Posted 08-04-2010

In late June, 2010, the U.S. Supreme Court handed down its long-awaited decision in City of Ontario, California v. Quon, upholding an employer’s right to review an employee’s personal text messages on an employer-issued pager.

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. 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!

Sgt. Jeff Quon, a SWAT team member, consistently paid the monthly overage fee. His lieutenant told him and other SWAT team officers that as long as they paid for the extra messages, he would not audit them to determine which ones were personal. Then – surprise! – the Lieutenant secretly ordered transcripts of two months of texting and found – surprise! – sexually explicit material. Was Quon fired? Of course not. He sued for violation of his right to privacy.

A lower federal court ruled in favor of Quon, finding that he had reasonably relied on the Lieutenant’s assurances that his messages would not be audited. But a unanimous Supreme Court reversed, finding that the city had a reasonable interest in controlling excessive personal use of communications devices, as well as in setting an appropriate level of city-funded communications so that officers were not forced to pay for work-related communications, and that the review of Quon’s text messages was limited and for a legitimate work-related reason. Therefore, said the Court, any privacy rights Sgt. Quon may have had in the texts was not violated.

What this means to you:

In its first decision on workplace monitoring of electronic communications and employee privacy expectations, the Supreme Court decided the case on narrow, fact-specific grounds, refusing to issue any broad pronouncements concerning the permissible scope of workplace monitoring. In his opinion for the Court, Justice Kennedy cautioned: “The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

Nevertheless, the Quon decision provides some useful guidance for employers. Notably, the Court endorsed the principle that employee privacy rights can be limited by company policy, saying: “

[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.” In addition, the Court noted with approval that the city limited its review to messages Sgt. Quon sent and received during working hours, thereby reducing any intrusion into his private life.

Three steps you can take right now:

  • Take a look at your electronic communications policies to make sure they cover all the technologies your employees use.
  • Before reviewing the content of employees’ personal messages, make sure you have a clearly articulated, work-related purpose (such as investigating suspected misconduct). Limit your search to the employer’s legitimate, work-related objectives.
  • Distribute your electronic communications policy to all employees, and train them on proper e-mail and internet usage.

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.