Before you read this article, I would like to provide a personal commentary.

As an executive recruiter for more than 20 years, I have become a great believer in maintaining your job seeking efforts during the holiday season. I can’t count how many times I received high priority assignments from clients who had to “hire before December 31 or lose budget approval.” Interviews generated in November and December can result in January’s “You’re Hired!” And believe it or not, I have had clients interviewed and hired Christmas week.

Holidays: Dead Zones for Job Seekers

With November upon us and the upcoming holidays in the air, the turf changes for hiring that can be either problematic for job seekers, or an opportunity. As a job seeker you will do much better during this season if you are prepared ahead of time for how the business environment is likely to change.

The Dead Zone is basically an acknowledgement of the behavior that the majority of businesses take during the holidays. Starting with Thanksgiving, in most businesses other than retail, there begins a massive evacuation of employees taking advantage of holiday closures to spend time with family. The week of Thanksgiving kicks off about 6 weeks of a dead zone for hiring.

While many of the businesses are open, you are typically faced with a skeletal staff and missing decision makers. The people who remain behind are there primarily to keep the gears moving, even if it is slow. The only work that tends to get done during this period is what is minimally required to ensure that the primary function of the business continues. The work that almost comes to a stop is usually strategic planning, decision making and those things not directly supporting the primary function. An example is in manufacturing companies where you will see shipping and order-taking continue, but many functions like marketing, sales and support functions are all on hold.

What this means for you is that hiring is one of those activities that will come to such a crawl it looks like there is no hiring at all. For some companies, they will only pursue hiring where there is a critical need AND the hiring manager is available enough in that 6-week period to actually make some progress.

During this dead zone, you are facing 3 weeks with fewer work days, which makes those weeks primary targets for vacations, plus a week or two on both sides of it, if they are banking their hours. For the remaining days, those are usually spent “playing catch up”. Does any of this sound familiar?

The meaning for you, if you’re a job seeker, is that for the vast majority of businesses, you can’t expect too much activity around hiring. If you have an interview the week before Thanksgiving, you’ll be lucky for a decision to get made for 2-3 weeks, at best. If you’re fortunate enough to get an interview in early December, a decision probably won’t get made until the second week of January, if all goes well. Most likely, it would be the third week in January.

Does that mean you should absolutely back off during the dead zone? Not necessarily. If you are working your network, you might find that they have idle time on their hands, making it worth your effort to take advantage of the slow time in the office. The warning is mostly around your expectations of the process. You can’t expect many hiring decisions to be taking place. Resume processing will be sluggish and then there will be a glut of paper to be processed on the other side of the holidays. The opportunity is that if someone is around, you will do well to make contact, which is super because you might be the thing that will break up a boring day.

Mostly, you need to set your expectations that people won’t be around, won’t be available, and won’t be checking voicemail or email and what little processing is going on, will be painfully slow.

There is a bright light in the holiday seasons and that is retail. If you are up for temporary holiday work, now is the time to start filling out company applications. Many times those jobs turn into permanent positions, making it well worth your time to get on board. Even if it doesn’t turn into a job after the holidays, it will bring in income and fill the time productively while the rest of the companies are going into a holiday sugar coma.

Keep in mind that there is more to retail than the store fronts. The bigger retailers have warehouse, stocking and other support functions that are also needed. Extending from the retailers are the logistics and shipping companies that also have to add additional staff to support all of the shipping and order taking. The holiday season can create opportunities for getting a job, as long as you are willing to look. With a bit of creativity and investigation, you will discover a number of businesses that increase their staff in order to accommodate the various demands of the season.

If you are unemployed, this can also be a prime time to seek out a volunteer opportunity that will capitalize on your skills. Just like the businesses that increase their activities this time of year, the same type of cycle of decrease and increase happens in the nonprofit universe. Volunteering will help you fill gaps in your resume, increase your network and make you feel great.

The holidays do present a challenge for job seekers, especially if the industry you are focusing on is one with a clear dead zone. That doesn’t mean you stop everything, but it does mean you should think through what is apt to happen until after the first of the year and modify your plan accordingly.

—Career Rocketeer

MARTIN WEITZMAN, NCRW, RPBS, IJCTC
(800) 967-3846
resumepro
http://executiveresumewriter.com

A MONTHLY PUBLICATION OF GILBERT RESUMES, FEATURING TIMELY CAREER ARTICLES, CAREER WEBSITES, AND SUGGESTIONS FOR TODAY’S JOB SEEKERS.

