Jon Vegosen briefs us on important developments regarding employee texting.

The United States Supreme Court addressed employer monitoring of employees’ text messages for the first time on June 17, 2010 in the case City of Ontario v. Quon.  The opinion underscores the need for employers to address text messaging and other newer forms of electronic communication in the policies they issue to their employees.

The Court held that a police department’s audit of text messages by an officer who had repeatedly exceeded the department plan’s monthly character limit did not violate the officer’s Fourth Amendment rights.  During the audit, intended to determine whether the character limit was too low, the department came across a number of personal and often graphic messages the officer sent while on duty.
While the Fourth Amendment applies only to public employers, courts apply a similar analysis to privacy claims by non-government employees.

The Need for Privacy Policies

The court refrained from deciding whether employees have an expectation of privacy in text messages, instead deciding the police department’s search would be reasonable regardless.  Absent a clear rule regarding employees’ expectations of privacy in text messages, it is largely up to employers to shape these expectations.

Even employers who do not foresee monitoring employees’ communications need to keep their options open in case the need arises.  Employers should make clear that employer issued communication devices are subject to monitoring or searching and that employees do not have a right to privacy in connection with these devices.  While many employers program their computers to display a warning to this effect every time an employee logs on, this might not be feasible for other communication devices.  It is therefore important that employers regularly communicate their monitoring policies and confirm employees’ acknowledgement of them.

After adopting such a policy – and ensuring that employees read and sign it – employers should make sure not to informally downplay the policy or make any assurances that they will not enforce the policy.  While the Supreme Court did not review this issue, the appellate court in Quon found that the police department may have effectively waived its policy by verbally assuring officers that their communications would not be searched as long as they paid for any overage charges.

Conducting Permissible Searches

The Supreme Court also provided guidance regarding what kind of search an employer may conduct.  First, it held that a search should be conducted for a work-related purpose.  In Quon, for instance, the search was intended to determine whether the department needed to change its text messaging plan, not to investigate the officer’s private life.  The Court held that the fact the search unintentionally discovered personal text messages was irrelevant.  One of my partners, Damon Dunn, emphasized this point in an interview with the Los Angeles Times.  As Damon put it, employees “need to anticipate their communication devices may be monitored for seemingly routine business purposes, even if the search reveals intimate and embarrassing information.”

Second, the court held that the scope of a search must be reasonable and the search must be targeted towards the employer’s legitimate, work-related purpose.  The Quon Court rejected the argument that an employer must conduct searches in the least intrusive possible way – for instance, by allowing the employee to redact his personal messages beforehand.  It did, however, compliment the department’s efforts to minimize intrusiveness by redacting off duty texts and limiting its search to a two month sample.

Third, the Court indicated that it would look favorably upon searches that are in accordance with the employer’s policies and guidelines.

Finally, the Court held that the fact that the department’s service provider might have violated the federal Stored Communications Act by turning over the officer’s text messages to the police department did not render the department’s own search unreasonable.  This holding offers some comfort to employers because it indicates that they should be able to search employee communications hosted by third parties to the same extent that they can search communications on their own systems without risking additional liability under statutes aimed at service providers.  Still, employers should not collude with or encourage service providers to illegally turn over employee information.

Jon Vegosen is a founding member of Funkhouser Vegosen Liebman & Dunn Ltd. and has more than 33 years experience practicing law.  He is nationally recognized for his work in labor and employment relations and is sought after as an author and spokesperson on labor and employment issues.

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