CITY OF ONTARIO, CALIFORNIA, et al., Petitioners v. JEFF QUON et al. - - PDF document

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CITY OF ONTARIO, CALIFORNIA, et al., Petitioners v. JEFF QUON et al.

• No. 08-1332

SUPREME COURT OF THE UNITED STATES 130 S. Ct. 2619; 177 L. Ed. 2d 216; 2010 U.S. LEXIS 4972; 78 U.S.L.W. 4591; 93 Empl. Prac. Dec. (CCH) P43,907; 30 I.E.R. Cas. (BNA) 1345; 22

• Fla. L. Weekly Fed. S 470

April 19, 2010, Argued June 17, 2010, Decided PRIOR HISTORY: [***1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 2008 U.S. App. LEXIS 12766 (9th Cir. Cal., 2008) DISPOSITION: Reversed and remanded. DECISION: [**216] City's obtaining and reviewing of transcripts of text messages sent by city police of- ficer on city-issued pager held not to violate Federal Constitution's Fourth Amendment prohibition of unreasonable searches and seizures. SUMMARY: Procedural posture: Respondents, an employee and others, filed an action against petitioners, a city and others, alleging, inter alia, that petitioners violated their Fourth Amendment rights by ob- taining and reviewing the transcript of the employee's pager messages. A district court held that pe- titioners did not violate the Fourth Amendment. The U.S. Court of Appeals for the Ninth Circuit re- versed in part. The U.S. Supreme Court granted a petition for certiorari. Overview: The petition for certiorari challenged the court of appeals' holding that petitioners violated the Fourth Amendment. The Supreme Court assumed that the employee had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the city. The search was justified at its inception because there were reasonable grounds for suspecting that the search was

necessary for a noninvestigatory work-related purpose because the search was done in order to de- termine whether the character limit on the city's contract was sufficient to meet the city's needs. Also, the city and a police department had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications. The search was permissible in its scope be- cause reviewing the transcripts was reasonable because it was an efficient and expedient way [**217] to determine whether the employee's overages were the result of work-related messaging or personal

• use. The search was reasonable. Petitioners did not violate respondents' Fourth Amendment rights.

Outcome: The judgment of the court of appeals was reversed. The case was remanded for further

• proceedings. 9-0 Decision; 2 concurrences.

COUNSEL: Kent L. Richland argued the cause for petitioners. Neal K. Katyal argued the cause for the United States, as amicus curiae, by special leave of court. Dieter Dammeier argued the cause for respondents. JUDGES: Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Thomas, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined, and in which Scalia, J., joined except for Part III-A. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment. OPINION BY: KENNEDY OPINION Justice Kennedy delivered the opinion of the Court. This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an

• employee. The employee contends that the privacy of the messages is protected by the ban on "un-

reasonable searches and seizures" found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961). Though the case touches issues of farreaching significance, the Court concludes it can be resolved by settled principles [***9] determining when a search is reasonable. I A The City of Ontario (City) is a political subdivision of the State of California. The case arose out

• f incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police De-

partment (OPD). He was a police sergeant and member of OPD's Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD's Chief, Lloyd Scharf, are petitioners [*2625] here. As will be discussed, two respondents share the last name Quon. In this opinion "Quon" refers to Jeff Quon, for the relevant events mostly revolve around him.

In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text

• messages. Arch Wireless Operating Company [**222] provided wireless service for the pagers.

Under the City's service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional

• fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT

Team mobilize and respond to emergency situations. Before acquiring the pagers, the City announced a "Computer Usage, Internet and E-Mail Policy" (Computer Policy) that [***10] applied to all employees. Among other provisions, it specified that the City "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources." App. to Pet. for Cert. 152a. In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy. The Computer Policy did not apply, on its face, to text messaging. Text messages share similari- ties with e-mails, but the two differ in an important way. In this case, for instance, an e-mail sent on a City computer was transmitted through the City's own data servers, but a text message sent on one of the City's pagers was transmitted using wireless radio frequencies from an individual pager to a re- ceiving station owned by Arch Wireless. It was routed through Arch Wireless' computer network, where it remained until the recipient's pager or cellular telephone was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the re-

• cipient. After delivery, Arch Wireless retained a copy on its computer servers. [***11] The message

did not pass through computers owned by the City. Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City's contract with Arch Wireless, told officers that messages sent on the pagers "are considered e-mail messages. This means that [text] messages would fall under the City's policy as public information and [would be] eligible for auditing." App. 30. Duke's comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel. Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were "considered e-mail and could be audited." Id., at 40. Duke said, however, that "it was not his intent to audit [an] employee's text messages to see if the overage [was] due to work related transmissions." Ibid. [***12] Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees. Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon [*2626] and another officer again incurred overage fees for their [**223] pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become " 'tired of being a bill collector.' " Id., at 91. Scharf decided to determine whether the existing character limit was too low--that is, whether officers such as Quon were having to pay fees for sending work-related messages--or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance.

At Duke's request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired tran-

• scripts. Duke reviewed the transcripts and discovered that many of [***13] the messages sent and

received on Quon's pager were not work related, and some were sexually explicit. Duke reported his findings to Scharf, who, along with Quon's immediate supervisor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD's internal affairs division for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty. The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon's work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the messages Quon sent during work hours. McMahon's report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined. B Raising claims under Rev. Stat. § 1979, 42 U.S.C. § 1983; 18 U.S.C. § 2701 et seq., [***14] popularly known as the Stored Communications Act (SCA); and California law, Quon filed suit against petitioners in the United States District Court for the Central District of California. Arch Wireless and an individual not relevant here were also named as defendants. Quon was joined in his suit by another plaintiff who is not a party before this Court and by the other respondents, each of whom exchanged text messages with Quon during August and September 2002: Jerilyn Quon, Jeff Quon's then-wife, from whom he was separated; April Florio, an OPD employee with whom Jeff Quon was romantically involved; and Steve Trujillo, another member of the OPD SWAT Team. Among the allegations in the complaint was that petitioners violated respondents' Fourth Amendment rights and the SCA by obtaining and reviewing the transcript of Jeff Quon's pager messages and that Arch Wireless had violated the SCA by turning over the transcript to the City. The parties filed cross-motions for summary judgment. The District Court granted Arch Wireless' motion for summary judgment on the SCA claim but denied petitioners' motion for summary judg- ment on the Fourth Amendment claims. Quon v. Arch Wireless Operating Co., 445 F. Supp. 2d 1116 (CD Cal. 2006). [***15] Relying on [**224] the plurality opinion in O'Connor v. Ortega, 480 U.S. 709, 711, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), the District Court determined that Quon had a reasonable expectation of privacy in the content of his text messages. Whether the audit of the [*2627] text messages was nonetheless reasonable, the District Court concluded, turned on Chief Scharf's intent: "[I]f the purpose for the audit was to determine if Quon was using his pager to 'play games' and 'waste time,' then the audit was not constitutionally reasonable"; but if the audit's purpose "was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work-related costs, . . . no constitutional violation occurred." 445 F. Supp. 2d, at 1146. The District Court held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court ac- cordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor.

