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Category Archives: Employment Privacy

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Posted in Employment Privacy

Supreme Court Defers on Constitutional Right to Information Privacy; Scalia Predicts Increased Litigation

On January 19, the Supreme Court decided NASA v. Nelson, a case brought by NASA contractors alleging that questions asked by the federal agency in a background check violated their constitutional right to information privacy — i.e., a constitutional privacy interest in the government “avoiding the disclosure of personal matters” recognized in a pair of 1977 cases, Whalen v. Roe and Nixon v. Administrator of General Services. At issue were questions that asked whether the contractors received “any treatment or counseling” regarding illegal drug use within the previous year (as a follow up to a question regarding whether they used, possessed, supplied or manufactured illegal drugs within that year), and questions directed toward references for information bearing on “suitability for government employment or security clearance,” including “adverse information” about an the contractor’s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”

Posted in Employment Privacy

Supreme Court Finds Public Employer’s Search Motivated By Legitimate Work-Related Purposes Did Not Violate Fourth Amendment Protections Against Unreasonable Searches

Yesterday, the Supreme Court reversed a decision of the Ninth Circuit in City of Ontario v. Quon and unanimously decided in favor of a public employer that had engaged in a limited administrative/accounting review of employee text messages. In this blog entry, we explain how the Court avoided deciding what is a reasonable expectation of privacy in electronic devices; we observe how a dormant federal case allowing a private employer search of e-mail despite an expectation of privacy may have renewed vitality; but in light of a recent New Jersey Supreme Court case, we remind private employers of the importance of a clear electronic communications policy (to limit or defeat expectations of privacy), of training and of purpose-limited searches.

Posted in Employment Privacy

New Jersey Ruling in Favor of Employee’s E-Mail Privilege Claim Suggests Amendments to Corporate Monitoring Policies

The New Jersey Supreme Court’s recent decision in Stengart v. Loving Care Agency upheld attorney-client privilege protection for personal web-based e-mails sent by an employee planning to sue her employer, notwithstanding a broad electronic communications monitoring policy by the employer. The case, though limited jurisdictionally to New Jersey, may be followed elsewhere, and suggests additions to company monitoring policies, which we set forth in this blog entry.

Posted in Employment Privacy

Supreme Court to Decide Reasonable Expectation of Privacy in Text Messages on Employer-Provided Devices

On December 14, the Supreme Court granted certiorari in City of Ontario v. Quon, a case that could set the parameters for the rights of employees in the workplace to privacy in their electronic communications, or just as easily be narrowly resolved on constitutional grounds with little implications for private employers. Quon, an officer with the […]