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.

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.

More thoughts on Telecommuting

As gas prices continue to spiral upward, telecommuting is an excellent way for a company to lessen the economic impact on employees and to be viewed as a good corporate neighbor by decreasing the carbon footprint of your workforce and traffic congestion.

On a personal note, I could write for days about the benefits of a decreased commute or not having a commute at all. A little over 6 months ago we moved our office. At the time my commute was what I would consider in the average range here in the Puget Sound, about an hour to an hour and fifteen minutes each way. Now I am about 6 miles from home which takes about 10 to 15 minutes, depending on the time of day. What prompted the move. Many things. First, I was spending about a work week commuting each month. Second, technology has reached a stage where it is no longer necessary for me to be in close physical proximity to my clients. With web conferencing, Blackberrys, and email, I can be just as accessible to clients as I was before. With the exception of depositions, my interface with employers was typically at their business location and with employees once in my office for the initial meeting. Traffic in the Puget Sound had already forced us to be more creative and efficient in manner in which we interacted with clients. Third, I am blessed to have some great clients. When I shared my decision with them, they completely endorsed the move. Nothing is without its hiccups. After I made the decision, I was faced with possibly losing one staff person who has been with me for almost 10 years. That was unacceptable. Since I am of the mind that nothing is more valuable that a loyal and hardworking employee, I chose to explore telecommuting with this employee. It has worked wonderfully. Now this employee works remotely and comes to our office one day a week. Sure there are times when I need that person here more than one day, but I make sure it is the exception rather than the rule.

I wish I could say that my decision to move my office was prompted by my incredible ability to forecast future events such as gas prices and a general economic downturn. It wasn’t. These are the things your employees are facing today. The other day, while driving to the office, I was listening to a local radio station. The DJ asked listeners what changes they made to account for the recent increases in gas prices. I was surprised to hear a number of callers state “I quit my job and found one closer to home.” It would be a shame to lose a valued employee just because you did not take the time to think outside the box.

In this post, I will address some of the things that should be considered when you decide to permit telecommuting.

1. Telecommuting is not a reward.

Some positions will lend themselves favorably to telecommuting. Others will not. Additionally, you have a business to run. That means you probably can’t have all your employees out of the office at the same time. As a consequence, you will need to determine which positions qualify for telecommuting and the criteria to be used to select those who will be permitted to telecommute. In plain english that means that if a particular job will permit telecommuting, then all employees, who meet the criteria, should be eligible to participate in the program that option.

2. Have you given consideration to the privacy rights of the employee?

Often employers forget that when an employee telecommutes they are working from their home. As with any position, there may be occasions when you will want to have direct interface with the employee or view their work area to assure they are being as efficient as possible and are not engaged in actions that could compromise confidential information. You should give consideration to how this will be handled.

Some employers address this by creating policies that identify when and under what circumstances, they will perform a home visit. I have several friends that telecommute and I am sure there are occasions when they are working on their laptop wearing very relaxed attire.

Also, if there have been certain problems in the past, such as a sexual harassment report made by an employee against their supervisor, it is not advisable to have that person conduct the home visit. Use common sense and be mindful of common courtesy.

2. Remember wage and hour laws apply?

I have a friend who is always looking for a 2-fer. I will share one of Rod’s Rules with you. “There are no 2-fers in life and there certainly aren’t any in the workplace.” What I mean is that you cannot disregard wage and hour laws because an employee is telecommuting. It is your responsibility to made sure that employees, who are working off site, accurately record their time. The failure to do so could put your company on the wrong end of a wage and hour lawsuit. Time can be tracked manually, or an employee can be required to log into your company server and electronically record their time.

3. What about confidential and proprietary data?

One of the reasons companies have a business location is security. The concept of security has taken on new dimensions in the Internet age. At a minimum, your employees should have a refresher course on what your company considers proprietary and confidential, the steps that must be taken to protect proprietary and confidential data, and the consequences of failing to adhere to your confidentiality policy.

My preference has always been that an employee should only perform work on a company computer with proper encryption. Do not assume that an employee, working from home, will always use a hard wire Internet connection. In many instances they will prefer to use a wireless connection. Raise that issue with your employees and confirm their wireless signal is encrypted. Always consult with your IT department about security measures that should be in place. Finally, consider providing a shredder and requiring all hard copies to be shredded or returned to your business location.

4. Consider the workers compensation implications?

Yes, employees are covered by worker compensation while they are working at home. Any lawyers reading this post, are now creating hypothetical nightmare scenarios. For example: Joe is talking to a customer on his cell phone, while he is in the kitchen making a PB&J sandwich. As he is returning the jelly to the refrigerator, he drops the jar, slips on the jelly, falls on the floor injuring his back, impaling his arm with the cell phone antenna, and, in the process, inconveniencing your customer. Is he covered under workers compensation laws? The answer in Washington, is probably, since our state does not have a PB&J defense. The answer might be different if Joe injured himself while he was not engaged in a work activity. To some employers, the mere thought of this happening is enough to drive them to a point where they insist that an employee only engage in work activities in a specified area of the home. Great idea but, people will be people. Use a good dose of common sense and, in most instances, you will be just fine.

My experience has been that employers spend more time worrying about the potential, yet to happen, worker’s compensation claim than is merited. Instead, employers should spend that time educating employees on the manner in which worker’s compensation claims should be reported and insure their employees understand that all claims should be reported promptly, regardless of where they arise.

5. Have a telecommuting policy and agreement.

Besides salary, some studies have shown the ability to telecommute is the second most important factor in attracting and keeping top talent. Unfortunately, employers tend to jump on the telecommuting bandwagon before they have policies in place that accurately communicate their expectations and the limitations of their telecommuting policy. At a minimum, the telecommuting policy should address work hours and availability, confidentiality and security, equipment to be provided and who will bear the risk of loss in the event that equipment is damaged, how performance will be measured, and the manner in which work hours will be recorded and reported. In addition your policy should reserve, in the employer, the sole discretion to revoke this policy with or without notice. The policy should be signed by your employee.

For those that are new to my Blog, the picture above is my telecommuting picture.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. We encourage you to take your legal problem to a seasoned lawyer who can provide you with her/his opinion on the best course of action to follow.

More Biometrics in the Workplace

Technology has radically changed our perceptions of privacy. This change is evident with the manner we see Gen-Xers and Millenials treat their personal information on MySpace and Facebook. That same level of comfort with technology and openness with private information has entered the workplace.

Employers from McDonalds franchises, to Hilton hotels, to municipalities and to the U.S. Marine Corp are using biometrics to keep track of their employees' time. The information is then automatically sent to the payroll department. From the employer's perspective this can be a valuable tool in that it assures accurate payroll records are kept and, hopefully, minimizes their exposure to wage and hour claims. One employee's reaction, in an article published on www.wcbstv.com, was, "Psychologically, I think it has had a huge impact on the work force here because it is demeaning and because it's a system based on mistrust." (To read more click here)

Although I have read that some employers have taken biometrics to a new level. Apparently, these employers have installed biometric locks on the bathroom doors to monitor the amount of time employees spend in the bathroom. I would love to hear from employees and employers that use biometrics in your workplace and how you feel about it.

The Bottom Line: Technology is going to impact our lives whether we like it or not. The same technology that some find incredibly intrusive also makes it possible for individuals to telecommute and web conference. This is an exciting time in employment law because we are witnesses to a revolution in the workplace. As lawyers and human resources professionals, our world is being rocked as we grapple with new ways to address the issues created by the introduction of technology. I predict this will continue for some time.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.