The United States Court of Appeals for the Ninth Circuit reversed in part. 529 F.3d 892 (2008). The panel agreed with the District Court that Jeff Quon had a reasonable expectation [***16] of privacy in his text messages but disagreed with the District Court about whether the search was

• reasonable. Even though the search was conducted for "a legitimate work-related rationale," the Court
• f Appeals concluded, it "was not reasonable in scope." Id., at 908. The panel disagreed with the

District Court's observation that "there were no less-intrusive means" that Chief Scharf could have used ?to verify the efficacy of the 25,000 character limit . . . without intruding on [respondents'] Fourth Amendment rights." Id., at 908-909. The opinion pointed to a "host of simple ways" that the chief could have used instead of the audit, such as warning Quon at the beginning of the month that his future messages would be audited, or asking Quon himself to redact the transcript of his messages. Id., at 909. The Court of Appeals further concluded that Arch Wireless had violated the SCA by turning over the transcript to the City. The Ninth Circuit denied a petition for rehearing en banc. Quon v. Arch Wireless Operating Co., 554 F.3d 769 (2009). Judge Ikuta, joined by six other Circuit Judges, dissented. Id., at 774-779. Judge Wardlaw concurred in the denial of rehearing, defending the panel's [***17] opinion against the

• dissent. Id., at 769-774.

This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals' holding that they violated the Fourth Amendment. 558 U.S. ___, 130 S. Ct. 1011, 175 L. Ed. 2d 617 (2009). The petition for certiorari filed by Arch Wireless challenging the Ninth Circuit's ruling that Arch Wireless violated the SCA was denied. USA Mobility Wireless, Inc. v. Quon, 558 U.S. ___, 130 S. Ct. 1011, 175 L. Ed. 2d 618 (2009). II [**LEdHR1] [1]The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." It is well settled that the Fourth Amendment's protection extends beyond the sphere of criminal

• investigations. Camara v. Municipal Court of City and County of San Francisco, [**225] 387 U.S.

523, 530, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). "The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government," without regard to whether the government actor is investigating crime or performing another func-

• tion. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613-614, 109 S. Ct. 1402, 103 L. Ed.

2d 639 (1989). The Fourth Amendment applies as well when the Government [***18] acts in its capacity as an employer. [*2628] Treasury Employees v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The Court discussed this principle in O'Connor. There a physician employed by a state hospital alleged that hospital officials investigating workplace misconduct had violated his Fourth Amend- ment rights by searching his office and seizing personal items from his desk and filing cabinet. All Members of the Court agreed with the general principle that [**LEdHR2] [2]"[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." 480 U.S., at 717, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); see also id., at 731, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (Scalia, J., concurring in judgment); id., at 737, 107 S. Ct. 1492, 94

• L. Ed. 2d 714 (Blackmun, J., dissenting). A majority of the Court further agreed that " 'special needs,

beyond the normal need for law enforcement,' " make the warrant and probable-cause requirement impracticable for government employers. Id., at 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality

• pinion) (quoting New Jersey v. T. L. O., 469 U.S. 325, 351, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)

(Blackmun, J., concurring in judgment); 480 U.S., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (opinion

• f Scalia, J.) (quoting same).

The O'Connor Court did disagree on the proper analytical framework for Fourth Amendment claims against government [***19] employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because "some government offices may be so open to fellow employees

• r the public that no expectation of privacy is reasonable," id., at 718, 107 S. Ct. 1492, 94 L. Ed. 2d

714, a court must consider "[t]he operational realities of the workplace" in order to determine whether an employee's Fourth Amendment rights are implicated, id., at 717, 107 S. Ct. 1492, 94 L. Ed. 2d 714. On this view, "the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." Id., at 718, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Next, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Id., at 725-726, 107

• S. Ct. 1492, 94 L. Ed. 2d 714.

Justice Scalia, concurring in the judgment, outlined a different approach. His opinion would have dispensed with an inquiry into "operational realities" and would conclude "that the offices of gov- ernment employees . . . are covered by Fourth Amendment protections as a general matter." Id., at 731, 107 S. Ct. 1492, 94 L. Ed. 2d 714. But he would also have held "that government searches [***20] to retrieve work-related materials or to investigate violations of workplace rules--searches of the sort that are regarded as reasonable and normal in [**226] the private-employer context--do not violate the Fourth Amendment." Id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Later, in the Von Raab decision, the Court explained that "operational realities" could diminish an employee's privacy expectations, and that this diminution could be taken into consideration when assessing the reasonableness of a workplace search. 489 U.S., at 671, 109 S. Ct. 1402, 103 L. Ed. 2d

• 639. In the two decades since O'Connor, however, the threshold test for determining the scope of an

employee's Fourth Amendment rights has not been clarified further. Here, though they disagree on whether Quon had a reasonable expectation of privacy, both petitioners and respondents start from the premise that the O'Connor plurality controls. See Brief for Petitioners 22-28; Brief for Re- spondents 25-32. It is not necessary to resolve whether that premise is correct. The case can be de- cided by determining that the search was [*2629] reasonable even assuming Quon had a reasonable expectation of privacy. The two O'Connor approaches--the plurality's and Justice Scalia's--therefore lead to the same result [***21] here. III A Before turning to the reasonableness of the search, it is instructive to note the parties' disagree- ment over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City's Com- puter Policy stated that "[u]sers should have no expectation of privacy or confidentiality when using" City computers. App. to Pet. for Cert. 152a. Chief Scharf's memo and Duke's statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke's later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private.

At this point, were we to assume that inquiry into "operational realities" were called for, compare O'Connor, 480 U.S., at 717, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion), withid., at 730-731, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (opinion of Scalia, J.); see also id., at 737-738, 107 S. Ct. 1492, 94

• L. Ed. 2d 714 (Blackmun, J., dissenting), it would be necessary to ask whether Duke's statements

could be taken as announcing [***22] a change in OPD policy, and if so, whether he had, in fact or appearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state

• pen records laws. See Brief for Petitioners 35-40 (citing Cal. Public Records Act, Cal. Govt. Code
• Ann. § 6250 et seq. (West 2008)). These matters would all bear on the legitimacy of an employee's

privacy expectation. The Court must proceed with care when considering the whole concept of privacy expectations in communi [**227] cations made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), overruled by Katz v. United States, 389 U.S. 347, 353, 88 S.

• Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, the Court relied on its own knowledge and experience to

conclude [***23] that there is a reasonable expectation of privacy in a telephone booth. See id., at 360-361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations en- joyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it

• ften increases worker efficiency. See Brief for Electronic Frontier [*2630] Foundation et al. 16-20.

Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their elec- tronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del. Code Ann., Tit. 19, § 705 (2005); Conn. Gen. Stat. Ann. § 31-48d (West 2003)). At present, [***24] it is uncertain how workplace norms, and the law's treatment of them, will evolve. Even if the Court were certain that the O'Connor plurality's approach were the right one, the Court would have difficulty predicting how employees' privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U.S., at 715, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of

• privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one

could counter that employees who need cell phones or similar devices for personal matters can pur- chase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees' privacy expectations vis-a-vis employer-provided technological equipment might have implications for future [***25] cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent

• n the pager provided to him by the City; second, petitioners' review of the transcript constituted a

search within the meaning of the Fourth Amendment; and third, the principles applicable to a gov- ernment employer's search of an employ [**228] ee's physical office apply with at least the same force when the employer intrudes on the employee's privacy in the electronic sphere. B Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. [**LEdHR3] [3]Although as a general matter, warrantless searches "are per se unreasonable under the Fourth Amendment," there are "a few specifically established and well-delineated exceptions" to that general

• rule. Katz, supra, at 357, 88 S. Ct. 507, 19 L. Ed. 2d 576. The Court has held that the " 'special needs'

" of the workplace justify one such exception. O'Connor, 480 U.S., at 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (Scalia, J., concurring in judgment); Von Raab, 489 U.S., at 666-667, 109 S. Ct. 1384, 103 L. Ed. 2d 685. Under [***26] the approach of the O'Connor plurality, [**LEdHR4] [4]when conducted for a "noninvestigatory, work-related purpos[e]" or for the "investigatio[n] of work-related misconduct," a government employer's warrantless search is reasonable if it is " 'justified at its inception' " and if " 'the measures adopted are reasonably related to the objectives of the search and not excessively in- trusive in light of' " the circumstances giving rise to the search. 480 U.S., at 725-726, 107 S. Ct. 1492, 94 L. Ed. 2d 714. The search here satisfied the standard of the O'Connor plurality and was reasonable under that approach. [*2631] The search was justified at its inception because there were "reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose." Id., at 726, 107 S. Ct. 1492, 94 L. Ed. 2d 714. As a jury found, Chief Scharf ordered the search in order to de- termine whether the character limit on the City's contract with Arch Wireless was sufficient to meet the City's needs. This was, as the Ninth Circuit noted, a "legitimate work-related rationale." 529 F.3d at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the [***27] City was not paying for extensive personal communications. As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging

• r personal use. The review was also not " 'excessively intrusive.' O'Connor, supra, at 726, 107 S. Ct.

1492, 94 L. Ed. 2d 714 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were effica-

• cious. And it is worth noting that during his internal affairs investigation, McMahon redacted all

messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review

• f the transcripts.

[**229] Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, [**LEdHR5] [5] the extent of an expectation is relevant to assessing [***28] whether the search was too intrusive. See Von Raab, supra, at 671, 109 S. Ct. 1384, 103 L. Ed. 2d 685; cf. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654-657, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might re- quire the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises--and given that Quon had received no assurances of privacy--Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team's performance in particular emergency situations. From OPD's perspective, the fact that Quon likely had only a limited [***29] privacy expecta- tion, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon's life. OPD's audit of messages on Quon's employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon's life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude [*2632] on such matters. The search was permissible in its scope. The Court of Appeals erred in finding the search unreasonable. It pointed to a "host of simple ways to verify the efficacy of the 25,000 character limit . . . without intruding on [respondents'] Fourth Amendment rights." 529 F.3d at 909. The panel suggested that Scharf "could have warned Quon that for the month of September he was forbidden from using his pager for personal commu- nications, and that the contents of all his messages would be reviewed to ensure the pager was used

• nly for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past

usage, it could have [***30] asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript." Ibid. This approach was inconsistent with controlling precedents. [**LEdHR6] [6] This Court has "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment." Vernonia, supra, at 663, 115 S. Ct. 2386, 132 L. Ed. 2d 564; see also, e.g.,

• Bd. of Educ. v. Earls, 536 U.S. 822, 837, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002); Illinois v.

Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983). That rationale ?could raise insuperable barriers to the exercise of virtually all search-and-seizure [**230] powers," United States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976), because "judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished," Skinner, 489 U.S., at 629, n. 9, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (internal quotation marks and brackets omitted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assuming there were ways that OPD could have performed the search that would have been less [***31] intrusive, it does not follow that the search as conducted was unreasonable.

Respondents argue that the search was per se unreasonable in light of the Court of Appeals' conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon's text

• messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct

to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners' actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amend-

• ment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U.S. 164, 168, 128 S. Ct.

1598, 170 L. Ed. 2d 559 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (rejecting argument that if state law forbade police search of individual's garbage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning

• ver the transcript, [***32] would have violated the law. The otherwise reasonable search by OPD

is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts. Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O'Connor plurality. [*2633] 480 U.S., at 726, 107 S. Ct. 1492, 94 L. Ed. 2d 714. For these same reasons--that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification--the Court also concludes that the search would be "regarded as reasonable and normal in the private-employer context" and would satisfy the approach of Justice Scalia's concurrence. Id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon's Fourth Amendment rights. C Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text messages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message [***33] he knowingly sends to someone's employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. [**231] Respondents argue that because "the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents." Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unrea- sonable as to Quon's correspondents. See id., at 65-66. In light of this litigating position and the Court's conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these

• ther respondents cannot prevail.

* * * Because the search was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this

• pinion.

It is so ordered. CONCUR BY: Stevens, Scalia

CONCUR Justice Stevens, concurring. Although I join the Court's opinion in full, I write separately to highlight that the Court has sen- sibly declined to resolve whether the plurality [***34] opinion in O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), provides the correct approach to determining an employee's reasonable expectation of privacy. See ante, at ____, 177 L. Ed. 2d, at 226. Justice Blackmun, writing for the four dissenting Justices in O'Connor, agreed with Justice Scalia that an employee enjoys a reasonable expectation of privacy in his office. 480 U.S., at 737, 107 S. Ct. 1492, 94 L. Ed. 2d 714. But he advocated a third approach to the reasonable expectation of privacy inquiry, separate from those proposed by the O'Connor plurality and by Justice Scalia, see ante, at ____, 177 L. Ed. 2d, at

• 225. Recognizing that it is particularly important to safeguard "a public employee's expectation of

privacy in the workplace" in light of the "reality of work in modern time," 480 U.S., at 739, 107 S. Ct. 1492, 94 L. Ed. 2d 714, which lacks "tidy distinctions" between workplace and private activities, ibid., Justice Blackmun argued that "the precise extent of an employee's expectation of privacy often turns on the nature of the search," id., at 738, 107 S. Ct. 1492, 94 L. Ed. 2d 714. And he emphasized that courts should determine this expectation in light of the specific facts of each particular search, rather than by announcing a categorical standard. See id., at 741, 107 S. Ct. 1492, 94 L. Ed. 2d 714. For the reasons stated at page ____ of the Court's opinion, 177 L. Ed. 2d, at 228, it is clear [***35] that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should [*2634] have understood that all of his work-related actions--including all of his commu- nications on his official pager--were likely to be subject to public and legal scrutiny. He therefore had

• nly a limited expectation of privacy in relation to this particular audit of his pager messages.

