When Does an Employee Lose His Right to Privacy of Mobile Phone Calls?

Employees seeking privacy in the use of smart phones and laptops at work are advised to use only their own equipment and to pay their own usage bills.  If the phone is provided by the employer and the account paid by the employer, the likelihood of a court finding no legal right of privacy is high.  If the employer provides the phone, pays the bill, and issues a clear written policy that all information on or through the phone is subject to company inspection, then it is virtually certain that personal use of the device will be without privacy protection.     Holmes v. Petrovich Dev. Co. (2011) 191 Cal.App.4^th 1047.

The situation is less clear where the phone is owned by the employee, but is used for both personal and business purposes, and the employer reimburses the employee all or part of the bill.   In the absence of an employer’s required privacy waiver, I do not believe that paying for business calls entitles the employer full access to an employee’s private mobile phone communications.  However, there is nothing that prevents an employee from knowingly waiving his privacy interests in mobile phone data stored on the phone.  If the employee signs an acknowledgement and waiver of such privacy rights after being informed of Company policy, potentially everything on the phone becomes accessible to employer inspection.  Employees therefore should take seriously any such waivers and acknowledgments they may be required to sign as a condition of receiving payment of the mobile phone bills.  TGB Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4^th 433. 

But even in the face of a broad waiver of privacy rights, I question the validity of such waivers if they are obtained as conditions of receiving reimbursement for the costs of business calls made on employee-owned mobile devices.  The duty to reimburse employee costs is statutory and unconditional and is itself a matter of “public policy” under Labor Code Section 2802.   The more reasoned approach is that the employer is to be restricted in viewing data that pertains only to company business.   

What about the situation however where  the employer has no express policy concerning privacy of mobile phone data, but reimburses the employee either a fixed amount or an “actual cost” amount for business related phone calls on the employee’s mobile phone?  Assume further of course, that the employee uses the phone for both personal and business calls, and perhaps even has multiple applications on the phone which are for his personal use only.  These apps can include abundant “private” information, such as journal entries, GPS tracking histories, music and photos.  In my opinion, the employer has no right to seize the phone, and no right to seize the data on the phone.  At best, the employer might succeed in obtaining a subpoena for the business data only, or reasonably require the employee as a condition of continuing employment, to disclose only the business call or business app data. 

 The U.S. Supreme Court in City of Ontario v. Quon (2010) 130 S. Ct. 2619, held against employee ‘s claim of privacy rights in that case, but also declined to make a blanket rule for when data was without privacy protection on employer issued digital communications equipment. In Quon, a public employer issued mobile devices to its officers and paid the full cost of the devices.   The police department wanted to determine if the usage plan they had selected was too low, after incurring overage charges under their current plans.  The service provider provided the Department with transcripts of usage.  The Department discovered Quon had used the device for personal sexually explicit text messaging, and disciplined him.  The Court assumed Quon had a reasonable privacy interest in the messages (without having to address the issue head on), but also held that the facts of the situation justified the search of the text messages as part of a reasonable business function.  In skirting the privacy expectation issue, the court wrote that the technology of mobile communication devices was advancing so quickly that a blanket privacy rule would be premature.

Where does that leave us?  Employees still have privacy rights, and merely that they use a personal communication device to sometimes conduct business does not open the door for employer inspection of all data on the phone.  Even if an employer required an employee to waive privacy rights to private communications on the employee’s own device, the employee’s resistance to such a demand would likely be justified, and if the employer fired the employee for his resistance, the employer would be liable for “wrongful termination in violation of public policy.”  The “public policy” is found in both the U.S. and California Constitutions guaranteeing the right of personal privacy.  

A Special Christmas Present From My New 83 Year Old Friend.

She was frail, a bit humped over, but very fashionably dressed for a Christmas Eve morning stroll along the cliffs overlooking Dana Point harbor.


