8. Privacy – The Supreme Court held in City of Ontario v. Quon that the search of a police officer’s text messages sent on his government-issued pager did not violate the Fourth Amendment. In this case, the Court found that the search was reasonable because it was motivated by a legitimate work-related purpose and since it was not excessive in scope. While the holding in this case is quite narrow, the Supreme Court’s opinion serves as a reminder for private employers to act reasonably when reviewing employees’ electronic communications. I am sure we will see many more cases in 2011 regarding employees’ privacy rights when using their company-issued electronic devices for “new” technology such as texting and sending messages through personal email and social websites.
7. FLSA – In April, the Department of Labor issued a fact sheet with six factors to help employers determine whether interns must be paid the minimum wage and overtime under the FLSA for the services that they provide. My firm published an article detailing the factors, which can be found here. The intern exception is very narrow. Therefore, companies should carefully evaluate whether their unpaid interns should be paid minimum wage.
6. Social Media / Privacy – In Stengart v. Loving Care Agency, the New Jersey Supreme Court recognized a privacy interest in an employee’s communications to her attorney on her work computer. The company had an electronic communications policy that reserved the company’s right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice. The policy also permitted employees to use the computer for occasional personal use. After evaluating the scope of the policy, the steps the employee took to protect the privacy of her own emails, and the public policy underlying the attorney-client privilege, the court determined that the employee had a reasonable expectation of privacy. This decision provides helpful guidance as to how “[c]ompanies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.”
To be continued… the last five of the Top 10 will be posted tomorrow.