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In mid-June, for the first time, the U.S. Supreme Court considered whether an employer was within its rights to search employee text messages. The court decided unanimously that the search was reasonable. Although the case focused on a government employer, the decision clearly has ramifications for private businesses as well.

In mid-June, for the first time, the U.S. Supreme Court considered whether an employer was within its rights to search employee text messages. The court decided unanimously that the search was reasonable.

Although the case focused on a government employer, the decision clearly has ramifications for private businesses as well.

The case, City of Ontario v. Quon, centered on an Ontario, Calif., Police Department employee’s extensive use of a city-issued pager to send personal messages, many of a sexual nature, during work hours. The officer, Sgt. Jeff Quon, like other city employees, had signed a written computer usage, Internet and e-mail policy, which restricted use of city-owned computers and associated equipment and programs, including e-mail, and prohibited inappropriate language in the e-mail system. Police Department employees had been reminded orally and in writing that pager texts were considered e-mail messages and were, therefore, subject to the policy.

The city allocated each pager user a monthly character limit. After Quon and another officer exceeded the character limit on several occasions — always reimbursing the city for the excess — the police chief decided to audit the officers’ messages to determine whether the city had set the character limit too low, or whether personal use caused the overages. The investigation considered messages sent during work hours for two months and found that fewer than 15 percent of Quon’s messages in one month were work-related. Quon was disciplined for violating city rules.

After learning that the city had reviewed personal text messages, Quon and other employees filed suit, contending that they had a reasonable expectation of privacy when sending the text messages and that the city’s search was unreasonable.

After the case made its way through the lower courts, the Supreme Court ultimately concluded that because Ontario’s search was “motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable” and lawful.

Given similar circumstances, we can assume that the verdict would have been the same had the employer been a private company. We also can anticipate more cases of this nature. Because the Supreme Court said that technology’s role in society had not yet become clear, the justices expressly declined to determine whether Quon had a reasonable expectation of privacy, and instead focused on the reasonableness of the search. Variations on these issues are ripe for further adjudication, and cases are likely to determine how much privacy employees can expect when they use work-issued technological devices.

To protect themselves and minimize the possibilities that employees will misuse company technology, it is extremely important that businesses and organizations put written communication policies in place. As the court observed, “Employer policies concerning communications will, of course, shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

Both public and private employers should establish and implement formal, written electronic communications and systems usage policies, broad and flexible enough to cover emerging technologies, and update them regularly as new technologies develop. Internet or e-mail policies should cover use of company-issued electronic devices, texting and appropriate use of social-networking sites both at work and away from work.

The written polices should include explicit statements that employees have no privacy, confidentiality or ownership expectations in data stored on company systems or in any communications generated using employer-provided devices. Written policies should be acknowledged in writing by all employees.

Supervisory employees must avoid communicating information that is inconsistent with the company’s written policies. When they do otherwise, there is a substantial risk that the policy will be undermined. Company leaders should train supervisory personnel to convey information to the employees they manage in ways that adhere to the written communication policy. Employers also should establish monitoring practices, including taking steps to detect and eradicate informal policies and workarounds that may contradict or undercut company policies.

If an employer inspects employees’ electronic communications, the intent of the search is critical. The city of Ontario triumphed in its case, in part, because its search of employees’ text messages had a specific purpose related to the way it conducted business. Private employers who are considering similar investigations also should consider the court’s observations and should further ensure that the employees charged with conducting the audit have been trained in company policies on electronic communications, harassment and confidentiality.

Technology is necessary for conducting business, and its reach and effect will continue to expand. Policies that establish company expectations will help ensure that employees use that technology appropriately and in ways that provide a clear company benefit.

By James Holland

Fisher & Phillips LLP
Suite 400
104 West 9th St.
Kansas City, Missouri 64105

This article appeared in the September 14, 2010 edition of The Kansas City Star.

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