Why NOW is the Best Time to Write Your Resume

Imagine for a moment that you’ve just heard the dreaded words, “We’re going to have to let you go.” A lot of people have heard this phrase over the last couple years, and most have probably reacted with some degree of panic: How am I going to pay my bills? Where am I going to go? What am I going to do?

Panic Mode is Not the Right Time
Obviously, this frame of mind is not a great launching point for your next job or your job search. Writing an effective resume and cover letter requires analytical thinking and confidence in your abilities. So let me tell you a little secret: the best time to write your resume is when you’re perfectly happy at your job!

Keeping Track of Your Accomplishments

I’m not saying that you should have a perfectly marketable document ready to go every moment of your life, although that’s not a bad idea. I am suggesting that it’s smart to keep a running list for yourself of all your different jobs and what you’ve accomplished at each. There are several reasons for this. First, it’s easy to forget three years later that you wrote the proposal that won your company a $500,000 project.

Second, quite often your company doesn’t publish or share numbers that reflect your contribution to their success. For instance, while you may be well aware that your efforts expanded a new store from just yourself to a staff of 25 employees, that information will probably never make it onto the company’s Web site.

Preparing for the Unexpected

Perhaps the best reason to keep a running career document for yourself is that if you do unexpectedly find yourself out of work, you won’t have to rack your brain to remember details from your professional past. It can be particularly hard to ascertain measurable results when you no longer have access to a company’s documents. By keeping track of your work accomplishments on an ongoing basis, you have the ability to go through your list and pull out the key highlights anytime you need them-like when you’re frantically searching for a new job.

—Career Rocketeer

Finding Your Targets with LinkedIn

Anyone who’s been using LinkedIn for their job search for a while understands the great value it can be. It’s tremendous for creating a profile in order to be found, for finding contacts at companies you are pursuing, and for preparing for an interview by learning about your interviewer and others at the organization.

However, people often miss another way LinkedIn can be used to help them greatly in pursuing their job search with a more laser-like focus . . . it can be a terrific resource for researching roles and finding companies to pursue that may have those types of roles.

Here are some tips that may help . . .

Use the “Advanced Search” function to do a keyword search of skills.

The people that come up in your search are people with skills listed that you search. Read how they describe their jobs to see which ones look appropriate, realistic, and interesting to you. That helps you begin to define the types of positions you would like to target.

Search titles to find companies! Once you’ve narrowed the titles of positions you are pursuing, you can find companies that have employees with those titles. Simply do a search, within your geographic area, or more broadly of those titles. That helps you begin to define your target list of companies you may like to pursue.

Use combinations to narrow your search. If you are pursuing a broadly used title (i.e. Business Analyst), you will likely need to narrow your results by using combinations of keywords of skills, title, and location.

I got a contact name . . . How do I reach them????

People often tell me they were on LinkedIn, or went to a networking group, or met someone when they were out-and-about and got a name of a potential contact for their job search, but don’t know how to reach them.

Here are some ideas and techniques to make those connections:

~ Call the main number! Often people forget the simplest and most obvious solution to getting in touch with a new contact . . . call the company and ask for them! Generally a phone receptionist won’t put you through to anyone if you ask a general question like “May I speak to the Accounting Manager, please?” However, if you ask for someone by name, they will always put you through.

Additionally, if you call after business hours, many companies have an automated answering system with a company directory that will often tell you the extension of the person you are trying to connect to. That’s often a great way to gain the direct-line number of someone.

~ Google! As with so many things . . . Google is a tremendous resource to find contact information. If, for example, I’m trying to find John Mansky at XYZ Company . . . I simply search:

“John Mansky” “XYZ Company”
I make sure to put his name in quotes to avoid unwanted results like:
John Smith and Bill Mansky

Scanning down the list of results, I often find some document or site that has their phone number and/or email address.

Their email address is likely to include their web domain, so if the address is “john.mansky” the search is likely to find it.

If that doesn’t work, I may do a search to find ANY email address at that company to discover what their standard email format is. For example, I may simply search:

email “xyzco.com”

If someone else’s email address pops up that is in a format of “firstname.lastname,” for example, I know it’s a very high likelihood that my contact’s address is in the same format.

