MONITORING EMPLOYEE COMMUNICATIONS? IMPLEMENT A POLICY AND ENFORCE IT!

Recently, the Ninth Circuit Court of Appeals held that a text-message provider violated a federal statute by disclosing to the employer sexually explicit text messages sent by an employee using an employer-owned text message/pager. The court also held that the employer (a public entity) violated the constitutional rights of its employee and those with whom he communicated by reviewing the content of the messages.

Background:

In Quon v. Arch Wireless Operating Co., No. CV-03-00199 (June 18, 2008), the employer, a California City, issued text-messaging pagers to its police officers. The City's service contract with the provider allowed a limited number of characters per month for each pager. After one of the plaintiffs, Sergeant Quon, exceeded the allotted number of characters several times, his supervisor told him that if he paid the extra charges, the City would not audit his messages. Eventually, the City became concerned about the extra charges, and conducted an investigation to determine whether it needed to increase the character number allotment in its contract to allow for work-related communications. When the City obtained transcripts of the messages from the service provider, it discovered that Sergeant Quon had been sending personal and sexually explicit messages to his wife and co-workers.

Sergeant Quon, his wife, and two other police department employees with whom he had exchanged text messages then brought suit against the service provider and the City. Although the plaintiffs brought several claims under federal and state law, the only claims considered by the Court of Appeals were a claim against the service provider under the federal Stored Communications Act and a claim against the City for violation of the plaintiffs' privacy rights.

The Stored Communications Act prohibits the disclosure of stored e-mail or text messages without the consent of the sender or the recipient. The court held that the service provider violated the statute by disclosing the content of text messages to Sergeant Quon's employer, even though the employer was the subscriber on the service contract. As the subscriber, and not the user of the device or the recipient of the messages, the employer had no right to consent to the release of the employee's text messages.

With respect to the privacy claims against the City, the Court's analysis focused only on the Fourth Amendment of the United States Constitution. The Court concluded that Sergeant Quon and those with whom he exchanged text messages all had a reasonable expectation of privacy with respect to their text messages, and the City's review of those messages was unreasonable.

What This Means For Employers:

The court's holding that the City violated the U.S. Constitution has no direct impact on private employers. However, the court's conclusion that Sergeant Quon and the other plaintiffs had a "reasonable expectation of privacy" with respect to the content of their text messages is significant for private and public employers in California. California's constitutional right of privacy applies to public and private entities alike, and a "reasonable expectation of privacy" is one of the elements of a California privacy claim.

To diminish employees' expectations of privacy with respect to employer-provided communication resources, employers should take the following steps:

• Implement immediately, if you have not already done so, a policy that warns employees that their use of employer-provided electronic devices may be monitored. A well-drafted policy can diminish employees' expectations of privacy by giving them notice that the employer may monitor the use of its electronic communication resources, including computers, network equipment and other electronic devices. The policy should also advise employees that these devices are provided for business related use only, and that employees therefore have no expectation of privacy in their use of them. (Note, however, that such policies will not diminish any expectation of privacy that third parties who communicate with employees may have with respect to the content of their messages).
  
  
• Follow the policy. Part of the City's problem in Quon was that it had a policy that permitted monitoring, but Sergeant Quon's supervisor assured him that the City would not read his messages so long as he paid for the extra charges resulting from his overuse of characters. Employers should take whatever steps are necessary to ensure that IT personnel and others involved with the monitoring of electronic devices do not undercut the policy.
  
  
• Caution! Even when employees' expectations of privacy are diminished, the Stored Communications Act mandates that an employer proceed with caution when attempting to review the content of communications that are stored by a third party service provider.