The facts of the case

• City of Ontario had an email and Internet policy that allowed for employer monitoring
• The manager told employees that text messages were treated same as e-mail and Internet usage, and were covered by policy
• The manager also said he would not audit any text messages over the allotted amount as long as employees paid for the overages
• Quon´s text messages went over the allotted amount and Quon paid for the overage charges
• Quon´s text messages were read to determine whether the city´s character limit was too low

What the court said?

• The court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages
• In other words, court avoided the "reasonable expectation of privacy" issue altogether
• The Court determined that search was reasonable - that is, it was motivated by a legitimate work-related purpose and was not excessive in scope and that there was no violation of Quon´s Fourth Amendment rights

Stengart v. Loving Care Agency

In the second case, says Woods, the New Jersey Supreme Court held that Marina Stengart, Executive Director of Nursing at LovingCare, Inc., had a reasonable expectation of privacy in emails that she sent to her attorney from her personal Yahoo account on a company-issued laptop.

The facts of the case

• Stengart emailed her attorney via her personal, password-protected, web-based Yahoo email account during business hours and using an employer-issued computer
• Stengart resigned and filed suit for hostile work environment
• Stengart´s emails were uncovered while the employer imaged her laptop´s hard drive to preserve evidence for discovery
• When emails were produced, Stengart moved for sanctions and to disqualify the employer´s attorneys for ethical violations

Loving Care´s electronic communications policy stated that e-mail and Internet use were not to be considered private: "the company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company´s media systems and services at any time, with or without notice."

However, the policy also stated "occasional personal use of e-mail is permitted.

"The policy specifically prohibited numerous uses of the e-mail system, such as job searching and forwarding chain mail. However, the policy was silent about communicating with attorneys.It also made no reference to communicating via personal, password-protected e-mail accounts."

What the court said?

The court ruled that Stengart had a reasonable expectation of privacy in e-mails sent between her and her attorney, via her personal Yahoo account, and that the company´s lawyers violated the Rules of Professional Conduct by failing to either promptly give notice to Stengart about the emails or to seek a judicial determination to determine whether or not the communications were privileged.

Ensure the reliability and authenticity of records throughout their period of retention.

• Create and maintain meta-data that adequately reflects the content,context, and structure of records as they were originally created
• Create and maintain system documentation.
• Maintain accurate system logs.
• Use authentication to identify the users of the system
• Restrict write permissions as appropriate.
• Create sufficient structural and contextual meta-data at the point of record creation or shortly thereafter
• Maintain appropriate links between database fields

Trying to Be Nice to People You Fire

"He´s such a good guy, I didn´t have the heart to tell him his performance wasn´t acceptable, so I told him his position was eliminated." A well-intentioned action, perhaps, and not illegal, but certainly foolish.

What happens: Your manager is going to fill that position with someone else. Then the fired employee is going to sue you, claiming that since the position wasn´t eliminated, he or she must have been fired because of race, gender, religion, age, etc. here. Your manager, on the witness stand, is going to say, "Well, that´s what I told him, but that wasn´t the real reason. There all reason was poor performance.

The jury´s going to think, "Well, there´s one thing we know," for sure the manager is a liar."

Taking Action Without Documentation

"The law doesn´t say I need documentation, does it?" No, it certainly doesn´t. But, as with the manager in the previous case, you´re going to want it.

What happens: That fired employee is going to sue you, claiming that his or her performance was fine, so he or she must have been fired because of (pick one: race, gender, religion, age). How do employees in this situation know their performance was fine?

They received "satisfactory" ratings. They were awarded raises and bonuses. No one ever mentioned to them that there was an issue of poor performance.

Ideally, your documentation will show three things:

• The employee knew of the rule that was broken or the performance standard that was not met
• The employee was aware that his or her performance was below standard.
• The employee was given the means and the opportunity to improve.

Finally, don´t trust the manager to have the documents. It´s important to actually search out the physical documents. So many times, you´re told that there´s documentation, and then when push comes to shove, the documentation can´t be found.

"Tell me about a time when you were surprised by your boss´s reaction to something you did."

Here´s an opportunity for candidates to toot their own horns and show an example of above and beyond performance. In some cases, candidates discuss situations in which their supervisor was not pleased. This can also be revealing.

"Looking for a better way is not always productive. Tell me about a time that you made a mistake by trying to improve something."

This question shows how the candidates handle themselves when the inevitable goof occurs. Let´s face it is going to happen.

"Give me an example of how you have dealt with a major change in your work environment."

My company is constantly changing and evolving. This question helps to explore the flexibility of the candidates and whether they can adapt as necessary.

Get passive. Replace active communication (face-to-face discussions and meetings) with more passive forms of communication like email and IM, which can be switched off and therefore allow people to respond on their own schedule.

And if you have a meeting coming up. If you have the power, just cancel that next meeting... Just don´t have it. I don´t mean move it; I mean, erase it from memory it´s gone. And you´ll find out that everything will be just fine.