July 2010 Issue Number 120

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

The Expectation of Privacy

Do workers have an expectation of privacy for the content of text messages sent from devices provided by their employers? On one level, most employees know that they don't. The employer owns the device, and is paying the cost of using it. Some employers have specific policies that all workers must sign, acknowledging that the employer has rights to knowledge of all business conducted on their equipment, such as tracking website usage on workplace computers.

On the other hand, it is often understood within many workplaces that a department issued cell phone or pager may be used reasonably for personal business at times. Such allowances usually include the stipulation that such usage will not incur cost for the employer. When used under these conditions, does a worker have the expectation of privacy for the content of those personal messages? Not according to a recent US Supreme Court decision.

The case concerned an Ontario, CA police officer who had been issued a texting pager by his department. When several officers on the department exceeded their monthly allowance for texting characters, they were initially allowed to pay for the difference themselves. Later, the department decided to audit the content of the messages as a way to determine whether the character allotment was too low, or conversely, whether officers were using their devices for personal messaging. The audit revealed that one officer was mostly using his pager for personal reasons on duty, including sending sexually explicit messages to his wife and girlfriend. The department disciplined the officer following the audit, and the officer sued the department for a violation of his Fourth Amendment protection against unreasonable search and seizure.

The district court found in favor of the city, but the 9th Circuit Court reversed that ruling. That left it up to the US Supreme Court, which reversed again. The basis for the ruling hinged on the rationale presented by the city for monitoring the content of the text messages. The city said its intention was based on determining whether current text allowances were adequate for department business or needed to be increased. The Supreme Court ruled that this rationale was reasonable, and that the discovery the inappropriate nature of the officer's messages was secondary to this goal.

This ruling was narrowly made given the particular circumstances of the case, and does not give free rein for an employer to monitor personal communication of its employees. But the message is clear-- if an employer owns the phone, pager, computer, or other device, think twice before using it for personal business, and understand that the content of messages you send may not be as private as you think.

Source: City of Ontario, California et al v. Quon et al, US Supreme Court, No. 08-1332.

President Obama has announced his intention to expand the rights of gay workers to include allowing them to take family and medical leave to care for sick or newborn children of same-sex partners. In April, the White House announced that same-sex partners will be allowed hospital visitation rights.

Source: The New York Times, June 21, 2010

Training Quality as a Legal Issue

Most organizations know that training is necessary to mount an affirmative defense against an EEO complaint. But just going through the motions so you can say, "Oh yes, we do harassment training every year" may not be enough if a case goes to court. Judges in such cases are looking for much more-- not just the content of the training but also characteristics and qualifications of the trainer as well.

What legal entities are looking for with training are the following:

• The training is presented in an interactive and engaging manner (just having people watch a video is not enough.)
• The classes are built around the policies and circumstances of that particular workplace.
• The training includes a variety of learning opportunities-- lecture, small group, question and answer.
• There is an opportunity to practice skills learned.
• Presenters are knowledgeable not just about EEO issues in general but also how the law is practically applied in different circumstances.
• Presenters do not give legal advice or comment on specific cases within the organization.
• Presenters are respectful, professional, and encouraging of interaction within the class.

Some people think that training on harassment and discrimination does more harm than good. It is true that badly developed and presented classes may have the effect of making people cynical or confused. Training on workplace harassment is really not optional anymore-- it's the first question that will be asked if a problem arises. When did training occur? How effective was it? Did the training represent a true commitment on the part of the organization to making the workplace fair and equitable for everyone? In hard economic times, it is tempting to cut corners with this type of training. But if real trouble develops, such savings will look meager compared to the costs that may be incurred further down the line.

Source: The HR Daily Advisor, June 14, 2010

© Linda F. Willing, 2010