Her lipstick was bright red, and her make-up subdued and tasteful.  She wore her age well, her youthful soul informing her smile, eyes, and speech.  She sat down at a bench looking out over the ocean.  I stood some distance away, aware of this little figure who walked slowly into my view.  “Good morning” she said brightly.  “Good morning!” I replied as brightly.  It was Christmas eve, and a time to be friendly. I walked over to her, and stood there a while, speaking of the beauty of the day.  “I come here often,” she said, “It make’s me feel good to be here.”  I love to converse with older people, because I love learning their stories.  I knew this woman had a story.  She was too alive, to energized, and too engaging not to have adventures to tell.  Little did I know the story was ongoing, and wonderful.


I will spare you of my journalistic inquiries.  I am an incorrible interrogator. It is part of my training as a lawyer, but also, just a penchant for being nosey about things that interest me.   I learned that my little humped over acquantance was Sonia Neil, originally from Buenos Aires, Argentina.  She had memories of growing up along the coast, always close to the ocean, and never happy away from the sea.  She shared wonderful memories of childhood, and  mother who loved her. She married, and a daughter was born.  Her daughter wished to pursue the performing arts, and so Sonia left everthing behind to give her that opportunity in the United States.  They managed to first locate in Houston, where there were some Argentine friends.   Eventually, she came to live in San Clemente California.


She mentioned that she had given up her own dreams to give her daughter that opportunity.  “What dreams were those?” I asked.  “I sing.” she stated with a calm confidence. “I have always sung.”  I was stunned.  She spoke as one fully present, and excited.  “Tell me more.”  “Oh, I recently gave a recital.”  “Who arranged the recital?” I asked.  “I did!” Sonia responded, a little indignant.  “Did you sing in Spanish or English?”  I asked, assuming as an Argentinian, she might prefer Spanish.  “Italian.”  she answered.  “I sing opera.” she answered.  “You presently sing opera?!”  “Of course.  The woman who hosted my recital wants to be my manager.”  She paused.  The moment was perfect.  A light warm breeze wafted our skin.  The sun felt good--an incredible Christmas Eve day in Calfornia.


After a moment, she added that she studied under a master at the El Teatro Colon in Buenos Aires, or as she called it for my uneducated sake, “the famous “Colon Theater.”  I confessed my ignorance.  It is like the “Metropolitan Opera” at the Kennedy Center in New York, she graciously explained.  Life it seemed had taken her away from her dream to support the dreams of others, but she continued singing.  For a time she lived in Houston, she said, and would sing with accompaniment of retired members of the Houston Symphony Orchestra each month in the large concert hall of the symphony.  She sang because singing was who she was.


I was about ask her to sing for me, and hesitated.  The time and place was not ideal.  To my delight, she did something possibly better.  She wore a little purse about her neck, one possible made by or for her especially.  She opened  a little zipper, perhaps two inches long, and pulled from the purse a little square of paper, and upon it was handprinted her name and “YouTube.”  “My nephew recorded me.” She explained. “I don’t really know anything about the internet.”  “Have you seen the YouTube videos made of you?”  I asked.  “Oh yes.”  she answered.  “Are you pleased with the results?”  “Very much.” she replied without hesitation.  I placed the little paper in my billfold carefully.  We said goodbye, and I drove to the nearest coffee house to gain access to an internet host.


So it is, I am sitting here at the Coffee Bean in Dana Point, writing this story of Sonia Neil.  I could continue with my story, but what a waste when I can give you her gift directly.
 
Here is the link to Sonia’s singing, who at age 83 demonstrates that youth is a very relative term.


Sonia Neil on YouTube.

Stopping Middle School Bullies: Principals Must Wake Up to the Principles of Civil Rights!

A society that fails to protect its children from other children has two problems:   the child as aggressor and the child as victim. 

When my white middle class daughter was routinely harassed by out of control middle school boys during her formative years, I was outraged at the passive attitude of the school administrators.  My daughter was not alone in this gender based harassment.  At the time, schools were not liable for the sexual harassment of its students by other students.  That has changed in CA where the school fails to take preventative and corrective measures.