~ Check emails4corporations! Another great resource to help you find the standard email format for the company where your contact is employed is emails4corporations. Someone has compiled a tremendous list of standard email formats for companies all over the country. http://sites.google.com/site/emails4corporations

Enter the company name in the search box at the top right corner of the homepage and it will show you the company, email format, address, and phone number.

~ Try JigSaw.com! JigSaw.com is probably the worlds largest “Rolodex.” It includes the business card information of millions of people. You can either use it by paying for the service, or for free on a give & take point system. So it takes a little money or some effort on your part.

~ Paid Services. Certainly there are a number of additional paid services (Spoke, ZoomInfo, and others) available online that can provide the information for you as well, however, I’m generally a big fan of “FREE” – It’s pretty rare that I can’t find someone’s contact information through one of the means listed above. Try those and then depending on how badly you need it, a paid service may be worth it.

Generally, I don’t recommend contacting someone directly through LinkedIn’s system. Many people receive a lot of communications through there and have become conditioned to treat them like Spam. It’s generally best to reach them by phone, a professional voicemail, or email first. However, if none of those works, as a last resort, you have nothing to lose by trying the LinkedIn contact system as well.

Read the full article here: http://www.careerrocketeer.com/search?q=Finding+Your+Targets+with+LinkedIn

—Career Rocketeer

Gilbert Resumes remains in the forefront of providing cutting edge solutions for today’s challenging job market, including strategies to build your online presence and maximize your career opportunities.

Need assistance with your career endeavors?

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Contact
Martin Weitzman
Certified Career Professional
Gilbert Resumes
800.967.3846
http://executiveresumewriter.com
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If you have ever been on a job interview the odds are you were asked this open ended, break the ice question, which is often the first one asked. Now if you worked with a resume writer/job coach like me, inwardly you would be jumping for joy because the exercises used to prepare your resume also prepared you to knock this out of the park.

However, as a recruiter and hiring authority I was shocked at how many people were caught off guard when asked this question and how many struck out in my evaluation of them before the interview even started. After all, this question is a slow pitch lobbed right over the heart of the plate and I expected them to hit a home run, or at the very least to make contact and get on base.

This is not really a question, it is a request for information and your reply will set the tone for the balance of the interview.

How do you reply?

1. First off keep your reply as brief as possible, not less than 60 seconds but no more than 2 minutes. Remember this is generally the beginning of an interview so you have ample opportunity to present relevant information later on.
2. Write your answer out and rehearse it until it comes out sounding natural and unrehearsed.
3. Be aware of your body language. Keen interviewers judge you by eyeballing you as well as listening to what you have to say.
4. Your reply must offer the following personality traits that employers look for no matter what level job you’re applying for: intelligence, enthusiasm, confidence and professionalism.
5. Present yourself in a positive yet humble way and by all means avoid sounding negative, cocky or braggadocios.
6. If you ever heard a politician or professional interviewed in person, on TV or the radio you will know that most reply with the same opening line, and you may want to adapt it in your response by saying, “That’s a very good question, where should I start,” and then go into your prepared spiel.
7. When you are done, politely through the ball back into the interviewers court way that puts you on equal footing as the interview moves forward.

What do interviewers want to hear?

When you prepare your response weave the following information (in any order) into your response.

1.  A brief introduction of your experience and education.
2. Your key strengths as they relate to the position you’re interviewing for.
3. Relevant past accomplishments that demonstrate your understanding of what needs to be accomplished in the position you’re applying for and your track record of success in this area.
4. How you see yourself contributing in the position you’re applying for.

Here is a sample response:

That’s a great question and I am glad you asked it. To begin I earned my Bachelors in Computer Science from CUNY Baruch College cum laude and I have an MBA with a concentration in Business Management from Hofstra University.

In terms of business I have 4 years experience as a programmer/analyst, 2 years experience as a senior business analyst, and for the past 18 months I was a project manager at your main competitor, JJ Kindle.

However the most important thing I think you need to know about me is that I pride myself on my ability to face every business challenge head on – and I thoroughly examine all options and seek the opinion of my peers and superiors before I decide on a solution. An example of this is a project I recently completed where the budget was cut midway through the project. I was able to complete the project on time and slightly under the new budget by revaluating the project’s priorities, renegotiating our outside consulting costs and brining some tasks in house at a lower cost, and I got stakeholder buy in to scale the project down by eliminating some costly enhancements that were mostly cosmetic and would not be missed.

I also think it’s important to mention that I thrive when working in a fast paced turn around environment like the one I would be working in here at Best and Company, and I can contribute valuable insights on how to achieve the efficiency and cost savings you are seeking to achieve over the next 24 months.

