Date: July 22nd, 2010
Categories: Employment Law

Last month, I posted an article discussing a general trend in the courts recognizing greater privacy rights for employees using employer-provided technology, despite employers’ policies advising employees they had no reasonable expectation of privacy in communications made using employer-provided technology. One of the cases I discussed, City of Onatario v. Quon, was at that time pending in the United States Supreme Court. That case is now resolved.

In a unanimous result, the U.S. Supreme Court held in Quon, that a public employer’s examination of an employee’s personal text messages on a government-issued device did not violate the Fourth Amendment. The issue on appeal was whether a SWAT team member, Jeff Quon, had a reasonable expectation of privacy in text messages transmitted on a Police Department owned mobile device. The court reversed the 9th Circuit’s decision that Quon’s privacy rights had been violated, and determined that the City’s examination of Quon’s text messages was reasonable:

“Petitioners’ warrantless review of Quon’s pager transcript was reasonable … because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.”

Though the issue in this case dealt directly with the responsibilities of a public employer, the court also “[concluded] that the search would be ‘regarded as reasonable and normal in the private-employer context.’”

In light of the Quon decision, employers should take some practical precautions when monitoring an employee’s computer or communications, whether the employment is in the public or private sector:

• The employer should maintain and regularly update their employment policies/communications policy to encompass all of the technologies utilized by the company.

• Consistency between the written employment manual and oral instructions from supervisors and non-supervisors is critical. A proper communications policy is only effective if it is followed by management. Prevent trouble by updating your communications policy and then sticking to it!

• Before diving into an employee’s text messages or computer, the employer should be able to articulate a legitimate, work-related purpose for the search.

• Besides purpose, the employer should also consider the scope of the search. Though Quon does not require the employer to undertake the “least intrusive search practicable”—an employer should tailor the scope of the search to correspond to the reason for the search.

Prior to the Quon decision, court decisions appeared to be interpreting the law toward increasingly greater privacy rights for employees. The Quon decision represents a significant limitation on that trend. Employers must still remain vigilant, however. Many of the recent decisions by courts around the country have been highly fact specific making it difficult to predict with certainty how courts will treat future disputes. I will continue to update you on important cases dealing with this issue and provide you with information you can use to adjust your internal policies and procedures regarding employer-provided technology.