Posted by Melissa Fleischer, Esq. on Mar 1st 2010


A hot topic for employers right now is keeping up with all the new technology and creating policies and practices to ensure lawful compliance with the employment discrimination laws as they intersect with all the new types of technology.  We have noticed that one of our most popular webinars now is our webinar on drafting policies for the new social media including creating legally compliant policies for blogging, cell phones and text messaging.  This webinar is so popular because employers are literally scrambling to figure out how to handle this explosion of social media in the workplace.

Of course, together with this social media explosion come a host of legal issues that employers are exposed to and need to plan for.  One interesting issue that has arisen is the issue of an employee’s right to privacy when their employer monitors and reviews their text messages.  The US Supreme Court has recently agreed to hear such a case which should lend some guidance on this technologically advanced legal issue.  However, since this case involved an action by an employer that was a city, it involved the Fourth Amendment prohibition against unreasonable search and seizures which would not be applicable if this situation arose with a private employer.  Nevertheless, many employment lawyers are awaiting the outcome of this case to provide some direction on this interesting issue.

In this case, Quon v. Arch Wireless Operating Co., the Supreme Court will decide whether the City of Ontario in California violated Seargent Quon’s,  constitutional right to privacy when it reviewed text messages that he sent on his pager provided by the City.  Mr. Quon was a Seargent on Ontario’s SWAT Team.  The employer in this case, the City of Ontario, had the standard language in its e-mail policies stating that employees should not have any expectation of privacy and that the electronic messages could and would be monitored by the City.  When the pagers were given to the employees, they were given a copy of the e-mail policy and told that it applied to the text messages on the pagers.

However, it turned out that there were statements by Seargent Quon’s supervisor to Seargent Quon stating that the text messages would not be monitored as long as any employee that went over in the amount of text messages they were allotted for the month paid for the overages. In addition, it turned out that the City had not actually monitored Mr. Quon’s pager or any of the other police officers’ pagers for a period of approximately eight months after the employees were given the pagers.

When the City started monitoring Quon’s text messages, they found that he had used the pager and text messages for his own personal use which was a violation of the City’s e-mail policy and that there were some sexually explicit text messages.  The Seargent and his wife sued the City of Ontario claiming a violation of their right to privacy.  The Ninth Circuit issued a decision in this case holding that the City of Ontario had violated Mr. Quon’s right to privacy.  Crucial to the Ninth Circuit were the fact that although the City’s policy stated that employees should have no expectation of privacy, this had been negated by both the supervisor’s statements as well as the practice of the City of not monitoring the text messages for such a long period.

It will be interesting to see what happens when the Supreme Court decides this case which should happen by June 2010.  One thing is clear.  Employers need to be extremely careful to not take any action that would be inconsistent with the declaration in their policy that employees should not have any expectation of privacy.  Just as with at-will employment, it appears that a supervisor’s statements that are contrary to an employer’s policy and an employer’s actions that are inconsistent with that policy can negate the statement in the policy and destroy the employer’s defense in such cases.  Moreover, it is important for employers to not just use the e-mail policies they have as the City of Ontario did in this case, but rather to develop and create legally sound social media policies that adequately address all of these important issues.

The lesson for employers is clear.  Not only is it important to have well-drafted social media, cell phone and texting policies but it is equally important to provide training to your managers so they understand how to avoid making any statements that could negate the no expectation of privacy statement in your policy.  The training should also help employers ensure that their practices and actions are consistent with the policy and don’t defeat the representations in the policy.  If you state that you will be monitoring employees’ text messages, clearly you should ensure that you are doing this on a consistent basis to prevent an employee’s arguments that your failure to do so provided him with a reasonable expectation of privacy despite the statement to the contrary in the policy.

It is not easy for employers to stay one step ahead in this ever changing technologically advanced world we live in.  However, with proper guidance on how to draft effective policies and proper training, employers can manage to ensure that their workplaces are legally compliant and that they are protected from the legal landmines that the 21st century social media and technologies have brought.