PERSONAL TEXTING ON EMPLOYER-OWNED DEVICES MAY BE AYOR “AT YOUR OWN RISK”

The long-anticipated cage match between technology and the law took place last week, and Round One went to employers. While it wasn’t a full and complete KO, employers at least received some guidance from the U.S. Supreme Court in City of Ontario, California v. Quon as it relates to an employee’s use of and privacy in employer-owned and provided communication devices.

YHBW
“You Have Been Warned”

Jeff Quon was a member of the City of Ontario, California Police Department’s SWAT team. Team members were issued alphanumeric pagers capable of texting, with a monthly limitation on the number of characters that could be sent and received. The City’s “Computer Usage, Internet and E-Mail Policy” reserved the City’s right to monitor and log all network activity, without notice, and informed all employees that they had no expectation of privacy or confidentiality when using those resources. While texting was not explicitly covered by this policy, the City made it clear to employees — both verbally and in writing — that text messages would be treated the same as email under this policy.

The first time Quon exceeded his character limit, he was merely reminded that his messages could be audited. He also was allowed to reimburse the City for the overage fees. However, after this happened a few more times with Quon and another employee, the City decided to determine if the problem was that the character limit was set too low, resulting in the officers paying for work-related texts, or if the overages were due to personal use.

B9
“Boss Is Watching”

The officer in charge of the pager contract obtained and reviewed Quon’s text message transcripts. Finding many personal messages, he referred the matter to internal affairs to determine if Quon had violated Department rules while on duty. The officer in charge of the internal affair review began by redacting all off-duty messages before reviewing the content of the messages sent by Quon during work hours in the months of August and September, 2002. Only 57 out of 456 messages were work-related, so Quon was disciplined.

MYOB
“Mind Your Own Business”

Quon sued alleging, among other things, that the City had violated the Fourth Amendment which protects privacy by prohibiting unreasonable searches and seizures. On appeal, stating that the case touched “issues of far-reaching significance”, the Supreme Court approached what was before them narrowly, restraining itself from trying to settle the issues surrounding employee privacy when using employer-provided technology policies and instead utilized Fourth Amendment precedent to conclude that the City’s “search” was reasonable. While expressly limiting its holding because of the uncertainty behind always evolving technology uses, the Court did recognize that their standards could have general applicability not just in the public sector – which was the setting of the case – but in the private sector, too. In the process, the Court also offered some valuable guidance for employers who regularly try to balance the delicate issues of employee privacy and their right to control employer-provided communication devices.

BSTS
“Better Safe Than Sorry”

Employer policies concerning communications and the use of employer-provided technology don’t solely determine – but certainly can shape — the reasonable expectations of privacy held by employees, and the Supreme Court basically recognized as much in its opinion. Practically, such policies must be clearly communicated to employees and inform them that they have no expectation of privacy in communications sent and received on employer-owned devices. To avoid the problem of a day-to-day practice modifying a previously written policy, employer policies should be sure to cover all technologies and should be in writing, noting that any change in policy also must be in writing and signed by the head of the employer. Further, any audit or review of employee use of employer technology should be motivated by a legitimate, work-related purpose and be reasonable in scope. The precautions taken by the City in Quon of reviewing on-duty messages over a limited timeframe were both legitimately work-related and properly limited in scope, and those are the main reasons why they were determined to be reasonable by the Supreme Court.

EOT
“End Of Transmission”

Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
 
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