|
Go Back
Author: Kirby Smith, Litigation Department
June 29, 2010 - A unanimous U.S. Supreme Court ruling upheld a search of the text messages of a police officer's department-issued pager. However, the Court avoided far-reaching pronouncements because of the fast pace of evolving technology and the difficulty of the law to keep up with it. The Court also left the employee privacy issues unresolved. Still, the ruling underscores the need for employers to shore up their privacy and electronic communications policies to make sure they are clear and not undermined by informal workplace practices.
The Court's decision in City of Ontario v. Quon (08-1332, June 17, 2010) is a well reasoned, but limited decision. Sgt. Quon and others were informed verbally and in writing by their employer, the City of Ontario, that text messaging was considered to be like e-mail, which was subject to a written policy permitting auditing/monitoring, with or without notice, and declaring that employees had no expectation of privacy or confidentiality when using those resources.
The City's text messaging contract included a monthly limit on the number of messages. However, when Quon exceeded his limit for several months, Quon's supervisor told him and others that personal use would not be audited if all overage charges were reimbursed to the City. Quon commenced reimbursing the City for overages. Later, the police chief decided to investigate whether the existing limit for text messages was too low, and audited two months of Quon's text messages as a result (including reviewing the content of those messages). Quon sued, claiming that he had a reasonable expectation of privacy in his messages and that the City’s review of the messages constituted an unreasonable search under the Fourth Amendment.
The Court held the City did not conduct an unreasonable search when it obtained and reviewed transcripts of his personal text messages. The Court ruled the officer's rights were not violated because the search was motivated by a legitimate, noninvestigatory, work related purpose, and was not excessive in nature, avoiding the question of whether there was a reasonable expectation of privacy. See also O'Connor v. Ortega, 480 US 709 (1987). Further, the Court took great pains to attempt to limit the reach of its ruling. "Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices," wrote Justice Kennedy. "A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted."
Nevertheless, employers can learn a great deal from this opinion. Although Quon dealt with government employees, the opinion was clear that employees in the private sector may in some circumstances have an expectation of privacy in their communications on employer-provided equipment.
First, the decision provides some guidance for employers and reaffirms that these kinds of searches can be appropriate if they are motivated by legitimate work-related concerns and are not excessive in scope.
Second, while declining to resolve whether Quon had a reasonable expectation of privacy in his text messages, the Court sent the message that a robust privacy policy mattered. "And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated." Surprisingly, a recent survey indicated that 46% of employers still do not have a formal policy for social media use inside and outside the workplace. These corporations should have such a policy, and these policies should also say that no one has the authority to alter the policy unless the exception is provided in writing and signed by someone like the CEO, in order to avoid the pitfall created by Quon's supervisor when he verbally modified the written policy.
Third, the opinion strikingly recognizes that privacy rights and technological developments in the social media context are fluid and unstable. The Court's intentionally vague approach appears designed to allow all district courts to maintain the ability to nimbly shift the competing rights and obligations of the parties as technological advances rage on. Given this, determining the scope of employees’ legitimate privacy interests and the reasonableness of employer investigations in future cases is still a dicey proposition.
In conclusion, employers should adopt clear policies for the workplace that encompass all forms of electronic communications and seek to limit employees' expectation of privacy. These policies should state no one has the authority to alter the policy except in limited circumstances. When conducting workplace investigations implicating employee privacy rights, employers further must ensure that the investigation is for legitimate, work-related purposes and is not excessive in scope.
As always, Lionel Sawyer & Collins is available to answer any questions you may have regarding this matter, as well as offer assistance in developing or revising polices on privacy and social media. Please contact Kirby Smith in our Las Vegas office at (702) 383-8888 for further assistance.
About the Author
Kirby Smith is a partner in Lionel Sawyer & Collins’ Litigation Department and labor and employment practice group. His practice emphasis is on employer representation in a variety of employment cases including ADA, FLSA, and workers’ compensation, as well as personal injury defense cases, including product liability and mass torts.
About Lionel Sawyer & Collins
Nevada’s largest private law firm, Lionel Sawyer & Collins offers a full range of legal services, including gaming and regulatory law, litigation, government relations, commercial transactions, labor and employment law, environmental, bankruptcy, banking, trusts and estates, health care and corporate law. Lionel Sawyer & Collins’ Nevada offices include Las Vegas, Reno and Carson City. For more information about Lionel Sawyer & Collins’ practice and attorneys, please visit www.lionelsawyer.com.
The contents of this Client Alert may not be reproduced without the written permission of Lionel Sawyer & Collins. This Client Alert is intended for information only and is not to be considered legal advice. This Client Alert is not a substitute for analysis of any particular situation by a trained practitioner. In such circumstances, the services of a competent attorney should be sought.
|
|