But a deeper problem persists:  bullying.  It is a practice that destroys fragile and vulnerable young people or wounds them for life just when they most need to feel worthy and accepted for their intrinsic value as God’s children, not just as students in the system.  We have all read of the student who commits suicide due to unbearable bullying, or who “goes over the edge” and begins a rampage of killing in a local school.  Those extreme situations are relatively rare, but there are millions of kids I suspect who will have flashbacks all their lives of the cruelty they endured in school.  Now, multiply that harm by the broken and lost relationships of these kids as they go through adulthood.  The social costs are enormous. 

In May 2011, the U.S. Commission on Civil Rights convened its first-ever hearing on the issue of harassment and violence against Lesbian, Gay, Bisexual and Transgender students.  A new study by Dr. Caitlin Ryan the Family Acceptance Project, published in the Journal of School Health, provides data showing the scope of injury caused by bullying of these particular children.   I would like to see the outcome of the Commission’s work, when looking at the study, to recommend strong school policies for the prevention and correction of bullyism.  Teachers especially need to be trained to seek out and report bullies on behalf of the victims.  Administrators, and especially School Principals, must be held accountable for promptly investigating and correcting incidents of bullyism and harassment.  The victims are selected by bullies for the very reason that they are unlikely to report the abuse.  Strong measures to discipline bullies with public reproof and with expulsion are also needed.   If the schools don’t comply, they should face the civil liability for failure to meet presumptive standards of protection.  Very important is that children who are courageous enough to complain be protected from retaliation by the “clique” that initially attacked them. 

I recently heard a man I deeply respect, a Professor of Philosophy at USC, Dallas Willard, state that our educational system is virtually useless:  it stuffs kids with information, but fails to teach sound values.  I agree that information is not knowledge, and knowledge is not wisdom or virtue.  I am not as confident schools alone can get that job done.  Parents are critical too.  But there is a short term emergency:  children are being brutalized by other children.  Until the matter of virtue, honor and dignity become part of the social memes of a particular school, action is needed now to stop kids from attacking other kids. 

 Feds Sue School Adminstrators For Failing to Stop Harassment 

The Case for Class Actions Against Age Discrimination in a Depressed Economy

The term “holiday” derives from its medieval source of “holy day.”  “Holy” itself refers in its origin to “set apart” and “perfect.”  These “holidays” are for many neither perfect nor holy.  These “happy holidays” for many are days of increased sadness, disappointment, and perhaps serious, life-threatening depression.  

 

It seems there are two intersecting forces that meet during these holidays:  the extreme expectations of joy and connection in our family and friendships and the fact that as many as 1 our of 5 of us are unemployed.  Some of us have been without gainful, steady employment for one, two, or more years.  

 

I and psychologists have this in common in our practices:  we are seeing a significant number of clients who are chronically unemployed. Economic depression and emotional depression are close cousins.  We are each seeing persons over 40 in particular who are likely being excluded as re-employment candidates because of age discrimination.  [Emotional Impact Link].

 

There is, in my opinion, a major gap in the enforcement mechanism of the federal and state agencies concerning this problem of age discrimination in a down economy.  I read or hear of virtually nothing to indicate the agencies are allocating more of their resources to investigating and enforcing the laws against age discrimination in hiring.  Yet, the anecdotal evidence is that older workers are hurting disporportionately in this depressed economy.   How many of us know of workers over 40 or 50 who have been unemployed for over 2 years?  How many such 20 or 30 somethings do we know in that same situation?  News articles confirm the stories of older workers who feel they are being bypassed for younger candidates.   

ADA: Accommodation of Work; Not Accommodation of Qualifications to Work

If a disability has delayed an individual's ability to obtain needed certification to work as a teacher, does the employer have a duty to accommodate the employee to allow him to obtain the certification?  The Nintch Circuit Court of Appeals Court has ruled "No."  


[Johnson v. Board of Trustees (9th Cir. 12-08-11) 2011 DJDAR 17670.]


