In our April e-update, "No Loving in Work E-mail", we commented on a case involving an American employee who used a laptop provided by her employer to send and receive e-mails to and from her lawyer. When she left her employment, and brought an action against her former employer for constructive dismissal, the court held that her employer could not rely on her personal e-mails to defend the case raised against them.
The Supreme Court of the United States has addressed a similar issue in another case, but this time has found in favour of the employer.
Jeff Quon was a police sergeant and member of the City of Ontario SWAT Team, employed by the Ontario Police Department (OPD). In the course of his employment, he was provided with an alphanumeric pager which was capable of sending and receiving text messages. Under OPD's service contract, the pager was allotted a limited number of characters which could be sent or received each month. Usage in excess of that amount was subject to an additional fee, payable by Mr Quon.
Mr Quon persistently exceeded the monthly character limit on his pager, and despite reimbursing OPD for his excess usage, OPD decided to investigate the reasons why the limit was exceeded. OPD wanted to know whether the character limit was too small, to ensure that employees were not paying a bill for sending work-related messages.
OPD ordered transcripts of the messages sent by Mr Quon over a two month period. They redacted the messages that were sent by Mr Quon when he was off duty and reviewed the content of the messages sent by him during working hours. They found that many of his messages were not work related, and in fact some were sexually explicit. Accordingly, OPD disciplined Mr Quon who in turn raised an action against OPD for breach of his Fourth Amendment rights "against unreasonable searches and seizures".
The Court found that OPD had not breached Mr Quon's Fourth Amendment rights. This was for a number of reasons:
- Before issuing Mr Quon with the pager, OPD had announced a "Computer Usage, Internet and E-mail Policy" which applied to all employees. It provided that OPD reserved the right to monitor and log all network activity including e-mail and internet use without notice, and that users should have no expectation of privacy or confidentiality when using these resources. Whilst the Computer Policy did not specifically apply to text messages, OPD had made it clear to its employees, including Mr Quon, that they would treat text messages in the same way as they treated e-mails.
- Mr Quon had signed a statement acknowledging that he had read and understood the Computer Policy.
- Within the first two billing cycles of the pager, when Mr Quon exceeded the character limits, he was reminded that messages sent on the pagers were treated the same as e-mails and could therefore be audited.
- The transcripts of the messages were obtained for a justified purpose i.e. to ensure Mr Quon was not paying for work related communications.
- The steps taken during the investigation were not unreasonable – OPD obtained the transcripts of only two months in which the character limits were exceeded (as opposed to every month), and redacted the messages sent outwith work time.
Whilst the outcome this time was in favour of the employer, the message is the same – make sure you have clear policies and procedures in place imposing boundaries on employee’s use of employer provided devices, including laptops, blackberries, mobile phones and pagers. Well drafted policies are the employer's safeguard in cases involving disputes of this nature - make sure your staff know exactly what they can and can't do, manage their privacy expectations, and employees…. err on the side of caution when using work devices for personal use.