Whether one applies the reasoning from Justice O'Connor's opinion, Justice Scalia's concurrence, or Justice Blackmun's dissent* in O'Connor, the result [**232] is the same: The judgment of the Court

• f Appeals in this case must be reversed.

* I do not contend that Justice Blackmun's opinion is controlling under Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), but neither is his approach to evaluating a reasonable expectation of privacy foreclosed by O'Connor. Indeed, his approach to that inquiry led to the conclusion, shared by Justice Scalia but not adopted by the O'Connor plurality, that an employee had a reasonable expectation of privacy in his office. See O'Connor

• v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (plurality opinion). But

Justice Blackmun would have applied the Fourth Amendment's warrant and probable-cause requirements [***36] to workplace investigatory searches, id., at 732, 107 S. Ct. 1492, 94 L.

• Ed. 2d 714 (dissenting opinion), whereas a majority of the Court rejected that view, see id., at

722, 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94

• L. Ed. 2d 714 (Scalia, J., concurring in judgment). It was that analysis--regarding the proper

standard for evaluating a search when an employee has a reasonable expectation of priva- cy--that produced the opposite result in the case. This case does not implicate that debate be- cause it does not involve an investigatory search. The jury concluded that the purpose of the audit was to determine whether the character limits were sufficient for work-related messages. See ante, at ____, 177 L. Ed. 2d, at 224.

Justice Scalia, concurring in part and concurring in the judgment. I join the Court's opinion except for Part III-A. I continue to believe that the "operational realities" rubric for determining the Fourth Amendment's application to public employees invented by the plurality in O'Connor v. Ortega, 480 U.S. 709, 717, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), is standardless and unsupported. Id., at 729-732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (Scalia, J., concur- ring in judgment). In this case, the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued [***37] pagers, but whether it applies in general to such messages on employer-issued pagers. See id., at 731, 107 S. Ct. 1492, 94

• L. Ed. 2d 714.

Here, however, there is no need to answer that threshold question. Even accepting at face value Quon's and his co-plaintiffs' claims that the Fourth Amendment applies to their messages, the city's search was reasonable, and thus did not violate the Amendment. See id., at 726, 107 S. Ct. 1492, 94 L.

• Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (Scalia, J., concurring in

judgment). Since it is unnecessary to decide whether the Fourth Amendment applies, it is unnecessary to resolve which approach in O'Connor controls: the plurality's or mine.* That should end the matter. * Despite his disclaimer, ante, at ____, n., 177 L. Ed. 2d, at 231 (concurring opinion), Jus- tice Stevens' concurrence implies, ante, at ____ - ____, 177 L. Ed. 2d, at 231-232, that it is also an open question whether the approach advocated by Justice Blackmun in his dissent in O'Connor is the proper standard. There is room for reasonable debate as to which of the two approaches advocated by Justices whose votes supported the judgment in O'Connor--the plu- rality's and mine--is controlling under Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). But unless O'Connor is overruled, it is assuredly false that a test that [***38] would have produced the opposite result in that case is still in the running. The Court concedes as much, ante, at ____, ____ - ____, 177 L. Ed. 2d, at 226, 228-231, yet it inexplicably interrupts its analysis with a recitation of the parties' arguments concerning, and an [*2635] excursus on the complexity and consequences of answering, that admittedly irrelevant threshold question, ante, at ____ - ____, 177 L. Ed. 2d, at 226-228. That discussion is unnecessary. (To whom do we owe an additional explanation for declining to decide an issue, once we have ex- plained that it makes no difference?) It also seems to me exaggerated. Applying the Fourth Amendment to new technologies may sometimes be difficult, [**233] but when it is necessary to decide a case we have no choice. The Court's implication, ante, at ____, 177 L. Ed. 2d, at 225, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)--or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions--is in my view in-

• defensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty.

Worse still, the digression is self-defeating. Despite the Court's insistence that it [***39] is agnostic about the proper test, lower courts will likely read the Court's self-described "instructive" expatiation on how the O'Connor plurality's approach would apply here (if it applied), ante, at ____ - ____, 177 L. Ed. 2d, at 226-227, as a heavy-handed hint about how they should proceed. Litigants will do likewise, using the threshold question whether the Fourth Amendment is even implicated as a basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees' use of electronic media. In short, in saying why it is not saying more, the Court says much more than it should.

The Court's inadvertent boosting of the O'Connor plurality's standard is all the more ironic be- cause, in fleshing out its fears that applying that test to new technologies will be too hard, the Court underscores the unworkability of that standard. Any rule that requires evaluating whether a given gadget is a "necessary instrumen[t] for self-expression, even self-identification," on top of assessing the degree to which "the law's treatment of [workplace norms has] evolve[d]," ante, at ____, 177 L.

• Ed. 2d, at 227, is (to put it mildly) unlikely to yield objective [***40] answers.

I concur in the Court's judgment. REFERENCES U.S.C.S., Constitution, Amendment 4 27 Moore's Federal Practice § 641.182 (Matthew Bender 3d ed.) 2 Search and Seizure § 33.19 (Matthew Bender) L Ed Digest, Search and Seizure §§7, 9.7 L Ed Index, Search and Seizure Fourth Amendment's prohibition of unreasonable search and seizure as applied to administrative inspections of private property--Supreme Court cases. 69 L. Ed. 2d 1078. Supreme Court's views as to the federal legal aspects of the right of privacy. 43 L. Ed. 2d 871.

The County Attorney As Employer RUNNING AN EFFECTIVE COUNTY ATTORNEY’S OFFICE Jeffrey A. Klatzkow Collier County Attorney

FLORIDA IS AN AT WILL STATE

Florida employment law is based on the general rule that any employee may be discharged by the employer,

• r may leave the job, for any reason whatsoever, or for

no reason. Likewise, the employee is free to quit a job at any time without any reason and without any notice. THERE DOES NOT HAVE TO BE A REASON FOR FIRING OR FOR QUITTING.

But Here’s the Rub!

All employers are covered by federal and state laws governing employment relations. You cannot discharge

• r

take any adverse employment action that violates these laws, or retaliates against an employee making a claim under these laws.

A Brief Listing of Some of the Laws Governing Employment

• Labor Management Relations Act of 1947
• Employee Retirement Income Security Act of 1973
• Consolidated Omnibus Budget Reconciliation Act of 1985
• Civil Rights Acts of 1866, 1964, and 1991
• Sections 1981 through 1988 of Title 42 of the United States Code
• Americans with Disabilities Act of 1990
• Fair Labor Standards Act, Age Discrimination in Employment Act of 1967
• Family and Medical Leave Act of 1993
• Florida Civil Rights Act of 1992

There’s More.

