On Tuesday, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, previously discussed here. The dissent (1) disagrees with the panel’s conclusion that the SWAT team members had a reasonable expectation of privacy in the text messages on the grounds that the decision undermines the standard established by the Supreme Court in O’Connor v. Ortega, 480 U.S. 709 (1987); and (2) finds that the method used by the panel to determine whether the search was reasonable conflicts with Supreme Court precedent holding that the Fourth Amendment does not require the government to use the “least intrusive means” when conducting a “special needs” search. The dissent can be found here. Judge Wardlaw’s concurrence in the denial of rehearing en banc can be found here. We will keep you posted on this one.
Workplace Privacy
Enforcement of E-Verify Regulation Postponed Once Again
By Proskauer Rose on
Today is Data Privacy Day and we bring you a special post regarding E-Verify from guest contributors Lawrence Lorber, Malcolm Harkins, and James Segroves, of Proskauer’s DC office, and David Grunblatt of Proskauer’s Newark office. Enforcement of a controversial federal regulation that raised significant privacy concerns has been postponed once again as the result of a legal challenge filed by Proskauer on behalf of the Chamber of Commerce of the United States of America and four other trade associations. See Chamber of Commerce of the U.S. v. Napolitano, Civil Action No. AW-08-3444 (D. Md.). The regulation in question would have required most government contractors and subcontractors to participate in E-Verify, an Internet-based system that allows employers to verify that individuals are eligible to work in the United States using an employee’s Social Security Number and other personal information. Pursuant to a January 27, 2009 agreement between the parties, enforcement of the regulation has been postponed until May 21, 2009, in order to give the recently inaugurated Administration of President Barack Obama an opportunity to review the regulation. A notice to this effect is scheduled to be published in the Federal Register on January 30, 2009.
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New York Restricts Employer Use of Employee Social Security Numbers
By Proskauer Rose on
New York now prohibits employers from publicly displaying employee Social Security Numbers (“SSNs”), printing employee SSNs on identification cards, and communicating to the general public employee SSNs or “personal identifying information.”
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Tagging Cars for Labor-Organizing Purposes May Be Subject to Punitive Damages
By Proskauer Rose on
The Third Circuit recently ruled that a labor union violated the federal Driver’s Privacy Protection Act (“DPPA”) when it accessed the motor vehicle records of Cintas employees for an improper “labor-organizing” purpose. In Pichler v. UNITE, the divided court affirmed the district court’s grant of summary judgment to the plaintiffs whose home addresses were obtained as part of the Union of Needletrades, Industrial & Textile Employees’ (“UNITE”) drive to organize Cintas employees. In reaching its conclusion, the court held that punitive damages may be awarded for violations of the DPPA. The court also concluded that the union’s assertion that it collected and used personal information from motor vehicle records for litigation — a permissible purpose under the DPPA — did not overcome the lower court’s finding that it collected and used the information for impermissible labor-organizing activities.
Wrath of Quon?
By Proskauer Rose on
The June 18, 2008 Ninth Circuit panel decision in Quon et al. v. Arch Wireless et al., No. 07-55282 (9th Cir. June 18, 2008) has sparked a flurry of news reports and speculation regarding employers’ ability to monitor employees’ e-mails and text messages. In fact, the decision appears to change very little for private employers who wish to review employee communications stored on, or sent through, their own servers and computers. However, Quon does limit employers’ ability to request from third-party providers the contents of employees’ electronic communications.
Ninth Circuit Upholds NLRB Test for Unlawful Employer Surveillance of Union Activities
By Proskauer Rose on
In a unanimous panel opinion issued on January 28, 2008, the Ninth Circuit upheld the National Labor Relations Board’s (NLRB) newly-announced three-factor test for determining whether employer surveillance activity of potential union members is coercive and therefore in violation of the National Labor Relations Act (NLRA). The case, Local Joint Executive Board of Las Vegas et al. v. NLRB, No. 05-75515, — F.3d –, 2008 WL 216935 (January 8, 2008), involved two incidents of alleged surveillance of union activities at Aladdin Gaming, LLC, in which Aladdin officials conferred with employees in the cafeteria who had been presented with union cards.
California Court of Appeal Reaffirms Adequacy of Opt-Out Notice to Protect Privacy of Individual Identity and Contact Information in Litigation
By Proskauer Rose on
On April 9, 2007, the California Court of Appeal, Second Appellate District, affirmed a ruling of the Los Angeles Superior Court permitting the disclosure to counsel for a putative class of the names, addresses, and telephone numbers of the defendant’s current and former employees unless, following proper opt-out notice, they objected in writing to the disclosure.
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