December 2009 Archives

December 21, 2009

Congress Extends COBRA Subsidy

Over the weekend, the Senate passed a defense spending bill that included -- among many other things -- an extension of the COBRA premium subsidy provision that's about to expire. (You can find the entire bill at the website of the Library of Congress; search for the bill number, H.R. 3326, then skip ahead to Section 1010). The House already passed the bill, and it's been sent to the President for signing.

Currently, the COBRA subsidy allows those who are involuntarily terminated from September 1, 2008, through December 31, 2009 to receive a subsidy of 65% of their COBRA premium payments for up to nine months. The subsidy went into effect on March 1, 2009, which means that the first group of eligible folks -- those who had already lost their jobs and have been receiving the subsidy since the effective date of March 1 -- used up their nine months of subsidy coverage on November 30.

The extension would:

  • allow those who are involuntarily through February 28, 2010, to receive the COBRA subsidy, and
  • extend the subsidy period from nine months to a total of 15 months.

The extension to 15 months of subsidy eligibility also applies to those who have already used up their original nine months. For example, someone who was laid off and began receiving the COBRA subsidy on March 1, 2009, would have used up the nine months of subsidized coverage a few weeks ago. Now, that person will be eligible for an additional six months of subsidy payments. And, this coverage can be retroactive: That is, if an employee's subsidy ran out, and the employee didn't pay the full cost of COBRA coverage for December, the employee will have an opportunity to pay the lower amount to receive retroactive continuation coverage.  

December 19, 2009

Supreme Court to Hear Text Message Privacy Case

Last week, the Supreme Court announced that it would hear a case on the privacy of employee text messages, Quon v. Arch Wireless Operating Co. Although the Quon case involves a government employer, it raises a question that comes up all the time in both private and public workplaces: Are there limits to how far employers may go in monitoring their employees' electronic communications? The Quon case got a lot of press when it was initially decided by the Ninth Circuit, mostly because it's one of the very few cases in which a court said the employer had gone too far.

Jeff Quon was a segeant on the Ontario, California SWAT team. He was given a pager with wireless text-messaging capability for work, and was told that the department's email policy -- which gave the city the right to monitor, prohibited personal use, and told employees their messages were not private -- applied to the pagers. However, the lieutenant in charge of administering employee use of the pagers said something different: He told employees that each pager was allotted 25,000 characters per month, and that employee use of the pagers would not be audited as long as employees paid any overage charges for their accounts.

For eight months, the department did not audit anyone's pager messages. During this time, Quon exceeded the overage limit several times, and paid for his extra usage. When Quon and another officer again went over the limit, the chief decided to audit the use of certain pagers (including Quon's) to figure out whether the city should increase its 25,000 character allotment and whether the officers were using their pagers for personal reasons. The city asked its carrier (the Arch Wireless of the case title) to provide transcripts of the messages on the selected pagers, and found that many of Quon's messages were personal and some were sexually explicit. Quon, his wife, and two others with whom he exchanged text messages than sued for violation of their privacy rights.

The Ninth Circuit found against the city. Despite the written policy, the court found that the lieutenant's statement that he would not read their messages, combined with his practice of actually not reading messages for months, gave Quon and the others a reasonable expectation of privacy in their messages. The court also found that, even though the city's rationale for reading the messages was reasonable, it could have achieved that goal without reading the messages by, for example, warning Quon in advance that his pager would be audited, asking Quon to delete his personal messages, or asking Quon to count the work-related characters himself. Because there were less intrusive ways to find out what was going on with the pager accounts, the city's decision to read the messages was a privacy violation.

Because Quon involves a government employer, the Fourth Amendment (which prohibits unreasonable searches and seizures) applies. The Fourth Amendment doesn't protect private employees, so the court's decision in Quon won't explicitly extend to the private sector. But it will be highly influential: Courts have generally followed similar standards in analyzing privacy claims against private employers. The case will also have wide resonance because it will be the Court's first foray (as far as I can tell) into modern workplace monitoring -- the kind that involves electronic and digital communication, not phone calls and locker searches.

It's not surprising that the Ninth Circuit is one of the few courts to find in favor of an employee's privacy claim. The Ninth Circuit is still known as one of the more liberal -- and protective of civil liberties -- in the nation. And, the judges of the Ninth Circuit, themselves federal employees, have not taken kindly to the monitoring of their own communications: Almost a decade ago, the judges disabled the monitoring software on their own computer systems to protest an announced policy stating that court employees had no right to privacy in their email messages and Internet activities. That part of the policy was later withdrawn, in part because of the attention drawn to it by the Ninth Circuit protest.

If you need to create a policy for texting, email, instant messaging, or other employee communications, check out my book Smart Policies for Workplace Technologies (Nolo).

December 11, 2009

Regulatory Agenda: ADA, ADEA, FMLA, and Record Keeping Requirements

The federal agencies have released their Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions (known as the "Unified Agenda.") Twice a year, federal agencies must provide this information to let the public know what regulatory actions they're planning and to coordinate rulemaking among the agencies.

The Unified Agenda can be somewhat daunting, both in length and in jargon (OMB Watch, a nonprofit that works to promote greater transparency in federal regulatory and budget matters, has a nice guide to some of the terms used in the Unified Agenda). Each federal agency that's included in the Unified Agenda must indicate what rulemaking it has planned in coming months. The list of agencies in the current Unified Agenda is here; when you click on an agency's link, you can see its statement.

The EEOC has identified two regulatory priorities:

  1. Implementing the employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The EEOC issued proposed regulations on the ADAAA in September 2009 (you can check out my blog post reviewing the regs here), and asked for public comments to be submitted by November 23. Now, the agency must review all of those comments and come up with final regulations.
  2. Amending its regulations on the "reasonable factor other than age" defense to an age discrimination claim under the Age Discrimination in Employment Act (ADEA), an issue the Supreme Court addressed last year. (Here's my blog post on that case, Meacham v. Knolls Atomic Power Laboratory.)

The Department of Labor painted with a broader brush: It begins its regulatory plan with a sort of mission statement, lising 12 "strategic outcomes," from improving health benefits to helping injured workers return to the job, all intended to further the agency's goal of "good jobs for everyone." Here are the specific regulatory proposals that interested me:

  1. Updates to the child labor regulations.
  2. A review of the military leave provisions and the 2009 regulations interpreting the Family and Medical Leave Act (FMLA).
  3. Changes to the record keeping regulation for Fair Labor Standards Act (FLSA).