Wednesday, August 18, 2010

Secunda & Lyon on Quon

Secunda Clyon Paul Secunda (Marquette) and Christine Lyon (Morrison & Foerster) are featured in the August 11, 2010 edition of CCH Labor Law Reports.  Both weigh in on the workplace implications of City of Ontario v. Quon.  Here's an excerpt:

Will Quon impact private employers? The case involved a public employer’s search of a public employee’s work-issued pager, but the Court’s holding may have implications that extend beyond public employment....  Analysis links reasonableness of search with private sector context. Even though Quon “punts” on the SWAT officer’s privacy expectation in his pager, the Court applies both the plurality’s test from O’Connor v Ortega, 480 US 709 (1987), as well as the concurring opinion from that same case by Justice Scalia, Secunda noted. “As parts of this analysis, the Quon Court determined, under Justice Scalia’s test from O’Connor, that the City had a legitimate reason for the search of Quon’s pager, and it was not excessively intrusive in light of the justifi cation because the search would be ‘regarded as reasonable and normal in the private-employer context,’” Secunda explained.  “So because Justice Scalia’s approach explicitly connects the reasonableness of the Quon search as also being reasonable in the private sector, look for private sector employers to contend that Quon supports expansive private employer searches to retrieve work-related materials or to investigate violations of workplace rules by employees,” he predicted. 

rb

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