• The Florida Equal Pay Act, Section 725.07, Florida Statutes
• Equal Pay Act of 1963, The Occupational Safety and Health Act
• The Florida Whistleblower Act, Section 448.102, Florida Statutes
• Florida's Workers' Comp. Anti-Retaliation Provision, Section 440.205, Florida

Statutes, Florida's Wage Rate Provision, Section 448.07, Florida Statutes

• The Rehabilitation Act of 1973
• The Health Maintenance Organization Act of 1973
• The Immigration Reform and Control Act of 1986
• Executive Order 11141, Executive Order 11246, Executive Order 11375

Purpose of Today’s Discussion

Impossible to do Labor Law in

50 minutes. This discussion is about running an effective County Attorney’s Office, being aware of these labor laws, and focusing on the following two

• verriding

themes:

Two Primary Themes

• In running an Office, hire people with both

good attitudes and aptitudes, train them, supervise them, hold them personally responsible for the quality of their work, and treat everyone fairly and equally.

• In working in an Office, understand that no
• ne owes you a living, and that you are

responsible for and the master of your own career.

The Manager’s Role

A manager’s role is somewhat paternal or maternal in nature. You are here in large part to nurture your employees and put them in positions where they can succeed with minimal supervision. There is no single right way to manage people. Much will depend upon your personal way of doing things, and the culture of the Office which you wish to

• inculcate. There are many wrong ways to manage

people, however.

Coke or Pepsi? The Coca Cola Company, headquartered in Atlanta, has had for many years a corporate culture

• f bringing good people into the
• rganization, developing them, and

retaining them.

Coke or Pepsi?

The Pepsi Cola Company, headquartered in New York Metro, has had for many years a corporate culture of bringing good people into the organization, learning everything they can from them, and when there is nothing new left to learn, terminating them.

Understanding the Relationship

The County Attorney’s role is generally defined in his or her contract with the Board County Commissioners. Some counties have County Attorney Ordinances that further define the role of the position and the Office. The contracts and ordinances generally authorize the County Attorney to retain staff to assist him or her in their responsibilities to the Board and County Staff.

Random Thought No.1

People who work for you are not your friends!

• Friends do not tell friends what to do.
• Friends do not discipline friends.
• Friends do not fire friends.

Treat an employee as a friend and they will feel betrayed when you discipline, or worse, fire them. And your other employees will resent you for not being their friend.

Who does what: Defining Each Position’s Responsibilities and Expectations

First, we create an organizational chart An organizational chart is a diagram that shows the structure of an

• rganization and the relationships and

relative ranks between people within an organization.

County Attorney Jeffrey A. Klatzkow Of Counsel David C. Weigel Deputy County Attorney Scott R. Teach

Land Use / Transportation Litigation General Services

Section Chief Heidi F. Ashton-Cicko

• Asst. County Attorney

Marjorie M. Student

• Asst. County Attorney

Jeff E. Wright Section Chief Jacqueline W. Hubbard

• Asst. County Attorney

Ellen T. Chadwell

• Asst. County Attorney

William E. Mountford

• Asst. County Attorney

Robert N. Zachary Section Chief Open

• Asst. County Attorney

Colleen M. Greene

• Asst. County Attorney

Jennifer A. Belpedio

• Asst. County Attorney

OPEN

County Attorney Deputy County Atty

Legal Assistant / Paralegal Virginia Neet Legal Secretary Tamara Althouse Legal Admin. Secretary Ana Andrade Legal Admin. Secretary Kathleen Martinson Legal Assistant / Paralegal Thomas Baratta Legal Assistant / Paralegal Kathryn M. Nell Legal Secretary Marcela Walsh Legal Secretary Odalys Valdes

Litigation Administrative

Collier County Attorney’s Office

4/24/08

Legal Secretary Rosa Villarreal Legal Assistant / Paralegal Wanda Rodriguez

Land Use / Transportation

Legal Ofc Administrator Deborah A. Allen

General Services

Legal Assistant / Paralegal Marian R Colli Legal Secretary Kathynell Crotteau Legal Secretary Nancy Bradley Legal Assistant / Paralegal Sandra Herrera Legal Admin. Secretary Louise Chesonis Legal Secretary Gail Bonham

Houston, We Have A Problem

Prior to 2008, our Office’s average

turnaround for an RLS (Request for Legal Services) was 11 days, with 3% of all RLS’s being processed in 48 hours or less. This was unacceptable.

End of Problem

After a challenging few months, we

increased this to an 80% completion rate on processing RLS’s within 48 hours of receipt. For the past few years, we have averaged 92%. One admin has the ongoing responsibility

• f monitoring this and “reminding”

attorneys of their deadlines.

The Pareto Principle aka, the 80-20 Rule

The Pareto principle (also known as the 80–20 rule, or the law of the vital few) states that, for many events, roughly 80% of the effects come from 20% of the causes. Business Application: 80% of your profits come from 20% of your customers 80% of your complaints come from 20% of your customers 80% of your profits come from 20% of the time you spend 80% of your sales come from 20% of your products 80% of your sales are made by 20% of your sales staff You can make dramatic improvements in your Office’s efficiency by focusing on your most effective people and retraining or eliminating the rest.

Collier County Attorney’s Office

County Attorney Jeffrey A. Klatzkow Deputy County Attorney Scott R. Teach Managing Assistant County Attorney Heidi F. Ashton-Cicko Legal Ofc Administrator Deborah D. Allen

• Asst. County Attorney

Colleen M. Greene

• Asst. County Attorney

Open

• Asst. County Attorney

Jennifer A. Belpedio

• Asst. County Attorney

Emily R. Pepin

• Asst. County Attorney

Kevin L. Noell Legal Assistant / Paralegal Thomas Baratta Marian Colli Sandra Herrera Virginia Neet Kathryn Nell Wanda Rodriguez Legal Secretary Tamara Althouse Gail Bonham Nancy Bradley Kathynell Crotteau Rosa Villarreal

500 1000 1500 2000 2500 3000 3500 4000 FY 07 FY 08 FY 09 FY 10 FY 11

2867 2976 3889 3515 3149

Total RLSs Received

Random Thought No. 2

Your co-workers are not your friends! Whether you like it or not, you are in a daily competition to move ahead in the Office hierarchy. You all know who is next in line. People will look for an

• pportunity to undercut you to get ahead, and will turn on

a dime and take desperate measures if they think their job is in peril. The same holds true for staff. Chickens understand this. Wolves understand this. Don’t believe me? Watch Survivor or Big Brother or the Nature Channel.

Job Description

• 1. What is a job description?

A job description is a statement of the purpose, tasks, duties and responsibilities of a position.

• 2. What is the purpose of job description? Dual purpose:

An employee uses a job description to understand what is expected from them. A manager uses a job position:

• As a starting point for recruitment.
• To clearly delineate work assignments and detect overlaps or

gaps in those assignments.

• As a basis for developing performance plans, and to evaluate

work performance.

• To make decisions concerning reorganizations/realignments/

reductions in force.

You pay for the position, not the person; create justifiable pay scales

Everyone has a budget. If you overpay for one position, you must underpay for another. Think of it as an NFL team with a salary cap. Each position in your Office has a defined value to your Office. A good litigator is likely worth much more to you than someone who is good with the Parks & Rec. and the Head Librarian.

