Colorado Employment Law Blog

Employers beware -- Employee Handbooks Should be Reviewed After New Jersey Supreme Court Ruling

The New Jersey Supreme Court, in Stengart v. Loving Care Angecy, Inc., 201 N.J. 300, 990 A.2d 650 (2010), (Stengart-A16-09[1]) held that a nongovernmental employee had a reasonable expectation of privacy in web-based e-mail messages between the employee and her attorneys.  In its analysis, the Court reviewed the employer’s handbook language and found that it failed to reasonably inform the employee that there was no expectation of privacy in password protected web based e-mail messages.  In so doing, the Court rejected the employer’s policy on the grounds that it failed to define whether the “use of personal, password-protected, web-based e-mail accounts via company equipment” was covered by the policy’s express terms.  This holding despite language in the policy that permitted employer access to “all matters on the company’s media systems and services at any time.”  The result of the Court’s conclusion was a determination that the employer’s counsel violated rules of professional conduct by review of attorney-client communications.

Though not adopted by others at this time, its rationale suggest employers should review the language in their handbooks to ensure that the handbooks address this important and rapidly evolving issue.

 

For more information about Steve, please click here: Steven M. Gutierrez

 

United States Supreme Court goes 5-4 to Reverse Ninth Circuit to Allow Arbitrator Rule on Unconscionability

 By Steven M. Gutierrez

The United States Supreme Court was divided 5-4 in Rent-A-Center West Inc. v. Jackson, U.S., No. 09-497, 6/21/10, and held that where an arbitration agreement delegates to an arbitrator authority to determine the enforceability of the agreement, a challenge to that delegation provision is to be resolved by a federal district court, but a challenge to the enforceability of the entire agreement must be resolved by the arbitrator.  If you have contracts that compel arbitrations subject to the Federal Arbitration Act, this decision spells out just how specific of a challenge one must make to contest the arbitrability of contracts.  It is a reminder to be specific in your challenge -- even when it appears that the whole contract was one directed at arbitration of disputes.

In this case, the contract was an employment contract with an agreement to arbitrate any dispute arising out of employment -- including discrimination claims -- but the decision appears to have broad application to all disputes governed by the Federal Arbitration Act.  The decision is consistent with existing Federal law, but the decision demonstrates how meticulous a litigant must be in order to challenge arbitration clause enforceability.  You can look at this case by following this link:  http://www.supremecourt.gov/opinions/09pdf/09-497.pdf

For more information about Steve Gutierrez, please click here.

 

City Had Right To Review Employee's Text Messages

If your employees send or receive text messages, e-mails, or otherwise communicate with modern technology while at work, a decision today from the U.S. Supreme Court could impact you. The U.S. Supreme Court unanimously decided that the City of Ontario, California did not violate an employee's Fourth Amendment privacy rights when it reviewed two months’ worth of his text messages, many of which involved non-work related matters (Click here to see the decision on the U.S. Supreme Court's website). 

To read the full article authored by Mark Wiletsky of Holland & Hart's Boulder office, follow this link:  http://www.hollandhart.com/newsitem.cfm?ID=1692

Labor & Employment Bills Before 2010 Colorado Legislature

By Tobie Hazard

The Colorado General Assembly convened January 12, 2010, and as in years past, several bills have been introduced that, if passed, would  have significant impact on Colorado employers.  The following is a summary of some of the bills that have been introduced this session, their effect on Colorado employers, and their status as of press time.  We’ll provide you an update later with any new developments.

Recent and Upcoming Supreme Court Decisions and Congressional Legislation Affecting the Employment World

 

Recently, my partner & colleague, Jim Goh wrote a chapter for a book published by Thomas Reuters/Aspatore (see http://aspatore.com/), entitled "Employment Law 2010 Top Lawyers on Trends and Key Strategies for the Upcoming Year".

 

Jim's article tells us what we might expect in the area of employment law for 2010 and beyond based upon the current trends and the influence of the Obama White House and the Democrat-controlled Congress.  In addition, Jim discusses how the movement for greatly expanded employee rights might be impacted by the current make up of the United States Supreme Court—with the addition of Chief Justice Roberts and Justice Alito in 2005 and 2006 respectively—and its slim but definitive majority vocally resistant to any perceived encroachment into corporate interests. The substitution of Justice Sotomayor for Justice Souter does not, at least in theory, appear to shake up the pro-business orientation of the court.

 

Jim explains how the first glimpses of the showdown between the pro-business Roberts Court on one side and the employee-leaning Congress and the Obama White House on the other, challenges the U.S. employer.  In order to survive these tumultuous economic times, Jim explains how the nation’s ultimate law deciders and its law makers engage in an incessant tug of war and what is the besieged employer to do. 

 

If you are interested in reading the entire article and the other articles contained in this publication, click on the following:  http://www.hollandhart.com/articles/GohChapter.pdf

 

Steven M. Gutierrez