The United States Supreme Court considered an employer’s policies on e-mail and texting use in a decision issued on June 17. As reported previously in this blog, City of Ontario v. Quon raised the issue of whether a governmental employer who reviewed the content of text messages sent using an employer-provided pager had committed an unlawful search in violation of the Fourth Amendment to the U.S. Constitution.
Quon was a SWAT team police officer who was issued a pager capable of sending and receiving text messages. The police department’s computer-use policy stated that e-mails would not be considered private and were subject to audit; however, the written policy didn’t mention anything about text messages. During a staff meeting, police officers were told that their texting would be subject to the same treatment as e-mail, meaning that the messages could be subject to auditing by the police department. However, department management also later told employees that the department had no intent of auditing messages to see whether text messages were work-related or not. So the police officers received, at best, mixed signals about the department’s policy regarding text messaging. When police management changed course and decided to review the transcripts of the text messaging to determine whether they were worked-related, Quon and others sued. They claimed that the review was an illegal search and seizure, in part because the department policy did not inform them that texts should not be considered private.
The Court did not make a clear decision on whether Quon should have expected privacy, and it stated that all such decisions would be highly fact-specific and case-by-case. Instead, the Court’s decision was that the department’s search of the transcripts was reasonable and, even if the employees should have expected privacy, the search did not violate the Fourth Amendment prohibition against unreasonable search and seizure.
The decision emphasizes the importance of having comprehensive written policies in place and especially, the need to clearly communicate those policies to all employees. The justices also cautioned that this area would continue to change as technology further develops. Employers should consider whether their own policies have kept pace with changing times. This applies to technology usage policies, but also every other area in which your current procedures aren’t clearly reflected in your policies.
Garlo Ward offers a thorough, customized employee policy manual that addresses these evolving issues. If your policies have fallen behind the times, then contact our office for a consultation on how we can implement a policy manual that’s relevant for your workforce today.