Use market comps to assist you in creating a fair compensation system. Your employees will share information as to what they are all earning.

* * * * *

If everyone is happy with their compensation, you are overpaying. If people are leaving, you are underpaying. If everyone whines every now and then, you are probably paying about what you should.

Not All Experience Is Equal

If a particular job in your Office has a year long learning curve, and a particular employee has been at it for 10 years, they do not have 10 years worth of experience; they have 1 year of experience, which they have relearned over and

• ver again.

Consider hiring people with diverse careers as

• attorneys. You already have a wealth of local

government knowledge.

Filling the Org Chart: Recruitment and Hiring

Employee Handbook

Every employer should have an Employee

• Handbook. Use what your County Manager uses, with

minor revisions to suit a professional office. Your revisions should include:

• A probationary provision: It’s simply easier to let someone

go before the end of a probationary period. If after 6 months you haven’t figured out if someone is worth keeping, you have your answer.

• An evaluation and disciplinary procedure tailored to your

Office.

Recruiting Employees and Employment Applications; what you can and cannot ask

Among the more obvious prohibited application questions:

• race or national origin, religion, age, marital status

Never reinvent the wheel. Use the standard County application but request a resume. If they can’t put together a professional resume, they’re not worth hiring. If an applicant includes information that you couldn’t normally ask for, that’s a them issue, not a you issue.

Recruiting Employees and Interview Questions; what you can and cannot ask

• Nationality: What you can't ask: Are you a U.S. citizen?

What to ask instead: Are you authorized to work in the U.S.?

• Religion: What you can't ask: Which religious holidays do

you observe? What to ask instead: Are you able to work with our required schedule?

• Age: What you can't ask: How much longer do you plan to

work? What to ask instead: What are your long-term career goals?

• Family Status: What you can't ask: Do you have any

children? What to ask instead: You'll be required to travel or work

• vertime on short notice. Is this a problem for you?
• Health and Physical Abilities: What you can't ask: Do you

have any disabilities? What to ask instead: Are you able to perform the essential functions

• f

this job with

• r

without reasonable accommodations?

• Military Service: What you can't ask: Are you a member of

the National Guard or Reserves? What to ask instead: Do you have any upcoming events that would require extensive time away from work?

Pre-employment Screening The Employee Polygraph Protection Act

* * * * * *

The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre- employment screening or during the course

• f employment. In addition, employers are

required to display the EPPA poster in the workplace for their employees.

Helpful Hint No. 1: Ensure all Required Labor Posters Are Properly Displayed

The following six postings must appear in each workplace location:

• Federal Minimum Wage
• Employee Polygraph Protection
• OSHA
• FMLA
• USERRA
• EEO

Failure to post may result in fines and tolling of limitation periods.

Background Checks The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) (codified at 15 U.S.C. Sec.1681 et seq.) regulates the collection, dissemination, and use of consumer information, including consumer credit information, and is enforced by the US Federal Trade Commission and private litigants.

Before you get a consumer report you must:

 Tell the applicant or employee that you might use information in their consumer report for decisions related to their

• employment. This notice must be in writing and in a stand-

alone format. The notice cannot be in an employment

• application. You can include some minor additional

information in the notice, like a brief description of the nature

• f consumer reports, but only if it does not confuse or detract

from the notice.  Get written permission from the applicant or employee. This can be part of the document you use to notify the person that you will get a consumer report. If you want the authorization to allow you to get consumer reports throughout the person's employment, make sure you say so clearly and conspicuously.

You must also:

Certify compliance to the company from which you are getting the applicant or employee's information. You must certify that you:

• 1. Notified the applicant or employee and got their

permission to get a consumer report;

• 2. Complied with all of the FCRA requirements; and
• 3. Will not discriminate against the applicant or

employee or otherwise misuse the information, as provided by any applicable federal or state equal

• pportunity laws or regulations.

Section 125.5801, Fla. Stat.

Criminal history record checks for certain county employees and appointees – A county may require by ordinance employment screening for any position of employment

• r

appointment which the governing body finds is critical to security or public safety.

Criminal Records and the EEOC Pre-Employment Inquiries and Arrest & Conviction

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction

• records. However, using such records could limit the

employment opportunities of some protected groups. Since an arrest alone does not necessarily mean that an applicant has committed a crime, the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the

• pportunity to explain the circumstances of the arrest(s)

and should make a reasonable effort to determine whether the explanation is reliable.

Even if:

the employer believes that the applicant did engage in the conduct for which he or she was arrested, that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when considering the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.

References

Avoid questions which could implicate Title VII, Civil Rights Act; Age Discrimination in Employment Act; Americans with Disabilities Act. Focus on questions that relate to aptitude and

• attitude. All you really want to know is

whether they can do the job, and are they pleasant to work with.

Random Thought No. 3 When hiring, look for both excellent attitude and aptitude.

Hiring the Applicant - Offer letters

When you offer a candidate a job, the offer should be formalized with a job offer letter that includes:

• Position offered
• salary
• start date
• information on employee benefits and

retirement programs Work with your HR Department for consistency.

Hiring the Applicant I-9 Employment Eligibility Verification (Or, it’s no fun being an illegal alien…)

It is against the law in the US for an employer to hire an alien who is not certified to work in this country. In particular, the following three acts are illegal:

• 1. Knowingly hiring, recruiting, or recommending

an alien who is unauthorized to work in the US.

• 2. Keeping an alien on staff after finding out that

they are unauthorized to work.

• 3. Failing to adhere to recordkeeping requirements

according to US legislation.

Form I-9

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers must complete the form. On the form, an employee must attest to his or her employment

• authorization. The employee must also present his or her employer with

acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

Hiring the Applicant Negligent Hiring

Employers have a duty to protect their employees and customers from predictable employee actions, and they can be held accountable for known facts, or those that should have been known, regarding an employee's disposition or work-related experience. Negligent hiring happens when an employer chooses not to contact a new employee's former employers, check references, and run a background check before hiring the employee. Negligent hiring is based on the theory that employers have a commitment to defend their staff and clients from harm caused by their

• employees. An employer can be found guilty of negligent hiring

practices if they have any inkling that the employee may create a hostile work environment or if they simply ignore the entire background verification process, and that employee proceeds to harm a fellow worker.

Florida’s Safe Harbor Provision for Negligent Hiring

768.096 Employer presumption against negligent hiring.— (1) In a civil action for the death of, or injury or damage to, a third person caused by the intentional tort

• f an employee, such employee’s employer is presumed not to have been negligent in hiring such

employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include: (a) Obtaining a criminal background investigation on the prospective employee under subsection (2); (b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment; (c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action; (d) Obtaining, with written authorization from the prospective employee, a check of the driver’s license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or (e) Interviewing the prospective employee. (2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request. (3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.

