Employee Privacy -- Certiorari Granted

On December 14, the United States Supreme Court granted certiorari in City of Ontario v. Quon, 08-1332. In this case, the Court will address important issues involving employee privacy, the workplace, and technology.

Quon deals with employer-owned pagers used to send text messages. The employer policies in question clearly established that the employer owned the pagers and that employees should have no expectation of privacy when using them. Despite these policies, supervisors told employees that their pagers would not be audited so long as they agreed to pay any overage charges. In fact, the employer had followed this informal policy, and had done so regarding Quon on at least three occasions. Because of this informal policy, and despite the formal policy, the Ninth Circuit upheld the district court's grant of summary judgment, holding that Quon had a reasonable expectation of privacy in his text messages and that the search in question was unreasonable as a matter of law.

To be sure, Quon will only directly relate to public employers and other entities subject to Constitutional restraint. Nonetheless, the Court's decision in Quon should provide much needed guidance to all employers regarding employee privacy, the workplace, and technology.

Click here for a copy of the Ninth Circuit's decision.

Conscionability of Arbitration Provisions -- Certiorari Granted

On January 15, the United States Supreme Court granted certiorari in Rent-A-Center, West, Inc. v. Jackson, 09-497. The issues involved in Rent-A-Center is whether a federal district court is required to determine whether an arbitration provision is conscionable, even if the parties' agreement contains a provision assigning this issue to an arbitrator. The Ninth Circuit held that a district court must decide the threshold question of arbitrability regardless of the language in the parties' agreement. In doing so, the Ninth Circuit reversed the district court's decision to dismiss the case and compel arbitration based on the parties' agreement to assign conscionability to an arbitrator.



Entities who rely on arbitration provisions, including employers, should carefully follow Rent-A-Center. Michigan employers, in particular, rely heavily on arbitration provisions to assure that disputes between them and their employees are promptly and efficiently resolved. If the Court concludes that conscionability is for a court to decide, and not an arbitrator, that desirable promptness and efficiency will be affected.

Click here for a copy of the Ninth Circuit's decision.