Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.
 

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All workplaces should have a social media policy in place which outlines behavioral expectations for employees. This includes non-profits, governmental agencies, as well as private sector businesses. It is pretty difficult to discipline an employee for spending too much time on Ebay or Facebook, or for sharing corporate news through Twitter, without specific guidelines in place.

I previously blogged about the need for social media polices in your workplace. Employers should consider the scope of their social media policy and make sure the policy fits their business model. Do you want employees to be sharing business information on social media? How does social media use by employees fit into your business public relations plan? Is it necessary to limit an employee’s use of social media? What are potential business advantages and disadvantages as a result of employees using social media? Should you exercise some type of control over social media and funnel it through one source?

If you are still not convinced you need a social media policy, the Federal Trade Commission recently posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."   It indicates employers could be liable for false statements about their  buisness/products made by employees through social media, and that employees are required to disclose their employment relationship to your buisness when making any endorsements.

Social media policies should address your unique business needs. Many model policies are available on-line, however one size does not fit all.  You don’t need to recreate the wheel while drafting your own social media policy, you just need to tailor it to fit the needs of your business.

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Daniel Schwartz reported on his recent attendance at the 2010 Legal Tech Conference in New York. Finally, it seems businesses are realizing someone on the web is talking about them, and it may not be the media relations message they had in mind.

Several years ago while Walmart was using its cheerful elderly greeters in an ad campaign for their stores, an internal memo from Walmart top management was busy sending a very different message. The internal memo discussed trying to reduce health benefit costs by getting rid of older and sick employees. The contradiction caught on fire on the web. It was a disaster for Walmart.

Businesses can address social media messages with employees by adopting social media policies. As technology has evolved from pagers and cell phones to e-mail, and now Twitter & Facebook, personnel policies must also evolve.

It is not necessary for your business to redesign the wheel. It is necessary to draft a social media policy which captures the philosophy of your company, and the values of management. Matt Leonard blogged about, “Why employees need Social Media Guidelines,” and offered links to 22 useful social media resources including model policy examples. Start with a model policy and see what will work for your business.

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Many employers mistakenly think if they don’t have a written contract with employees or their employees don’t have a union, then the employees are “at-will.” “At-will” employment may be terminated by an employer or an employee at any time for basically any reason.  In Minnesota, employees are presumed to be employed “at-will.”

It is possible for an employer to unintentionally alter an employee’s “at-will” status and create an expectation of job security. Minnesota courts follow two major exceptions to “at-will” employment. One being an employer may not discharge an employee when the termination is against a well-established public policy, for example, firing an employee for filing a workers’ compensation claim after being injured at work. The second is the creation of an implied contract based on either policy statements made in an employee handbook or oral representations made by an employer to an employee.

If your employees are “at-will” employees, do not include the following in your employee handbook:

• Probationary terms – “At-will” employees are “at-will” before, during, and after probationary periods. Having probationary language may be interpreted as providing a guaranteed term of employment.
• Specific discipline procedures - Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.
• “Just cause” for termination – Can create expectations of job security.
• Defining employees as “permanent” – Can create expectations of job security.

If you have “at-will” employees, you should not make specific promises in your employee handbooks which could lead employees to believe they had a guarantee to continued employment, and you should include clear and prominent disclaimers to prevent the creation of unilateral contracts with employees. 
 

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As the New Year dawns, it is the perfect opportunity to do a check-up of your current business practices and determine if any changes are in order. Everyone needs a check-up every now and then, and this includes your business. A business check-up will help you reach your 2010 goals to increase revenues and productivity.

Some things you should review and questions to ask:

• Employee handbook or policy manual - Are all policies current? Do your actual business practices follow these policies or do they conflict? Do you need to add any new policies?
• Rental leases – Is everyone living up to the lease? Is an extension in order?
• Business contracts – Are there any changes needed in any vendor or supplier contracts?
• Insurance policies – Is your insurance coverage adequate to protect your business?
• Marketing practices - Did each effort bring in new business as expected? Why did you choose certain marketing options, was it to stay in front of clients or to try to get your name out to new clients? Do you feel your efforts were successful?
• Membership in Associations – Does this membership serve your business plan?
• Office technology – Do you have a replacement schedule? Do you need to upgrade or replace any office furniture or technology?

Often businesses can get stuck in a rut. There is no better time to kick start new ideas or to stop wasting time and money than the start of a new year. Take the time to do a check-up on your business practices and kick-start 2010.

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Just this week the United States Supreme Court granted review of an important case (pdf) that will impact employers; public employers in particular. The Supreme Court will decide whether employees have an expectation of privacy in the text messages they send on devices owned by their employers. This case is opening the door into the new frontier of law and technology in the workplace.

The case stems from a police sergeant’s use of a City owned pager to send business and personal text messages. The City of Ontario, California had a general computer usage, internet and e-mail policy which was applicable to all employees. The policy stated, users should have no expectation of privacy or confidentiality when using internet and e-mail resources and usage may be monitored. The City had no formal policy governing the use of department pagers, but there was an informal policy established by a police lieutenant that text usage would not be audited, so long as the employee agreed to pay any overage charges for exceeding a 25,000 character limit.

The Supreme Court decision is not expected until next summer, so what can you, as an employer, do now? 

1. Make sure policies address all your technology.
2. Insure your policies are being followed and not contradicted by management.
3. Train employees on all policies, including new or revised policies.

Remember policies are the workplace rules you have set for your employees to follow, and you need to review these rules on a regular basis and change them when necessary.

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Why is it important for a business to have an employee handbook or personnel policy manual? There are many reasons.

Handbooks or policy manuals can set the tone for a business. They put all the employees on the same page with respect to workplace rules. They outline benefits for uniform and consistent treatment of employees, and they set forth the legal obligations of the employer.

Having an employee handbook or policy manual can show a good faith effort by an employer to comply with applicable laws, like EEOC, FMLA, and FLSA.

Types of polices to consider including in handbooks or policy manuals are internet usage at work, personal cell phone usage at work, attendance/punctuality, confidentiality and use of social media. If a business has decided employees will serve “at-will,” they should not include policies outlining probationary, introductory or trial periods, grievance procedures, or a lock-step discipline process. These types of policies in Minnesota could be interpreted as a guarantee of work or a contract between the employer and the employee (pdf) effectively eliminating an employee’s at-will status.

Employee handbooks or policy manuals should be tailored for each specific business; one size does not fit all when it comes to these documents. Employee handbooks or policy manuals make for better workplaces, because employees know what to expect and what is expected of them.

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