Training and Supervising Issues Performance Evaluations; the Bell Curve Discipline

Annual performance reviews are a key component of employee

• development. The performance

review is intended to be a fair and balanced assessment of an employee’s performance. Used to:

• Discuss job performance
• Set goals for professional

development

• Discuss expectations and

accomplishments

• Fairly award raises

Have the Client Evaluate the Attorney Assigned to Them

In our Office, each attorney generally works for several Departments. Each year, that Department Manager gives us a written performance evaluation of the attorney. Department Managers can request a new

• attorney. Attorneys who do not maintain excellent

relationships with their clients are reassigned, and if they fail in their new assignments, they have no future with us.

Training and Supervising Issues Progressive discipline; holding everyone equally accountable

Oral reprimand. As soon you perceive a worker’s performance problem, there should be an oral reprimand. Ask whether there are any long-term problems or skill deficiencies that need to be corrected. Keep detailed notes or prepare a memo to file about the conversation, in case further action is necessary. Written warning. If the problem persists, provide the employee with a written warning detailing the objectionable behavior, along with the consequences. Specify time frames for performance improvement, and state that continued failure will result in termination. Place a copy of the memo in the employee’s personnel file. Have the worker sign a copy to acknowledge receipt. Otherwise, the employee could claim that he or she never received it. Final written warning. If performance does not improve, deliver a final written warning, perhaps accompanied by probationary status for the employee. Include copies of the previous warnings, indicate specific areas in which the employee must improve and specify the time period within which the worker’s behavior or performance must be corrected. Take into consideration that these files are public records.

Helpful Hint No. 2 Dissolve Office Cliques

This isn’t High School. Office cliques have the potential to do a lot of

• harm. They inherently

alienate other employees. They create “us” vs. “them;” “insiders ” vs. “outsiders.” To keep your Office running smoothly and retain employees, work to dissolve office cliques.

Training and Supervising Issues Negligent Supervision and Retention

Negligent supervision occurs when an employer does not provide enough supervision to ensure that employees comply with Office rules and regulations. Employees have the right to file a negligent supervision claim if they are the target of violence

• r harassment on the job.

Negligent retention can occur when an employer fails to remove an employee after it becomes clear that the employee poses a danger to others. For instance, if you have been informed through rumors or sufficient evidence that an employee was sexually harassing another, it is your duty to get to the bottom of the disturbance and respond accordingly.

Training and Supervising Issues Everyone Back-slides

Everyone deserves a second chance, but don’t be surprised when (not if) they disappoint you. “But they are who we thought they were! And we let 'em off the hook!” - Former Arizona Cardinal Football Coach Dennis Green.

Random Thought No. 4 If you have persistent employment issues, the problem is you.

Some Legal Issues In the Workplace

Because after all, we’re getting CLE credits

• ut of this…

Here’s an idea…

One should treat others as one would like

• thers to treat oneself.

One should not treat others in ways that one would not like to be treated. "Never impose on others what you would not choose for yourself." – Confucius "...it has been shown that to injure anyone is never just anywhere." - Socrates, in Plato's Republic

Overtime Issues Exempt v. Non-Exempt

Exempt employees are not entitled to overtime, nonexempt employees are. Job titles are irrelevant in determining who receives overtime pay. Eligibility is based

• n occupations, wages or salaries and job duties. To be an exempt employee, you must be

paid weekly (at least $250 per week) and meet one or more of the following exemptions:

• The Executive Exemption. These workers spend at least half their time managing the

enterprise or a department within it and regularly direct two or more employees.

• The Administrative Exemption. These workers perform office or nonmanual tasks

directly related to general business operations or management policies and regularly exercise independent judgment and discretion.

• The Professional Exemption. This type of work requires advanced knowledge learned

by a prolonged course, primarily performing original or creative work in an artistic endeavor or recognized field. These professionals consistently exercise discretion and judgment.

• Outside Sales Exemption. These employees sell goods and services offsite.
• Computer Professionals. These professionals design, develop, create and test computer

systems and programs and use system analysis techniques and procedures In your Office, your attorneys are exempt, your secretaries and paralegals are not.

Overtime Pay

Non-exempt employees who are entitled to overtime pay must receive 1.5 times their regular hourly rate. Overtime pay is for all the time spent doing work benefiting the employer (whether requested or not), which could include the following:

• Staying late on the job
• Work done at home – including checking emails
• Time spent during training or safety classes
• Travel time on behalf of the employer
• Time spent on charity work, when requested by the

employer Non-exempt employees should never be required to be available by cell-phone.

Overtime? Just Say No

Absent receiving an Order to Show Cause, there should never be a reason for your support staff to work overtime. An attorney who needs

• vertime from support

staff is not properly managing their time. This is not the ER.

Helpful Hint No. 3 The Sign In/Out Sheet

Establish a sign in/out sheet for everyone to use.  Helps track everyone’s hours.  Can be used as evidence should someone file an overtime claim.  Helps you locate attorneys.  Cuts down on people arriving late, leaving early.

Florida Minimum Wage Act

The Fair Labor and Standards Act establishes the federal minimum wage, which now rests at $7.25 per hour as of July 24, 2009. However, many states, including Florida, have enacted their own minimum wage laws. Effective Jan. 1, 2013, the minimum wage in Florida is $7.79. For tipped employees, the Florida minimum wage is $4.77. Employees are entitled to the higher minimum wage, either state or federal.

Interns

Establish an intern program with a local law school. Give back to the profession, and help train tomorrow’s lawyers while setting up a recruitment file. Never, ever hire anyone out of law school without paying them at least minimum wage. Florida overtime

• r minimum wage claims allows back pay, attorneys'

fees, equitable relief, as well as an amount equal to the back pay in double damages, together with employer fines of $1,000 per overtime or minimum wage violation.

The Family Medical and Leave Act

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to: Twelve workweeks of leave in a 12-month period for: – the birth of a child and to care for the newborn child within one year of birth; – the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; – to care for the employee’s spouse, child, or parent who has a serious health condition; – a serious health condition that makes the employee unable to perform the essential functions of his or her job; – any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS Military leave and USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA 38 U.S.C. 4301-4335). Among other things, USERRA: Protects civilian job rights and benefits for veterans and members of Reserve components. Establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years. Provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment.

Florida Domestic Violence Leave Section 741.313, Fla. Stat.

Florida employers who employ 50 or more employees must

give employees who have worked for the employer for at least 3 months up to three days of leave in a twelve-month period if the employee or a family or household member is a victim of domestic violence. The requested leave may be paid or unpaid, at the employer's discretion. The employee must provide the employer with "appropriate advance notice of the leave as required by the employer's policy" except in cases of imminent danger to the health or safety of the employee or a family

• member. The employer may also require documentation of the

act of domestic violence. The law requires employers to keep confidential all information relating to leave for domestic violence.

