Labor & Employment Law

Oh, that 9th Circuit. Aren't they amusing?

A three-judge panel decided that a public employer violated employees' 4th amendment rights by reading personal and sexually explicit text messages sent on employer-issued pagers.

Yesterday the whole 9th Circuit denied a petition for an en banc rehearing. That's not a major event, as it happens more often than not.

The problem is that eight of the judges wrote two new opinions, and it appears that the real problem is that the judges cannot agree on what the facts of the case are.

The facts seem to be that a police department issued pagers to members of a SWAT team to use for official business, but informally the team members were allowed to send personal messages if they reimbursed the department. The department had reason to believe the employees were violating the rules, so somebody got transcripts of the text messages and read them.

The three-judge panel held that the employees had a reasonable expectation of privacy, and that the search was unreasonable in its scope.

However, if you read the two new opinions, you have to walk away wondering, "Are all the judges reading the same record? Why is it that they cannot agree on what the facts were?"

Quon v. Arch Wireless (8th Cir 01/27/2009)
Order denying rehearing
Concurring
Dissenting
Original panel decision (06/18/2008)

Full post as published by Ross' Employment Law Blog on January 28, 2009 (boomark / email).