California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

In re Roman Catholic Archbishop of Portland, 2011 WL 5304130 (9th Cir. 2011)

Documents that were produced in discovery and filed in the bankruptcy court contained allegations that Fathers "M" and "D" (two priests who were not parties to the Portland Archdiocese's bankruptcy case) had sexually abused children. The bankruptcy court held that the discovery documents could be disclosed to the public because the public's interest in disclosure outweighed the priests' privacy interests and that the documents filed in court could be disclosed to the public because they did not contain "scandalous" allegations for purposes of 11 U.S.C. § 107(b). The district court affirmed, but the Ninth Circuit reversed in part, holding that the bankruptcy court should have redacted the name of one of the two priests (who is 88 years old and has been retired since 1989). However, the Court upheld disclosure of the information relating to the other priest, who is not retired and who continues to work as a priest in his community, where his clerical duties may bring him into contact with children.

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The U.S. Supreme Court handed down two important employment law decisions in January, embarking upon a year that includes a host of notable cases that onlookers anticipate could bring about significant changes and clarifications in labor and employment law. 

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 City of Ontario v. Quon, 560 U.S. ___, 2010 WL 2400087 (2010)

The City of Ontario’s Computer Usage, Internet and E-mail Policy provides that use of the city’s computers and other electronic equipment, networks, etc., is limited to city-related business, that access is not confidential and “users should have no expectation of privacy or confidentiality when using these resources.” Sergeant Jeff Quon, a member of the city’s SWAT team, signed an employee acknowledgement of the Policy and attended a meeting in which he and others were informed that text messages were considered to be the same as e-mail and could be audited by the department. However, Quon was later told that the content of his text messages would not be audited so long as he paid the department for any charges associated with texting more than 25,000 characters in a billing cycle. When a lieutenant in the department “grew weary” of being a bill collector for officers who exceeded the 25,000 character limit, the department contacted Arch Wireless and requested transcripts of the text messages. After the department received the transcripts from Arch, internal affairs conducted an investigation to determine “if someone was wasting city time not doing work when they should be.” The investigation revealed that many of Quon’s messages were personal in nature and sexually explicit.

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Today, in a decision authored by Justice Anthony Kennedy, the U.S. Supreme Court unanimously overturned a decision by the U.S. Court of Appeals for the Ninth Circuit in a case involving an employee’s assertion that a government employer had violated the Fourth Amendment by unreasonably obtaining and reviewing personal text messages sent and received on employer-issued pagers.  Justices Stevens and Scalia issued concurring opinions.

City of Ontario v. Quon (08-1332)

• Full text of decision (pdf)
• Supreme Court docket information

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People v. Tabb, 88 Cal. Rptr. 3d 789 (Cal. Ct. App. 2009)

Edward Nathaniel Tabb, Sr. was convicted by a jury for grand theft of his employer’s property. Tabb worked as a “runner or helper for pipe fitters” at BAE Systems. Over a period of approximately two months, Tabb brought new or used ship parts to A to Z Auto Dismantling, a recycling company, and sold them as scrap metal. During this period, Tabb’s daily recycling income increased from approximately $10 to $100 per day. A to Z’s office manager kept a log of all of the items Tabb brought in, and she calculated that A to Z had paid Tabb more than $31,000 for the materials he brought in for recycling. The jury convicted Tabb, and the Court of Appeal affirmed, concluding that the evidence at trial “amply warrants an inference that the items Tabb brought to A to Z were materials he stole from BAE.” Cf. People v. Scott, 2009 WL 397966 (Cal. S. Ct. 2009) (all employees on the premises have constructive possession of the employer’s property and thus may be separate victims of a robbery of the employer’s business); United States v. SDI Future Health, Inc., 553 F.3d 1246 (9th Cir. 2009) (an employee who challenges the government’s search of workplace areas must generally show some personal connection to the places searched and the materials seized).

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Quon v. Arch Wireless Operating Co., 2008 WL 2440559 (9th Cir. June 18, 2008)

Arch Wireless contracted to provide wireless text-messaging services for the City of Ontario, including its police department. Pursuant to the city’s general Computer Usage, Internet and E-mail Policy, the use of the city’s computers and other electronic equipment, networks, etc., was limited to city-related business, access was not confidential and “users should have no expectation of privacy or confidentiality when using these resources.” Sergeant Jeff Quon, a member of the city’s SWAT team, signed an employee acknowledgement of the Policy; he also attended a meeting in which he and others were informed that text messages were considered to be the same as e-mail and could be audited by the department. Quon was later told that the content of his text messages would not be audited so long as he paid the department for any charges associated with texting more than 25,000 characters in a billing cycle. When a lieutenant in the department “grew weary” of being a bill collector for officers who exceeded the 25,000 character limit, the department contacted Arch Wireless and requested transcripts of the text messages. After the department received the transcripts from Arch, an investigation was conducted by internal affairs to determine “if someone was wasting city time not doing work when they should be.” The investigation revealed that many of Quon’s messages were personal in nature and were sexually explicit. Quon (and those with whom he had texted) sued Arch for violation of the Stored Communications Act (“SCA”) and the Ontario Police Department and its chief for violating the Fourth Amendment and the privacy protection provision of the California Constitution. The Ninth Circuit held that Arch violated the SCA by turning over the text transcripts to the city, which was only a “subscriber” and not “an addressee or intended recipient of such communication.” The Court further determined that Quon and those with whom he texted had a reasonable expectation of privacy in the text messages given the informal policy and “operational reality” of the department. Although the chief of police was shielded from liability by qualified immunity, the city and department were not. See also Nelson v. NASA, 2008 WL 2468884 (9th Cir. June 20, 2008) (“low-risk” NASA contract employees were entitled to injunction precluding in-depth background investigations).
 

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