WORKPLACE LAW -
Monitoring Text Messages

Question:

Someone recently told me that employers are free to read their employees’ emails and text messages. Isn’t this an invasion of privacy?

Answer:

This is actually a developing area of the law. Just last month the U.S. Supreme Court issued a decision involving employer-provided communication devices and the privacy rights of employees. In that case (City of Ontario v. Jeff Quon), the U.S. Supreme Court addressed the issue of whether it was constitutional for an employer to read its employees’ text messages when they were being sent on employer-issued pagers. The U.S. Supreme Court ruled in favor of the employer, finding that the search of the employee's personal text messages was reasonable and not in violation of the employee’s Fourth Amendment rights.

In the Quon case, police sergeant Jeff Quon received a pager from his employer, the City of Ontario. The City’s wireless service contract contained a limit on the number of monthly text messages; if the City’s employees exceeded that limit, the City would be charged extra fees. As a condition of his employment, Quon had signed a “Computer Usage, Internet and E-Mail Policy” that gave the City the right to monitor all network activity without notice to its employees. While the policy did not specifically address text messages, the City announced to employees and issued a written memo stating that text messages would be treated the same way as e-mails, and that they could be audited pursuant to the City’s policy.

Quon went over his limit several times, and each time he paid for the overage charges. However, Quon’s lieutenant was unhappy about having to collect the reimbursement and he was also concerned that officers were wasting time and resources by sending excessive personal messages while on duty. The City proceeded to audit two months’ worth of Quon’s archived messages, and discovered that not only were many of them both personal and sexually explicit in nature, but that they had been sent while Quon was on duty. Quon was disciplined as a result of the City’s investigation.

Quon sued for invasion of privacy under the Fourth Amendment and the federal Stored Communications Act. In its defense, the City said the purpose of the audit was to determine if their texting limit was too low and should be increased for employees’ business needs. The 9th Circuit Court of Appeals rejected this argument, and ruled that the City was liable for violating Quon’s privacy rights. On appeal, the U.S. Supreme Court overturned the 9th Circuit’s ruling, holding that the search and audit of the text messages was reasonable because it was an efficient way to determine if overages were work-related or personal in nature. In short, the Court held that because the search was motivated by a legitimate work-related purpose and because it was not excessive in scope, it was reasonable, and Quon did not have a reasonable expectation of privacy in the text messages at issue.

The U.S. Supreme Court’s decision was partly based on the proposition that the privacy protections afforded by the Fourth Amendment are not limited to criminal investigations, and that those protections apply to the government when it is acting as an employer in the public sector. In making it’s ruling, the Court expressed reservations about the potential scope of its opinion because of the rapid pace of technological change, and the fact that the role of today’s emerging technology is not yet entirely clear. As such, the Court declined to make any far-reaching proclamations with regard to the extent of privacy expectations enjoyed by employees when using employer-provided communication devices, stating that “[a]t present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”

So what does the Quon decision mean for employers in a practical sense? Future case law will provide additional guidance, but for now, there are several things worth keeping in mind when considering audits of employee text messages:

  • The decision focuses on a public sector employer and the Fourth Amendment constraints applicable to a governmental employer. While the decision most likely has ramifications for private employers as well, it is not yet clear what the extent of that impact will be, or how the Court would analyze a similar situation involving a private employer.
  • An employer’s intent in making any sort of search is critical. When the employer has a clear technology policy and a legitimate business reason for conducting a search, the search is more likely to be lawful.
  • A company’s technology use policy is extremely important. Public and private sector employers should develop comprehensive policies and communicate them clearly, i.e., by putting the policy in writing and distributing it to their employees. These policies should include information about what information may be monitored, and how, as well as a statement that employees do not have a reasonable expectation of privacy in transmissions made via employer-owned devices.
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