If an employer were to find an employee’s cellphone in the workplace, could it search the phone? And what if it found evidence of activity on the phone that violated its policies—could it fire the employee? This scenario was recently considered by the U.S. Court of Appeals for the Third Circuit in Canada v. Samuel Grossi & Sons, 49 F.4th 340 (3d Cir. 2022).

Discrimination Complaints

Joseph Canada was a machine operator for Grossi, a steel producer. He suffered from herniated discs and arthritis in his back—to the point that he needed various leaves of absence for his condition. Although Canada applied for Family and Medical Leave, it was never approved by the company. Rather, it appears as though Canada took leaves throughout his employment but was never assessed attendance points. Notably, Grossi’s production workforce was unionized, so Canada had protections under the applicable collective bargaining agreement. In March 2019, after a one-day layoff, Canada filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). A month later, he filed a complaint in federal court, alleging discrimination, retaliation and harassment under Title VII, the ADA, Section 1981 and the FMLA. Canada alleged that shortly thereafter, one of the company’s owners threatened him that if he did not drop his lawsuit, “I’ll just have other African American employees say the opposite of what you’re saying.”

Employer Phone Search

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