Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

While public discussion of the case has revolved principally around the first element of Quon’s claim, i.e., whether Quon reasonably could expect privacy in his text messages, the Supreme Court seemed to focus more heavily on the second element, i.e., whether the City’s review of Quon’s text messages was excessive or unreasonable. During the trial in the case, the jury found that the City’s purpose in searching Quon’s text messages was to determine whether those messages were sent for business or personal reasons. Under persistent questioning from Justices Breyer and Sottomayor, Quon’s counsel struggled to identify a less intrusive means for the City to achieve this indisputably, legitimate purpose than the City’s reading all of Quon’s text messages. The Supreme Court could resolve the case on this initial element of Quon’s claim and not even address whether Quon’s privacy expectation was reasonable.

The Court also appeared skeptical of the Ninth Circuit’s conclusion that Quon reasonably could have expected privacy in his text messages. To reach that conclusion, the Ninth Circuit had relied upon a statement by Lieutenant Duke, the police official responsible for the text messaging program. Duke told Quon that he would not read Quon’s text messages to determine whether they were business-related or personal so long as Quon paid the service provider’s overage charges when Quon exceeded the contractual limit on the number of characters per month. Justices Alito’s and Ginsburg’s questions suggested that they viewed Duke’s statement to be limited to his own actions as opposed to a guarantee of Quon’s privacy against any search by the City. Justices Stevens’ and Kennedy’s questions honed in on the nature of Quon’s SWAT duties, suggesting that Quon could not reasonably expect privacy given that he was on call 24/7 and knew, or should have known, that his text messages might be evidence in criminal proceedings.

Interestingly, Chief Justice Roberts’ questioning suggested that he was somewhat sympathetic to Quon’s contention that he reasonably could expect privacy in his text messages. The Chief Justice noted in his questions that Quon paid the City for his personal text messages, sent at least some of the texts while off-duty, and was told by Duke that he (Duke) would not audit them. The Chief Justice also noted that the Internal Affairs investigators who reviewed the transcripts of Quon’s text messages had redacted the personal ones, suggesting that these investigators considered the personal messages to be private.

In another noteworthy twist, the United States Government, arguing alongside the City, asked the Court to adopt a bright-line rule that employers can defeat the reasonableness of any employee’s expectation of privacy by issuing a policy informing employees that they have no privacy in their communications over employer-provided equipment. The Court did not seem receptive to this position. Justice Sottomayor noted the Court’s well established precedent — O’Connor v. Ortega — holding that “operational realities” of an office are a factor in determining whether an employee had a reasonable expectation of privacy in the workplace and that the employer’s policy is just one factor to consider.

Perhaps most telling of the Court’s likely hesitance to adopt a bright-line rule in either direction were comments by Justice Alito and the Chief Justice. Justice Alito emphasized the newness of the communications technology in the following statement:

[E]lectronic communications are stored all over the place in – and there isn't a history — these are — these are relatively new. There isn't a well-established understanding about what is private and what isn't private. It's a little different from putting garbage out in front of your house, which has happened for along time.

The Chief Justice emphasized the evolving nature of communications technology in response to the federal government’s advocacy of a bright-line rule, stating, “We are dealing with [the Fourth] [A]mendment that looks to whether something is reasonable. And I think it might be the better course to say that the Constitution applies, but we are going to be more flexible in determining what is reasonable because we are dealing with evolving technology.” (emphasis supplied).

A ruling will be issued by the end of the Court's term in June 2010.

This entry was written by Philip L. Gordon.

RagingWire’s attorney argued that employers have an interest in ensuring that employees are not using drugs illegally, and should not have to tolerate off-work drug use by workers simply because state law considers such use lawful.  These arguments were persuasive in the lower courts, and several Justices participating in the oral argument appeared to agree that the federal-state law conflict posed a problem for employers.

Ross’s attorneys pointed out, however, that RagingWire had no obligation to drug test Mr. Ross under federal law, and that there was little risk that the Company could be held liable for accommodating his off-job drug use.  In addition, California public policy strongly supports an individual’s right to employment absent discrimination on the basis of disability, and further contains provisions protecting individuals’ rights to make basic decisions regarding their medical care.  Ross’ attorneys further argued that the California Constitution’s privacy protections also militated in favor of Ross, absent evidence that he was impaired by his marijuana use while at work.

Significantly, Ross’s advocates did not challenge an employer's right to conduct the drug test in the first place, and both agreed that the California Supreme Court's decision in Loder v. City of Glendale remains good law.  The Loder decision established that California employers may conduct workplace drug testing in circumstances that do not unduly intrude upon an individual's right to privacy.  The opinion discusses at length the various ways in which illegal drug use adversely affects employers, and concludes that attempts to detect such use may be tolerable incursions upon an employee's right to autonomy privacy.  The fact that medicinal use of marijuana is now technically not unlawful as a matter of California law begs the question of whether, and to what extent, employers must accommodate that use like any other prescription medication which may have adverse effects on an individual's behavior or job performance.

Ultimately, many of the questions raised by the Justices were not adequately addressed by Ross’s attorneys:  If the test is lawful under California law, and the drug use is arguably lawful under California law, what, if anything, must the employer do to accommodate such use?  Can permitting the off-duty use of marijuana ever be deemed a reasonable accommodation?  As a practical matter, RagingWire had not considered whether to accommodate Ross’s marijuana use, and neither side appeared willing to compromise its position regarding Ross’s right to use marijuana.  Interestingly, the attorneys for Ross agreed that an employee who came to work under the influence of drugs could be disciplined by his employer, but failed to explain the difference between a positive drug test and evidence of impairment.  If that line of reasoning is adopted, it may have the curious result of barring employers from refusing to hire individuals who use marijuana pursuant to the Compassionate Use Act, but permitting employers to discharge such individuals for testing positive after a workplace accident or other incident suggestive of impairment.

Ultimately, court-watchers came away with no clear sense of how the California Supreme Court might rule.  Given both parties’ support for the Loder case, however, it appears unlikely that the privacy analysis applied to workplace drug testing, which balances the needs of the employer against the privacy interests of the employee, will be revised.