Supervisor's informal policy leads to right to porn on work pager 09-08-2008
- By Rita Risser, attorney at law

Is porn an addiction? Several recent cases involved employees using company computers and pagers to store and send their collections. My initial thought was, "Who has time at work to do that? Everyone I know is working hard." But then I realized that many people also work from home and while on vacation. The definite line between work and home is gone for many of us. So it makes sense we do some personal things with our company's equipment. It's just that some people do things that are more personal than others.

One of these cases was Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir., 2008).

The City of Ontario, California, gave text pagers to police officers. The City's policy on computers, Internet access and e-mail, which also applied to pagers although they were not specifically mentioned, stated this equipment must be used only for City business and that users have no expectation of privacy.

So far, the City was sloppy but probably safe. But despite the fact that the written policy said equipment must be used only for City business, officers routinely used pagers for personal messages, the City knew it, and even charged them for it! Talk about torpedoing your own policy!

One officer, Quon, consistently paid the overage fee. His Lieutenant told him and other officers that as long as they paid for the extra messages, he would not audit them to determine which ones were personal. Thus the Lieutenant's oral policy, and the practice of accepting and processing monthly overage payments from Quon and other officers, contradicted the written policy. Then - surprise! - the Lieutenant secretly ordered transcripts of the texts and found - surprise! - sexually explicit material.

Was Quon fired? Of course not. He sued for violation of his right to privacy - and won. The court held Quon reasonably relied on the Lieutenant's assurances that his messages would not be audited. Was the Lieutenant fired for establishing an informal policy in contradiction to the City's written policies and then violating his own policy by ordering the transcripts and causing this lawsuit? We don't know, but we hope some discipline was taken against him.

What does this mean to you? Make sure company policies cover all forms of technology, and that they are not being routinely violated by manager's practices. Policies should provide that no manager has the power to contradict them. And all managers need to be trained in your policies and their responsibilities in enforcing them, not making up their own.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.