The teacher in question, Johnson, suffered from major depressive disorder, bipolar.  She had five years to obtain renewal of her teacher certifcation by taking required classes.  She had to complete 6 semester hours of classwork to qualify.  She sought a provisional certificate from the School Board just before the five year period elapsed. 

Johnson and the School District agreed that Johnson had the ability to teach at the time of her application for provisional certification.  Johnson claimed her disability prevented her from getting the certification on schedule, and so the District had a duty of accommodating her by a provisional certification that would allow her more time to obtain full certification.  The District claimed it had not duty to accommodate her efforts to complete the classes because she had delayed unnecessarily over five years without requesting an extension of time.  The District did not renew Johnson's contract because, it claimed, she had failed in a duty of the contract:  to maintain her full certification. 

Looking to the Code of Federal Regulations, the Court found no requirement to accommodate the "job pre-requiste" process.  The accommodation duty was only applicable to work the employee was qualified to perform.  The obtaining of the qualifications, such as passing examinations for licensure, are not within the duty to accommodate. 

This decision is not appliable to the California Fair Employment and Housing Act, but may be a source of guidance and argument for a court taking a conservative view of the accommodation duty.  However, Calfornia diability accommodation law has generally followed more expansive and liberal employee protections than federal ADA law and federal courts interpreting the ADA.  

A heart a day

A heart a day

Can't think of anything more socially dangerous than a heartless lawyer, especially in my practice of employment law representing hurt people. This creative site is built on a theme of hearts--all in all not a bad theme for life itself, whatever your work may be. And . . . February, a cold but not heartless month, is approaching.


"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

An Employee Rights Lawyer Suggests Ways to Put Him Out of Business

Here is my comment to the linked article:  "Ten Things Only Bad Managers Say" from Business Week Magazine:

This is a well crafted article based on real experience.  I see hundreds of performance reviews and manager emails in my practice, and I attest to the accuracy of "bad manager" profile.  Good managers practice a combination of "truth" and "grace."  When an employee is not meeting a standard of performance, they communicate the need for improvement, but  they also communicate a sincere desire to help the employee reach a higher level of skill and competence.  They communicate implicitly that they respect and like the employee while also addressing the particular performance issue.  They "back-up" that attitude with real encouragement and cooperation in assisting the employee to make the improvement happen.  

Some recommendations:  Use personality screening tests before promoting managers.  Do a background check with persons the manager has managed at other companies.  Get feedback from current co-workers about a candidate's relational skills.  Use 360 degree anonymous feedback after hiring or promotion to anticipate problems.  In interviews, question candidates with hypothetical work situations to see how they would likely respond.  Set up measures for the manager on relational abilities at work.   If the manager is open to change, and is self-aware of relational problems, provide him with a performance coach and additional training.  But if a manager is sucking the life out of his team by authoritarian, fear-based tactics, remove him from the position before he causes more harm.

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Lawyer-Poet, Nay Poet-Lawyer Wallace Stevens: of "Moral Law" & "The Opposing Law"

A High-Toned Old Christian Woman

Poetry is the supreme fiction, madame. 
Take the moral law and make a nave of it 
And from the nave build haunted heaven. Thus, 
The conscience is converted into palms, 
Like windy citherns hankering for hymns. 
We agree in principle. That's clear. But take 
The opposing law and make a peristyle, 
And from the peristyle project a masque 
Beyond the planets. Thus, our bawdiness, 
Unpurged by epitaph, indulged at last, 
Is equally converted into palms, 
Squiggling like saxophones. And palm for palm, 
Madame, we are where we began. Allow, 
Therefore, that in the planetary scene 
Your disaffected flagellants, well-stuffed, 
Smacking their muzzy bellies in parade, 
Proud of such novelties of the sublime, 
Such tink and tank and tunk-a-tunk-tunk, 
May, merely may, madame, whip from themselves 
A jovial hullabaloo among the spheres. 
This will make widows wince. But fictive things 
Wink as they will. Wink most when widows wince.

Wallace Stevens

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