Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Electronic Communications’

It's Unanimous: Supreme Court Permits Search of Employees' Electronic Communications

Thursday, June 24th, 2010

Molly DiBiancaIn Quon v. City of Ontario, the 9th Circuit held that a California police department’s review of an officer’s text messages was an invasion of the officer’s right to privacy. In a unanimous ruling issued yesterday, the U.S. Supreme Court overturned the Quon decision and ruled that the police department’s review of the provocative text messages sent by the officer to his wife and to his mistress from his employer-issued pager, did not constitute an invasion of the officer’s privacy. (Link to the full opinion in City of Ontario v. Quon).

For employers, the key component of the decision is the Court’s focus on the fact that the police department-employer’s review of the messages comported with its policy and was conducted for a legitimate business reason. The department’s policy provided that messages would not be reviewed unless the employee went over the allotted monthly usage. In Quon, the officer had exceeded the monthly limit and the department reviewed the messages to determine whether the overages were work-related. Officers were responsible for costs incurred for non-work-related messages if they went over the monthly limit.

The 9th Circuit ruled that this review constituted an unreasonable search and seizure in violation of the Fourth Amendment. That decision was based largely on the fact that the officer’s supervisor had told the officer that messages were never reviewed by the department. The federal appellate court found that, because he’d been permitted to use the pager for both personal and work-related use, the officer had a reasonable expectation of privacy in those communications.

This important decision is the Supreme Court’s first in the area of an employer’s right to monitor the electronic communications of its employees sent and received during working time or with work-issued devices.

The decision was not a free-for-all pass for employers who want to review employees’ electronic messages. The Supreme Court warned employers of the possibility that an expectation of privacy may exist in certain circumstances. Interestingly, the Court noted that the expectation of privacy may exist due to to the pervasiveness of electronic communications. Justice Kennedy, writing for the Court, explained that “cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”

But the Court also recognized that the pervasiveness of cellphones and other electronic-communication devices, has also driven down the cost of such devices, making them “generally affordable.” The low cost of electronic-communication devices, the Court found, supports the argument that there is a very low or no expectation of privacy because an employee who needs a cellphone for personal use can buy one and avoid having to use the work-issued device for anything other than work-related communications.

The decision is a critical one for employers who want to ensure employee compliance with company rules and policies without violating the employee’s privacy rights and, in turn, exposing the organization to legal liability. The Quon opinion has two key components for employers:

1. Any workplace monitoring must comply with the employer’s policy—if you don’t have a clear policy, now is the time to get one; and

2. A search of electronic communications should not go beyond what is necessary to accomplish the legitimate business purpose behind the policy—use the least intrusive means possible to make the determination at issue.

About The Author:

Margaret (Molly) M. DiBianca maintains a legal practice consisting of equal parts litigation and client counseling. She represents employers in a variety of industries in employment rights claims, discrimination matters and equal employment disputes at the state and federal court level.

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