Discrimination

Title VII specifically prohibits discrimination against job applicants and employees on the basis of race, color, religion, sex, or national

• rigin. Employers cannot make hiring and firing decisions based on

these criteria, nor can they implement policies that segregate or differentiate employees based on any of these criteria. Your County’s Employment Handbook should contain policies and procedures to help minimize Title VII claims. Follow it. If it does not, get an outside expert to draft appropriate guidelines. Make all hiring decisions solely based on aptitude and attitude. A candidate who does not possess the requisite aptitude will likely fail on a performance basis, and an applicant who does not possess a positive attitude will eventually need to be separated from your Office. Put your people in positions where they will succeed. Treat everyone equally. Be a mentor to everyone.

Disparate treatment based on religion.

Title VII’s prohibition against disparate (different) treatment based on religion generally functions like its prohibition against disparate treatment based on race, color, sex, or national origin. Disparate treatment violates the statute whether the difference is motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof. For example, except to the extent permitted by the religious organization or ministerial exceptions:

• Employers may not refuse to recruit, hire, or promote individuals of a

certain religion, impose stricter promotion requirements for persons of a certain religion, or impose more or different work requirements on an employee because of that employee’s religious beliefs or practices.

• The prohibition against disparate treatment based on religion also

applies to disparate treatment of religious expression in the workplace. For example, if you allow one secretary to display a Bible on her desk, you cannot tell another secretary to put the Quran on his desk out of view.

The Age Discrimination and Employment Act

The Age Discrimination in Employment Act of 1967, 29 U.S.C

• Sec. 621 et seq., forbids employment discrimination against anyone at

least 40 years of age. The ADEA includes a broad ban against age discrimination and also specifically prohibits:

• Discrimination in hiring, promotions, wages, or termination.
• Statements or specifications in job notices or advertisements of

age preference and limitations.

• Denial of benefits to older employees.
• Prohibits mandatory retirement in most sectors, except for

executives over age 65 in high policy-making positions who are entitled to a pension over a minimum yearly amount.

ADA issues

You are required by law to provide reasonable accommodation to qualified employees with disabilities, unless so doing will result in undue hardship to you. Reasonable accommodations can apply to the duties of the job and/or where and how job tasks are performed. The accommodation should make it easier for the employee to successfully perform the duties of the position. Examples of reasonable accommodations include modifying job duties; restructuring work sites; providing flexible work schedules or work sites (i.e. telework) and providing accessible technology or

• ther workplace adaptive equipment. Work with your HR

Department for consistency.

The Equal Pay Act

The Equal Pay Act of 1963 amended the Fair Labor Standards Act and is aimed at abolishing wage disparity based on

• sex. The law provides (in part) that no covered employer shall

discriminate between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs, the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

Florida Whistle Blower Protection Act

The Florida Whistle-Blower’s Act (Section 112.3187,

• Fla. Stat.) provides protection against employees who file a

claim against their own employers for discrimination. A “whistle-blower” is a person who reports their employer for a violation; retaliating against a whistle blower is

• illegal. Thus, employers may not fire employees simply due

to the fact that they have filed a complaint, even if it turns

• ut that the employer wasn’t liable.

Beware of employees who are facing discipline; they

• ften file a complaint in the hope you will not then

“retaliate” by terminating them.

Random Thought No. 5 Every job has a shelf life.

Stay too long, and you go stale. Do what you love to do, and if you no longer love your work, it’s time to move on. Keep in mind that the average person has 10+ jobs in their career. “But you see," said Roark quietly, "I have, let’s say, sixty years to live. Most of that time will be spent working. I’ve chosen the work I want to do. If I find no joy in it, then I’m only condemning myself to sixty years of torture. And I can find the joy only if I do my work in the best way possible to me. But the best is a matter of standards—and I set my own standards.”

• Ayn Rand, The Fountainhead

Workplace Torts

When applied to the workplace, a tort is a private or civil form of misconduct or injury imposed on an employee by the employer that is a breach of a legal duty owed by the employer to the employee. Anyone from an individual supervisor to the entire

• rganization as a whole can be held accountable for

compensatory, punitive, and consequential damages. The most frequent lawsuits include: Assault Battery Invasion of privacy Defamation

CITY OF ONTARIO, CALIFORNIA, et al., Petitioners v. JEFF QUON et al. SUPREME COURT OF THE UNITED STATES 130 S. Ct. 2619; 177 (2010)

The Quon decision teaches: An employer's computer-usage and e-mail policies can be expanded to cover other applications, such as text messages, by follow-up clarifications and memoranda The computer-usage and e-mail policy can remove any reasonable expectation of privacy by the employee Passing comments by a supervisor may reinstate the reasonable expectation of privacy But monitoring of the e-mails, text messages and the like by an employer may still be regarded as "reasonable," so long as it was (1) motivated by a legitimate work-related purpose, and (2) not excessive in scope Beware: As a local government, there may be liability under the 4th Amendment for such searches.

It’s Your Office: Reduce liability by being proactive

• Investigate all employee complaints
• Take prompt action when appropriate
• Be firm, fair and consistent

Termination (it never ends well)

It should never have had to come to this: – First try to manage the employee out of the Office. If you fail at this, be an adult and discuss your decision with them face-to-face. – Don’t send them home then fire them by letter. Let them know precisely why they are being terminated. If you have followed your progressive discipline, there will be no shock or surprise. – Conduct an exit interview with an HR person, who can explain COBRA, unemployment compensation, and other post-employment issues. – Being fired can be devastating, both to one’s ego and financially; make it as easy as possible for them to get back on their feet.

Taking Over an Existing Office That is Failing

County Attorneys who are hired (especially from

• utside the Office) may be told they need to clean out

the Office. You may even be given a number of names. You can’t change an existing Office culture without identifying and weeding out all of the people who are part of the problem. Keep in mind that these are the same people who got your predecessor fired.

Succession Planning

Succession planning enables your organization to identify talented employees and provide education to develop them for future higher level and broader responsibilities. Succession planning helps you "build bench strength." Succession planning helps you decide where people belong on the bench. “There are three wooden crosses on the right side of the highway, Why there's not four of them, now I guess we know. It's not what you take when you leave this world behind you, It's what you leave behind you when you go.”

• Randy Travis, “Three Wooden Crosses”

Budget Cuts and Layoffs

It’s easy to base layoffs on seniority. It is also foolish. You have an org chart. You have job descriptions. You have annual performance evaluations. You know who your core people are. You have a succession plan. This is why we do all

• f this.

Keep your best people, period. If you don’t, you will not

• nly be left with an inefficient Office, you will have sent a

message that you do not reward diligence, hard work and a great

• attitude. And you will be exposed as a poor administrator. Good

luck with your next contract.

Managing Outside Counsel

Local Government Issues: The silo effect. Litigation: Avoiding Death Cases. Costs: Would you rather pay through the nose and win or save a bunch of shekels and lose. Using In-House Staff to cut costs.

Final Random Thought It is better to be Kirk than Spock

* * * * * Each County has but one County Attorney. Spock never got to captain the Enterprise. And really, who had more fun? There are 67 Counties and over 400 Municipalities in Florida. Find your own ship and sail it.

Closing thoughts and questions