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July 13, 2010

Are Your Electronic Communication Policies Up To Date?

On June 17, 2010, the U.S. Supreme Court issued a decision directly affecting a public employee's right to privacy in communications sent and received on employer-provided equipment and networks. The Justices unanimously agreed that an employer's search of text messages sent and received on an employer-provided pager was a reasonable search under the Fourth Amendment. Although the decision applies only to public employers, it is instructive to all employers that issue company electronic communications devices, such as pagers, cell-phones and Blackberries, to its employees.

The case, City of Ontario v. Quon, involved the Ontario Police Department's review of text messages sent and received by one of its employees on an employer-provided electronic pager. Pursuant to the City's "Computer Usage, Internet and E-mail Policy," employees were warned that electronic communications could be monitored and that the employees had no expectation of privacy in the use of City-issued equipment.

Each officer was issued a pager for work and allotted a monthly character limit. When an employee exceeded his monthly limit, the text messages would be audited to ensure the pager was being used only for business-related purposes. In practice, however, the City would not audit the text messages if the employee agreed to pay for the overage costs. That practice notwithstanding, after the plaintiff exceeded his monthly allotment several times, the City decided to audit the plaintiff's text messages. During the audit, the City discovered that the plaintiff sent and received several sexually explicit text messages. The matter was subsequently referred to the internal affairs department and the plaintiff was disciplined. The plaintiff sued alleging the audit was an unreasonable search in violation of his Fourth Amendment rights.

In its holding, the Supreme Court acknowledged that rapid changes in communications and technology make it difficult to craft a bright-line rule concerning "employees' privacy expectations vis-à-vis employer-provided technological equipment." Therefore, the Court assumed, without deciding, that the plaintiff had a reasonable expectation of privacy in the text messages. However, the Court held that the search was reasonable under the Fourth Amendment because a government employer has a legitimate interest in ensuring that (a) employees are not forced to pay out of their own pockets for work-related expenses and (b) the City is not paying for extensive personal communications.

Additionally, the Court noted that expectations of privacy are relevant when assessing whether a search is reasonable. To that end, the Court suggested that "employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent such policies are clearly communicated."

Based on this ruling, it is clear that all employers, public and private, should have a clearly defined electronic communications policy that reflects the current state of technology. Doing so will help define employees' expectation of privacy and will assist employers in defending technology-related privacy claims. Employers should also require employees to review and sign a copy of the policy. Furthermore, the policy should be periodically reviewed to ensure it adequately protects the employer's interests and encompasses the latest form of technological communication and social media.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in or Labor & Employment practice area.


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