The final thing I think you should know about me is that I am a hands-on manager, and I have been told I have great communication skills; and at my previous position I was very successful in building productive teams and getting the most out of each team member by creating a positive work environment, mentoring the team members, and making everyone on the team understand their role and how important they are to the company’s success.

I know my skills and work experience will make me an asset here at Best and Company and I know I can deliver the results you are seeking from the new hire in this position.

Now is there anything you would like me to address in greater detail?

As you know wring a hypothetical speech is a lot easier than preparing one that you need to deliver. So if your stuck and need some help working on your response email me your phone number and we can talk.

Career Rocketeer

For all the concerns about the sluggish jobs recovery, there’s one group with an encouraging outlook: senior management.

“The outlook is strong for executives,” said John A. Challenger, CEO of employment-research firm Challenger, Gray & Christmas. “Companies are trying to get executives that can help them capture the era of growth — instead of just trying to survive the recession.”

With the worst of the recession apparently over, many companies are sitting on a lot of cash and looking to increase their business. So they want a strong management team to seek out mergers and acquisitions or take their existing business into new markets.

Sales and marketing executives will be among the most in demand, Challenger said, because they’re on the front lines of growth. By contrast, when times are tough, companies tend to put their financial or operational people in charge.

“For a lot of marketing executives and professionals who got stuck in this recession, now opportunities are starting to open up again,” Challenger said.

Unfortunately, this doesn’t mean a general pickup in hiring at all levels. But it does indicate that companies are thinking about expanding rather than cutting back.

“There’s some positive pressure on companies to hire more broadly,” Challenger said, though he added that it’s not heavy pressure. “Companies so far haven’t taken the next leg of what creates hiring growth and demand … there’s still caution out there.”

The demand for executives doesn’t end in the corner office: Companies also are looking for senior and even middle-management.

Since the beginning of the year, listings for management jobs have jumped 41% on job-search site SimplyHired.com.

That’s everything from an executive director of comedy development for ABC Studios at Walt Disney to a business-development executive for IBM in New Orleans.

SimplyHired has also noticed a significant bump in the sales and marketing manager categories.

“The demand is where you expect in a tough economy,” said Simply Hired CEO Gautam Godhwani. “Companies have to compensate and work harder to get sales.”

There’s also a lot of demand right now for directors.

“Director recruitments are at an all-time high for us,” said John Wood, who runs the CEO and board practice at executive-recruiting firm Heidrick & Struggles International.

“Two years ago, when things started to fall apart, boards looked at their retiring directors and said things like, ‘You’re not going anywhere! You’re our most tenured director. We need your help,’” Wood explained. “Now, with some stabilization and signs of recovery, directors are able to retire and we’re seeing an uptick in demand for new directors.”

In addition, companies seeking to go public and those emerging from bankruptcy — particularly in the automotive industry — are also hiring new directors. To some degree it’s the big auto manufacturers, but mostly it’s their suppliers.

“Bringing in people who are comfortable with growing their business to someplace else is at a premium right now,” Wood said.

In terms of sectors, health care has seen the biggest bump in hiring overall — and that goes for executive and management jobs, too.

“There are opportunities in health care because of aging Baby Boomers and health-care legislation,” Challenger said. “More small- and medium-sized firms are growing and they need stronger executive management,” he explained.

Physician executives who can run a 300-400 person medical group are in particular demand as are health-care technology executives, or “health information officers” as they’re known, said Andrew Chastain, a health-care executive recruiter at Witt/Kiefer.

“Our clients are preparing for integrated information systems and they’re bringing in more talent to push that initiative,” Chastain said.

Energy companies and firms looking to expand globally in places like China and India are also seeing significant executive hiring.

Wall Street is starting to hire again but it’s nowhere near as robust as it has been in the past.
“They’re coming back out of a deep hole,” Challenger said.

The hiring picture on Wall Street is a tale of two cities, said Ilana Weinstein, CEO of executive-search firm IDW Group. Hiring at investment banks has slowed down, while hiring at hedge funds has picked up.

The reason, quite simply, is that’s where the money is, Weinstein said. Investors are finding it hard to make the returns they need from the more traditional investment banks. So, they’re increasingly putting their money with hedge funds, though they’re careful to stick with hedge funds that have been around a while and have a proven track record.

