A recent United States Supreme Court decision, City of Ontario v Quon, sheds light on employers' rights and responsibilities with respect to monitoring employees' electronic communications.
In Quon, the City of Ontario, California provided its police officers with pagers that had text messaging capabilities. Under the City's "Computer Usage, Internet and E-Mail Policy," the City reserved the right to monitor officers' communications. The City billed officers for exceeding a monthly text character limit. When Sergeant Jeff Quon exceeded this limit month after month, the City audited his messages. The City learned that Quon had been sending a number of personal and sexually explicit messages during work hours, and disciplined him. Quon sued for invasion of privacy.
In a 9-0 ruling, the Supreme Court found that the City's search was a reasonable and efficient way to determine if the overages were work-related or personal. Although the Court simply assumed that the Ontario officers had an expectation of privacy, it noted that "employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated."
The Quon decision provides two important practice tips for employers, both public and private, who supply their employees with a means of e-communication. First, it is critical that employers implement and distribute a clearly-written technology policy that removes any privacy expectation employees may have when using employer-supplied equipment. Managers and supervisors should be trained in the policy so as not to give employees the impression that their communications are, despite the policy's language, private.
Second, employers should consider the purpose and scope of their search. The Court approved the rationale behind the Quon search because the City had a legitimate interest in ensuring that their employees were not paying for work-related messages, and that the City was not paying for extensive personal messaging. The Court noted that the scope of the search was appropriate. Significantly, the City only obtained a relatively small sample of Quon's messages, and reviewed only messages sent during work hours. While private employers ultimately may not be held to the same legitimacy standards as the City in this case, such limited searches are more likely to be viewed favorably by courts.
The Court's decision in Quon highlights the importance of clearly-drafted technology policies and legitimate, reasonable searches of employees' messages.