In the June 17th ruling in the case of City of Ontario, California v. Quon et. al., the Supreme Court held that the City had not violated its employees’ Fourth Amendment rights in reviewing personal text messages sent during working hours using an employer-issued pager. The employees in this case were police officers. The policy with respect to these pagers was that there was a certain monthly character allotment and if employees exceeded it, they would have to pay for any overage charges. In establishing the allotment, the employer was estimating that the allotment was ample to cover all work-related text messages and that any excess would, in all likelihood, be personal. After several employees were regularly exceeding the allotment, the City conducted a survey to determine how many texts sent during working hours were work-related and how many were personal in an effort to figure out whether it needed to adjust its allotment policy. Of course, to determine whether a message was personal or work-related, the messages had to be read. Many of Quon’s personal text messages were sexually explicit, some with his wife, and some with his mistress.
The Supreme Court considered whether the employees had a reasonable expectation of privacy in their text messages sent during working hours. The employer had a “Computer Usage, Internet and E-Mail Policy” by which it reserved the right to monitor all network activity including email and Internet use. There was some question as to whether this policy included pagers and text messaging, since it was not explicitly included in the written policy. The employer alleged that that employees were informed that such text messages would be considered emails and thus included. Quon contended that he believed that he had a reasonable expectation of policy, in part based on the fact that he and other employees had to (and did) pay for exceeding their monthly character allotments.
The Court also considered whether the employer had a legitimate reason for reviewing the messages and exercised reasonable non-excessive measures in doing so. The purpose of the search, according to the employer, was to determine whether employees were regularly exceeding their character allotments in sending work-related emails (in which case the allotment should be increased so that employees were not being made to pay for work-related emails) or whether the allotment was too high resulting in the employer paying for employees’ personal use of the pagers. The employer did not review any text messages sent during non-working hours, as those were presumed to be personal in nature.
The Court ultimately held in favor of the employer.
What does this ruling mean for employers? Although the Fourth Amendment does not apply to private employers and employees, a private employee could still have an invasion of privacy claim against his employer in a similar type of case. An employer’s best protection against such claims is to have a clear and well-drafted policy in place that includes all employer-provided electronic communication devices and makes it clear that employees should have no expectation of privacy when using such devices. Additionally, if a search is to be conducted, the employer should carefully document its reasons for the search, why it is legitimate in relation to the employer’s business, and the methods it chose to implement it.
What does this ruling mean for employees? At he risk of stating the obvious, an employee would be wise to assume that nothing said or conducted at work or using work-issued property is private. Although the employee may ultimately have a legitimate claim, does he really want his employer (and possibly the public) knowing his private business? Even if the Supreme Court had ruled against the City, I’m not sure Mr. Quon (or his wife or his mistress) would have felt much of a victory.
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