employees, consider purchasing hands-free devices for use with existing cell phones.

Employers should consider adopting handbook policies that address the issues raised by these laws.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made in this Blog are general in nature and should not be used as a substitute for legal advice that is tailored to your particular circumstance.