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The evolving landscape of employee text-messaging privacy issues

On Wednesday we examined employee privacy rights in the context of work and personal email use.  In much the same vein, privacy laws surrounding employee text messages are an increasingly important concern to employers. Although personal phone calls are frequently addressed in company employment policies, the greater concern in our current smartphone culture is employee text messaging. The privacy laws surrounding employers’ ability to monitor and act on employees’ use of personal text messages are not well-developed and remain relatively unsettled.

The June, 2010 U.S. Supreme Court case of City of Ontario vs. Quon, however, offers valuable guidance as to the principles a court might look to in adjudicating employee privacy issues relating to text messaging.  Although this case principally concerned Quon’s constitutional rights as a public employee, the nature of the Court’s analysis of privacy expectation could prove helpful to private employers as well.

In Quon, the city of Ontario, California (the “City”) appealed a decision from the Ninth Circuit finding that the City violated the Fourth Amendments rights of two of its police officers. The City issued Quon, as a police sergeant and a member of the SWAT team, a pager with text message capabilities to be used for work related issues.  Quon exceeded his monthly text messaging amount several times but  voluntarily paid the overage amount back to the City upon the City’s approval.  Quon’s continued overages, however, led the City to conduct an audit, pursuant to which they reviewed all of Quon’s text messages. The audit uncovered numerous personal text messages, some of which were sexually explicit in nature.  The City then allegedly disciplined Quon for the misuse.

The City had an employment policy related to electronic equipment and communications and although it did not specifically address text messaging, it warned employees that emails were not confidential, that only “light” personal communications were permitted, and that inappropriate or explicit language would not be tolerated. The court ultimately ruled in the City’s favor on the basis that the search of Quon’s messages was reasonable insofar as the City conducted the audit for legitimate work related purposes - to determine the necessity of the overages. Crucial to the Court’s finding, however, was that the City’s well-articulated policy informing employees that emails (and therefore similar communications such as text messages) were not confidential was sufficient to put Quon on notice that he had no expectation of privacy.  Once again, we see that the outcome of employment suits concerning electronic communications, for both public and private employers alike, is largely dependent upon the strength and detail of the company’s employment policy.

Obviously there are no one-size-fits-all company policies regarding cellphone, internet, email or computer use.  Policies regulating technology depend on many factors such as company size, industry, culture and the overall productivity of the employees. The most important considerations for employers in developing effective policies for electronic communications are to include every platform, to provide regular training to staff, to provide clear notice of the policies, and to  enforce the policies uniformly.  Of course, it is advisable to have an attorney review all of your policies on a regular basis to ensure that they keep pace with the ever-changing legal landscape in this area.

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