“They’re successful in raising capital and deploying it, and that’s what drives hiring,” Weinstein said.

Geographically speaking, the home of the nation’s chief executive is also the top city for hiring corporate executives.

Washington, D.C., topped the list of cities with the most managerial job openings per capita in August, according to the latest survey from job-search companies CareerCast and JobSerf.

Boston came in at No. 2, followed by San Francisco, Seattle and Atlanta. Cleveland saw the most improvement in management hiring, with a gain of 19%, followed by Houston, up 14%.

“During the past two years we’ve seen a major drop in managerial hiring activity,” said Jay Martin, chief operating officer of JobSerf, a job-search outsourcing firm. “It is encouraging to see the recent stabilization in recruitment activity, and some light at the end of the tunnel,” he said.

—Cindy Perman, CNBC.com

The following are arguably 25 of the best groups to join on Linkedin to optimize your opportunities.

1. JobAngels – Non-profit job search network of professionals helping other professionals find job advice and opportunities.

2. Executive Suite – Community of over 100,000 US-based executive-level and recruiter members.

3. Star:Jobs Professional Career Center – Group working in tandem with Linked:HR, the largest Recruiters’ Group on LinkedIn, to help top candidates find jobs quickly and efficiently.

4. Career Rocketeer – Career Launch Network – Fastest-growing professional network for personal branding, career search and career management, bringing job seekers and employers, recruiters and career experts together for mutual success.

5. The Talent Buzz – Group for job seekers, recruiters and HR professionals interested in expanding their professional networks.

6. Helping Friends Career Network (LI2HF) – Business and career network where entrepreneurs, hiring managers, recruiters, and talented professionals worldwide can make meaningful win-win connections.

7. JobsDirectUSA – Official job search group on LinkedIn for JobsDirectUSA.com.

8. Career Change Central – Group linking job changers and professionals in career transition with recruiters, hiring managers and career coaches.

9. CareerLink Network – Community providing job seekers spiritual, physical, social, mental, economic and personal growth to meet their ever-evolving needs.

10. Jobs Alert – Job search group for middle and senior-level managers worldwide.

11. A Job Needed – A Job Posted – Group is for all LinkedIn members searching for employment, posting employment or recruiters helping members find employment.

12. Looking for a Job? – Group designed to allow job seekers to share ideas, network, post jobs, advise on job market trends and ultimately help them find work.

13. MyCredentials – Career Presentation – Group helping members to network, expand their resumes and enhance their interview skills.

14. JibberJobber – Career Management – Network for executives, professionals, students and all those involved in the career services industry, including counselors, coaches and resume writers.

15. ResumeMaker Career Network – Forum connecting qualified job seekers with hiring managers and corporate recruiters as well as allowing candidates to discuss and share career opportunities.

16. Personal Branding Network – Consortium for all professionals looking to build powerful personal brands.
17. Indeed.com – Official job search group on LinkedIn for Indeed.com.

18. Project: Get Hired! – Motivational support group exclusively for job hunters to share creative strategies and stay motivated.

19. Job-Hunt Help – Discussion group for job seekers sharing advice and leads and networking to help one another.

20. IMPACT Hiring Solutions Job Search Network – Discussion and networking forum for executives seeking job opportunities.

21. Global Jobs Network – Network for all professionals who would like to be aware of requirements in their respective fields and for organizations & recruiters who are hiring.

22. Job Openings, Job Leads and Job Connections! – One of the largest groups for job seekers on LinkedIn.

23. JOBS 2.0 – Group helping job seekers find a job online using the latest in social and professional networks.

24. The Job Board – Networking group for professionals seeking jobs and recruiters seeking candidates.

25. Self-Recruiter® – Job Search & Career Management – Discussion and networking forum helping job seekers become their own specialist, their own career counselor, and their own recruiter.

As a leader in the distribution of resumes to domestic recruiters, venture capital, and private equity firms, I am often asked about overseas executive recruiters. On September 1st, Gilbert Resumes will be officially launching its exclusive résumé distribution service, directed solely to executive recruiters in Europe, MENA, Asia Pacific, Latin America, and Canada. We will continue to work directly with job seekers and career services providers.

You just learned one of your previous employers has been giving you a bad reference. Count your blessings that you found out, because many never do. But what do you do about it?

Bad references don’t always prevent someone from getting a job. The key is how the issue is handled in the reference, and how you handle it prior to the reference being checked. So your goal isn’t necessarily to erase or debate the issue, only to reach agreement on its presentation.

