Can Employers Monitor Employee's Text Messages Sent Through Company Owned Devices?

 

In Quon v. Arch Wireless Operating Company, Inc., (June 2008), City of Ontario police department employees, and one employee's wife, brought a Fourth Amendment action against their employer, in connection with the department's review of employees' text messages, and asserted claim against wireless communications provider under Stored Communications Act (SCA). 

The facts of the case would seem to dictate that the City/employer was acting within its rights to review the employees’ text messages sent and received through the employer-issued PDA. While the City did not have a policy on point with regards to the pagers issued to the officers, the City did have a general “Computer Usage, Internet and E-mail Policy” applicable to all employees.  The policy stated that “[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy.” The Policy also provided:

C. Access to all sites on the Internet is recorded and will be periodically reviewed by the City. The City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.

D. Access to the Internet and the e-mail system is not confidential; and information produced either in hard copy or in electronic form is considered City property. As such, these systems should not be used for personal or confidential communications. Deletion of e-mail or other electronic information may not fully delete the information from the system.

E. The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated.

Furthermore, the plaintiff signed an Employee Acknowledgement that he “read and fully understand the City of Ontario's Computer Usage, Internet and E-mail policy.” The Employee Acknowledgment also stated that “[t]he City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice,” and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.” Furthermore, two years later, the plaintiff attended a meeting during which a supervisor informed all present that the pager messages “were considered e-mail, and that those messages would fall under the City's policy as public information and eligible for auditing.” 

These steps sound like they should protect the City and allow the employer to review the contents of the messages – right? Wrong.

The Ninth Circuit appellate court held that while the written policies lowered the employee’s expectation of privacy in regards to the content of the text messages, the “operational reality” (i.e., the supervisor’s laziness) change this expectation. The court reasoned that the employer established an “informal” standard of not reviewing the contents of the text messages as long as the employees paid for any overages that were incurred under the wireless plan. In fact, Plaintiff exceeded the texting plan on four occasions, he paid for the overages out of his own pocket, and the employer did not audit the content of the messages. Therefore, the court reasoned, this provided an expectation of privacy for the employees in the contents of the text messages. 

What are employers to do?

While the employer in the Quon case was the government, implicating a heightened privacy interest of the employees under the Fourth Amendment, the case still provides some good lessons for private employers:

  • Employers should have well drafted written policies that are up-to-date and deal with any new technologies that are being used in the workplace. 
  • Once appropriate written policies are in place, audit the content of employee’s communications over company-owned devises and document these audits to avoid the trap the employer fell into in this case. The employer should take steps to ensure that there is not an “informal” policy established due to the hardship of conducting audits that would give the employees an expectation of privacy in communications conducted over company-owned devises. 

 

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