Big Brother Has Even Bigger Eyes.

GPS:  GROWING PRIVACY SCARE.

GPS is ubiquitous.  I use it to track my walks, runs, and bike rides.  It records my pace, total distance, altitude variations, and produces a graphic map of my completed route. I can take iPhone pictures along my route and tag points on the route to coincide with the picture.   I synchronize the data with a website that records all my events in an quickly accessible data base.  Of course, GPS is a new necessity for many people, increasing from about 1/2 million to 15 million in just 4 years.  All late model vehicles are equipped with the units.  

So, what does this have to do with employment law?   Maybe the answer will come to you as you reflect on some micromanager in your career.  Maybe you can still hear one of his or her most used questions:  Where were you?  or Where have you been?  GPS provides the answer.  

Employment law is of course concerned about privacy in the work place.  The right of privacy turns on the general idea of a person reasonably expecting to be left alone or unmonitored in certain situations.   The answer is never "one size fits all".  Privacy is unique to each environment and each person's role in that environment.  In the work environment, the employer can define the limits of your expectations of privacy by disclosing to you that your desk drawers or locker may be searched, or that your email may be monitored, or that internet usage is to be for business purposes only.  Most information workers are aware that their employer has an interest in protecting that information from dissemination, and that security precautions are installed to curtail theft or misuse of data.   The Sarbanes-Oxley Act for example requires precautions to be designed, installed, and policed to prevent insiders from profiteering from sensitive market information. 

Before GPS, I remember the favorite ploy of employers looking for a reason to terminate an employee was to conduct an audit of his employment expense sheets.  With a few calls, a bill could eventually be found that was inflated or not clearly related to work.  Now, the employer can make a stronger and even more convincing case by using GPS tracking data to show an employee has lied about his whereabouts.  The reason is that GPS is not just real time, but historical.   Think of your iPhone, Blackberry, or your company vehicle's GPS as an in flight "black box" that records a multitude of travel information.  To state the obvious, it tracks where you are.  The System also tracks where you were at all points on the route, your speed, your braking patterns, and your signaling, and yes, the times of day these events occurred.  Your movements can be real time or later monitored on a company computer.  If a car is part of your compensation, your "off-work" use of the vehicle will be monitored too as a practical matter because you can't disable the factory equipped system.  Many computer applications now identify businesses (restaurants, bars, hotels) located within a tight radius.  Where you likely spent your free time may be discoverable with a few clicks by an intrusive employer. Don't assume that because you rented a vehicle, your employer cannot obtain GPS tracking data from the rental company.  If your employer is paying the bill as the designated customer, while you are only the designated driver, the employer may obtain the tracking information from rental car company.  

So, there is no bright line privacy protection test.  Generally, where you are paying all or part of the mobile phone bill or the rental car fees, or providing your own transportation in your own vehicle, and use the phone or vehicle for both business and personal use, you will have a good argument that at specific times of day and for specific personal uses, you privacy rights apply to refuse to answer employer inquiries of "where were you?".   But the converse is true: when you're on company time and the company is paying for the use of the phone or vehicle, you likely do not have an enforceable privacy expectation, especially if the employer has put you on written notice that your movements will be monitored.   

 

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


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Salacious Text Messages Not Subject to Police Search

Subtitle:  What's Wong with Quon?

What do police officers do after finishing off a few donuts?   Well, this one idled away his time by sending sexually explicit text messages on his Department provided text pager.  When his commanding officer checked the content of the messages, well, Officer Donut was busted.  Not to be dressed down, the officer sued for invasion of privacy.  One would think this suit had a hole in it bigger than a super-glazed, but no, the Ninth Circuit found a way to protect the officers "reasonable expectation" of privacy to send titillating one liners between arrests.  

The key fact giving rise to the right of privacy:  The Officer paid for the cost of the text messaging over the set amount allocated for official use.   [Apparently Officer Quon sent a lot of messages, and so paid a lot of the bill].  

The general rule is that so long as employees are put on notice that they are subject to searches of electronic communications conducted on company equipment, employers may conduct such searches. The court in Quon v. Arch Wireless Operating Company did not change that principle. It noted that had the City not exercised the unofficial policy of accepting payments for overage, its actions would not have constituted an invasion of privacy. Notably, its "Computer Usage, Internet and E-mail Policy" and staff meeting would have been sufficient for putting Sergeant Quon on notice that he could not expect his communications to be confidential. The unofficial policy, however, belied the official policy and obstructed whatever notice Sergeant Quon may have had of the possibility of the search.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


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She Didn't Make the Cut

This could be the beginning of a dark thriller. A nursing home worker wears a knife concealed under her closing. The employee is part of a group that requires the knife to be worn at all times. A number of mysterious deaths occur at the nursing home.

But no, the thriller turns into a more mundane drama of the EEOC v. the Nursing Home for denying a baptized Sikh from wearing a kirpan. A kirpan is a ceremonial knife worn by Sikhs as a religious symbol. It is not used to cut feeding tubes or terrorize co-employees. Somehow, the nursing home management, perhaps due to an onset of contagious dementia, felt that it had to make the workplace safe from all knife wielding employees, and so allegedly gave Baljit Kaur Bhandal an ultimatum, shed the knife, or shed the job. She elected the latter, and sued her employer for constructive termination based on religious discrimination.

Currently, the matter is just a suit, but the EEOC says the Nursing Home acted with malice, and deserves to be punished. Stephen King could have much more fun with this than the EEOC.

EEOC v. Heartland Employer Services, LLC, No. 08 CV 00460, complaint filed E.D. Cal. Sacramento, Feb. 28, 2008.


"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


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Saturday Night in the Office

It's Saturday night, and I came into the office about 3 hours ago to work. Instead of holding my loved one close, I am consoled by her picture on my desk, knowing she is sleeping in London, England tonight. Instead of choosing which music or wine, I was confronted with the scintillating choice of doing taxes or working on an overdue client project. Occasionally, I do exactly the disciplined thing, without hesitation. Tonight, I chose the easier and less noble alternative: I cleaned up my blog site a bit, and whined for all the world to see. To justify this, I reminded myself that the underdog Xavier (which happens to be my middle name)lost tonight to U.C.L.A. in the NCAA battle among the Elite 8. I typically represent the underdog, and so find myself invariably rooting for teams like Xavier who repeatedly get their shots blocked, their rebounds knocked away, and their dribbles stolen for a fast break and dunk, yet somehow keep fighting, and just maybe creating an upset. It seems to me that life is measured against overly simplistic standards: you win or you lose. I have run 2 marathons and 3 half marathons, two of the halves this year. When I run, I invariably see the young and strong achieve the best times, and by ranking, the glory. Yet, it seems to me, the improbable grandmother who takes up running late in life, and gives it everything she's got, is just as worthy of applause, yet she must be her own source of accolades. She did not "win", and so receives no glory. So I, coming into work tonight and again tomorrow, receive no glory, and need none. I have run against my own time, and am content.



"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


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