[Is there a U.S. Constitutional right to informational privacy?  Our privacy expert, Jesse Jauregui, shares his thoughts on the U.S. Supreme Court's recent oral argument in the NASA v. Nelson case, a lawsuit that looks into the nature of a U.S. privacy right, and challenges how much and what type of personal information the government can obtain during background or security checks.    The Ninth Circuit determined that JPL was too obtrusive when it asked open-ended questions about whether longtime JPL employees had done anything that might reflect negatively on their ability to continue performing their jobs.  Will the Supremes see it the same way?  Ed.]

How might Employee privacy rights be impacted by this case?

There is a good possibility that the U.S. Supreme Court will issue a narrow ruling no matter what the ultimate decision is.  If the Supreme Court upholds the Ninth Circuit decision, government contract employees will enjoy a greater scope of informational privacy with respect to inquiries such as past drug and alcohol counseling and/or treatment for drug abuse.  Government contract employees may also receive greater protection from more open ended inquiries which do not strictly relate to determining their suitability for employment.  If the Court reverses the Ninth Circuit decision, government employers will be able to continue to use their standard background check processes (including form SF 85 and Form 42) for employees that are classified as "low risk" employees.

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A significant number, if not the majority, of employees in the United States use company owned computers to access the Internet for personal purposes.  With the recent controversy surrounding the misuse of Pentagon computers used to access, and in some cases purchase, child pornography, there is a renewed interest in how employers should regulate workplace Internet Access and their potential liability for failure to prevent their more egregious misuse.

1. The Need for Clear Internet Use Policies

It is essential for employers to have clearly spelled out, and clearly communicated, policies regarding Internet Use and the right of the employer to monitor such use.  Prohibited uses need to be specifically articulated, including those that may appear obvious to management.  No matter who the employer, the policy needs to provide notice of the employer's right to monitor and audit an employee's use of the Internet and make clear that there is no expectation of privacy in an employee’s use of the Internet when doing so through a company owned computer issued for business purposes.

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NOTE FROM THE EDITOR:  We reported on the Quon v. Arch Wireless case many moons ago (see here for our summary).  In that opinion, the Ninth Circuit held that -- in the case before it -- the employee police officers had a reasonable expectation of privacy in the text messages they sent and received on their employer-provided PDAs. 

The media had a field day, proclaiming the end of employer monitoring of employee electronic communications.  However, as we explained in our summary, the case didn't go that far.  It was limited to situations where the electronic communication did not reside on the employer servers (contrary to the practice of most company email systems), and where there was an informal policy that the employer would not monitor the communications (contrary to most employers' express policy permitting monitoring).

Guess what?  This may not be the end of the story.  According to Alston & Bird employment and privacy specialist Jesse Jauregui, today the U.S. Supreme Court has just picked up the case for review (under the caption City of Ontario, California v. Jeff Quon, et al.).  See here.

Based on how the Ninth Circuit usually gets treated by the U.S. Supremes, anyone want to bet how this one will come out?

Here's Jesse's take on the Supreme Court's action:

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As promised, we continue our trip down memory lane by looking at some of the more significant California Supreme Court employment decisions in 2009.  Don’t bother putting on your shoes, it’s a really short trip.  In fact, in this reporter’s humble opinion, the 2010 journey will be much more interesting as there are a number of novel issues fully briefed just waiting for that splash of Supreme Court brilliance.  For now, we look at employer spying, supervisor harassment, punitive damages, and the infamous 17200 unfair competition law.

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What does the California Supreme Court's recent decision in Hernandez v. Hillsides, Inc. mean to California employers who have legitimate needs for workplace video surveillance of its employees and work areas?  Plenty. 

Alston & Bird workplace privacy specialist Jesse Jauregui not only explains the case, but offers valuable insights and tips to California employers.  (Our thanks to Employment Law 360 for publishing the article in its August 13, 2009, edition.)

The two ends of the workplace privacy spectrum have been fairly well defined by prior California law.  On the one hand are those cases that have allowed covert videotaping in open and accessible workplace areas. 

On the other hand are those cases that find a violation of the right to privacy by videotaping areas reserved for personal acts such as employee restrooms and dressing areas. 

In Hernandez v. Hillsides, Inc., S147552 (August 3, 2009), the California Supreme Court was confronted with a scenario that falls between those extremes and further delineated the extent to which an employer may conduct workplace video surveillance of its employees without violating their right to privacy. 

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Just how "unique" is California employment law?

We asked our panel of experts to come up with their TOP 10 list of uniquely California employment laws, rules, and regulations.  Here were the first ten to pop to mind:

1) VACATION PAY– Unlike virtually every other state, California does not allow employers to have “use it or lose it” vacation policies.  Instead, California requires employers to either cash out their employees’ accrued vacation at the end of the year or allow them to carry it over up to a “reasonable cap” on accrual.

^{[thanks to Alan Light for the photo
of the Top 10 King!]}

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