When you phone, prevent them from becoming defensive by saying, “I’m calling to ask your help with something. I understand you have an issue with my performance when I worked for you, and I’m wondering if we might be able to reach an agreement on how it’s presented so that it doesn’t compromise my chances of employment. Would you mind sharing with me, please, what you weren’t happy with when we worked together?”

Your tone of voice must be respectful, polite, and convey your desire for information and understanding. If you’re angry, defensive, or whiny, or they perceive they’re being attacked, you’re not going to get what you want or need, which is information and cooperation. Creating an environment where they feel comfortable talking is more likely to open a conversation.

Don’t argue, interrupt or react defensively. Just listen. And when they’re done, tell them you appreciate their sharing with you. This relaxes them further and moves you closer to a win/win agreement.

Next ask them what – not “if” – the positive aspects of your performance were. Ask if they’d be willing to share that information also next time. Again, this is negotiation for a win/win, not an argument to win or lose. Make sure they realize you’re not asking them to remove the negative, but simply to frame it in a less harmful light and balance it with the positive. When you approach the conversation with the goal of resolving the situation and healing the relationship as best it can be healed, everyone usually wins.

As you continue interviewing, address this with a prospective employer before the reference is checked, but not until an offer is imminent. Assuming the issue is a valid one, acknowledge you’ve had some difficulty in the past, but since then it’s no longer relevant (if this is true.). Don’t make excuses or try to explain. Now you’ve defused the situation and removed the element of surprise.

If there’s no validity, you’ll need to address that too, but by presenting the supervisor as perhaps someone who was threatened, or new, or wanted their own person in your position, or whatever the case truly was, but be brief, objective, and balance it with a positive about the person as well. Trashing them reflects poorly on you and will backfire.

A wise word to every job seeker: contact your references before you start looking. Send them your resume. Tell them what you’ll be interviewing for. Ask them what they might contemplate saying and how they’d speak to your abilities. Ask their permission to use them as a reference. References are sacred. Their privacy and willingness to speak on your behalf is to be respected and appreciated. Then you prevent this problem from occurring.

Career Rocketeer

In a much-anticipated opinion in the Quon1 matter, on June 17 the U.S. Supreme Court declined to set precedent on broad issues of employee privacy expectations in workplace communications . . .

In a much-anticipated opinion in the Quon1 matter, on June 17 the U.S. Supreme Court declined to set precedent on broad issues of employee privacy expectations in workplace communications. Instead, the unanimous Court ruled narrowly, reversing the decision of the Ninth Circuit by holding that the review of an employee’s text messages sent using employer-issued electronic devices did not, under the circumstances in that case, violate traditional Fourth Amendment reasonable search standards.2

Acknowledging that it was in sensitive and uncharted territory and, therefore, should “proceed with care,” the Court noted that it “risked error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” “Prudence counsels caution before the facts of the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.” Nevertheless, the Court’s analysis and dicta suggest factors that may be weighed by future courts in addressing these issues.

Quon Facts

In Quon, the City of Ontario (the City) acquired two-way pagers for use by Ontario Police Department (OPD) SWAT team members, including Sergeant Quon, to assist with responding to emergencies. Under the City’s contract with service provider Arch Wireless, each pager was allotted 25,000 characters per month, after which overage fees would accrue. When it issued the pagers, the City did not have in place a formal pager-use policy. It did, however, have a computer usage, Internet, and email policy which warned that all network activity might be monitored and that users had no expectation of privacy or confidentiality when emailing or when using network resources. Quon signed an acknowledgment of this policy.

Once the pagers were in use, the City made clear to employees, including Quon, that it would treat text messages in the same way as email messages. Some City employees also developed an informal policy concerning fees for exceeding the monthly character limit, allowing individual users to pay overage charges with the understanding that if they paid, their usage would not be audited.

The OPD later opened an internal investigation to establish the adequacy of the character limit. As part of this investigation, the department obtained transcripts of Quon’s text messages from service provider Arch Wireless for two of the several months in which Quon exceeded the character limit. Messages sent outside of work hours were redacted. Review of the transcripts revealed that most of Quon’s work-hours communications were personal and included sexually explicit messages, some of which he sent to coworkers within the department.

