On Monday April 19, the U.S. Supreme Court is scheduled to hear a case that has important implications for employers who provide cell phone texting and other electronic communications tools to their employees.
This case serves as a reminder to all companies to take precautions with electronic communications and the corporate policies that surround them: 1) Be certain to have a corporate policy in place that clearly addresses use of e-mail, text messaging, voicemails, Internet chat, and other communications. If the company will monitor or reserves the right to monitor these communications, then say so. 2) Be consistent with what the electronic communications policy states as far as employees’ expectations of privacy and whether the employer reserves the right to monitor content. If a company is committing a policy to writing, then do what it says, or change the written policy.
Read below for details on how inconsistent policy and practice landed an employer in a dispute before the U.S. Supreme Court.
In City of Ontario v. Quon, a SWAT team police officer was issued a city-owned pager capable of sending and receiving text messages. The formal policy of the police department prohibited personal use of e-mail and the Internet at work and stated that the communications could be monitored. However, the policy didn’t address the use of text messaging. Employees were later told, verbally, in a department meeting that texts would be treated the same as e-mail and that employees should not consider their messages to be private. Employees were also told that they would be responsible for any overage charges related to texting. Eventually, both sides settled into the routine that supervisors would not monitor the text messages as long as the employees paid for any overage charges related to texting.
Sergeant Jeff Quon used his pager to send text messages, some of them sexually explicit, to his wife and to a co-worker with whom he was having an affair. He always paid the overage charges that were incurred. However, at some point the police department decided it didn’t want the trouble of collecting payments for overages from its employees and asked the wireless service provider for a transcript of the messages of employees who were going over the texting limit. Quon, his wife (who was not a department employee), and others sued the police department, claiming a violation of the Fourth Amendment to the U.S. Constitution, which protects people against unreasonable search and seizure by the government. The federal district court hearing the original case found in favor of the police department; but on appeal, the Ninth Circuit sided with Quon and the other plaintiffs. Now, the U.S. Supreme Court will hear the case, for the first time considering how the Constitution affects electronic workplace communications.
When the Supreme Court issues its decision (likely in June), it will probably be narrowly tailored to address the Fourth Amendment situation in which a government employer is involved. However, all employers, public and private, would be wise to have policies that are clear and accurately reflect the company’s intent with regard to electronic messaging.