Whether you are an employee who occasionally sends a quick email or text message to a friend during a lull at work or an employer, the question of whether the law recognizes a right to privacy in those emails or text messages begins with the employer's electronic resources policy.
The United States Supreme Court issued its first ruling on the issue of privacy of workplace texting in a case brought by a police sergeant whose private text messages were read by his employer. In the City of Ontario v. Quon, the City of Ontario, California issued pagers to City employees, including Quon. The City permitted the employees to use the pagers for personal matters. Although the City's computer use policy stated that the City had a right to monitor employee email, it did not explicitly include text messages. The City, however, had told employees that text messages would be treated the same as emails under its computer use policy. That policy was confirmed in a subsequent memorandum sent to all City personnel, including Quon. The memorandum stated in relevant part, "This means that [text] messages would fall under the City's policy as public information and [are] eligible for auditing."
Quon exceeded the monthly limit for his text messages, resulting in additional cost to the City. Although Quon paid the extra cost, the City decided to look into the matter for the specific purpose of determining whether the character limit for text messages that was part of the City's pager service plan was too low. In connection with that audit, the City reviewed two months of Quon's text messages and discovered that many of them were not work related and, in fact, were sexually explicit. Quon was disciplined. Quon then sued the City for violating his Fourth Amendment right against an unreasonable search or seizure and under the Stored Communications Act.
The United States Supreme Court unanimously decided that the City of Ontario did not violate Quon's Fourth Amendment privacy rights by obtaining and reviewing the transcript of his text messages. The Court concluded that the City had a legitimate purpose of determining whether the department's character restrictions on text messages were too low and had acted reasonably by reviewing only a sampling of Quon's texts.
The Court recognized that "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The Court went on to add "Prudence counsels caution before the facts in 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 communication devices."
The Court emphasized the importance of an electronic resources policy that communicates to employees that their messages may be audited. The Court also stressed that "[e]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated".
The Quon opinion answers at least two questions: Employers can be sued if they overstep their bounds in monitoring employees' emails or text messages; and employees send personal emails or text messages from an employer provided device at their own risk.
Rosemary Orsini focuses her practice on employment issues, representing both employers and employees, in cases involving wrongful termination, wage and overtime pay demands, State and Federal civil rights claims, the Americans with Disabilities Act (ADA), discrimination, non-compete agreements and trade secrets.