Procedural Issues and Legal Analysis

Quon and others implicated by the transcripts, including coworkers and Quon’s then-wife, sued Arch Wireless and the City, claiming that Arch had violated the Stored Communications Act (SCA)3 and that the City had violated their Fourth Amendment rights. On a motion for summary judgment, the district court held that Arch had not violated the SCA and that, although Quon had a reasonable expectation of privacy, neither the City nor the OPD had violated the Fourth Amendment.

On appeal the Ninth Circuit reversed. While agreeing that Quon had a reasonable expectation of privacy in his text messages, the court found that the search was unreasonable and listed less intrusive means that could have been used to determine the reason for the overages, including warning Quon or allowing him to redact the transcripts. The court also held that Arch violated the SCA.

Having granted certiorari only on the Fourth Amendment issues, the Supreme Court reversed the Ninth Circuit. Previously in O’Connor4 the Supreme Court majority held that “special needs, beyond the normal need for law enforcement,” can make warrant and probable cause requirements impracticable for government employers, and developed a two-part test for determining whether a Fourth Amendment right has been violated. First, a court must decide if the employee has a reasonable expectation of privacy, considering the “operational realties of the workplace,” to determine if privacy rights are implicated. If a legitimate privacy expectation is found, the court proceeds to the second part of the test to determine if, under all of the circumstances, the intrusion into that right is reasonable.

Rather than deciding whether Quon had a legitimate privacy expectation, the Court focused on the reasonableness of the City’s text message review. Assuming, arguendo, that Quon did have a reasonable expectation of privacy in the text messages, that the City’s review constituted a search under the Fourth Amendment, and that the principles applicable to a government employer’s search of an employee’s physical office also apply to the search of an employee’s electronic communications, the Court still found that the City’s actions were reasonable.

In O’Connor, the plurality reasoned that when conducted for a “non-investigatory, work-related purpose” or for the “investigation of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in life of the” the circumstances giving rise to the search. Here, the City sampled Quon’s messages, redacting those which occurred while not on duty. Moreover, the Court held that the review was the most efficient way for the City to assess whether the messages were professional or personal. The City was furthering a legitimate work-related purpose by ensuring that employees were not being required to pay work-related expenses out of their own pockets, and that the City was not paying for employee personal communications.

Finally, the Court reasoned that as a law enforcement officer, Quon should have known that his communications could be subject to legal scrutiny and audit. Because they were predicated solely on the search’s unreasonableness, the privacy violation claims of those with whom Quon communicated also failed.

Lessons from Quon

The Court decided Quon under the Fourth Amendment of the U.S. Constitution, which only regulates the conduct of governmental actors. Consequently, the decision technically applies only to public employers. Nonetheless, the decision ultimately could have broader implications for private employers as well. Private employees have privacy protection under some state constitutions, statutes, and the common law. In defining the scope of this protection in the future, lower courts may be influenced by some of the Supreme Court’s observations about the reasonableness of the City’s conduct in Quon. The Court’s overall approach suggests that the practices listed below will help reduce the potential exposure to any employer facing similar issues.

Though the opinion does not address head-on the issue of employee privacy expectations in workplace communications, there is still much in the Court’s analysis and overall approach that may serve to curb a proliferation of privacy claims in the private sector.

The Morgan Lewis team can help clients with developing policies and procedures that take advantage of the Supreme Court’s guidance, positioning an employer to face these issues by establishing the following practices:

• Establish and clearly disseminate formal, written electronic communications and systems usage policies, broad and flexible enough to cover emerging technologies, and update them regularly as the practical implications of new technologies become clear.
• Establish and disseminate explicit statements that employees have no privacy, confidentiality or ownership expectations in data stored on company systems or in any communications generated using employer provided devices.
• Formally disseminate, and require an acknowledgement for, all policies and modifications.
• Provide clear notice that communications and systems usage may be monitored and audited.
• Put in place monitoring practices, including taking measures to detect and eradicate informal policies and workarounds that may contradict or undercut company policies.

I am actively expanding my resume and career services practice to clients in Europe and the Far East. Currently working with two senior executives in Eastern Europe.

Just heard great news from several clients who found new positions, including the new Chief of Police of a large city and the president of a major consumer products company in Hawaii. Majority of clients are actively interviewing. I still stress a multi-pronged approach, which includes heavy networking, answering ads, distribution to recruiters, and where appropriate, to VC/Private Equity firms as well as targeted mailing to hiring executives at companies.

Spring is here and I am going fishing Saturday.

Marty Weitzman
Gilbert Resumes