High Court Upholds an Employer's Right to Review

In October 2001, the City of Ontario, Calif., police department bought two-way pagers for members of its SWAT team. The idea was that the pagers would help officers coordinate their response to emergencies. Based on the understanding that use of the pagers would be incidental, the department arranged a wireless plan that covered a limited number of messages each month.

Soon, Sgt. Jeff Quon and others in the department exceeded their monthly allotment. Quon's superior, Lt. Steven Duke, told Quon and others who went over the limit that if they reimbursed the city for any overages, their use of the pagers wouldn't be audited.

Quon took that as carte blanche to use the pager for personal messaging. Over the next three months, Quon routinely exceeded his monthly character limit, sending and receiving up to 80 messages in a single day at work.

Eventually, the department's chief got tired of chasing after employees for payment of the overages. He decided to conduct an audit to determine whether the department should increase users' monthly limit. The audit revealed that in August 2002 alone, Quon sent and received 456 messages during work hours. Only 57 had anything to do with police business. Many of the messages were sexually explicit missives between Quon and both his wife and his mistress, who also worked for the police department. Quon was disciplined.

Quon sued, contending that the audit was a violation of his Fourth Amendment rights. He argued that despite the department's explicit policy that said all communications could be monitored, he had a reasonable expectation that his messages would be private based on his supervisors' representation that he could simply pay for the overages.

As it made its way to the Supreme Court, public and private sector employers watched the suit carefully as a signpost for how constitutional principles will apply to modern technologies. Ultimately, the Supreme Court determined that the police department's search was reasonable.

"People were waiting for a pronouncement from the court that would adapt search and seizure law to the electronic age," says Michael Schmidt, a partner at Cozen O'Connor. "But the court ultimately took a cautious, wait-and-see approach."

Search with Purpose

The Supreme Court's analysis had two prongs--first, whether the employee has a reasonable expectation of privacy, and second, whether the employer's search was reasonable and narrowly tailored to a justifiable purpose.

In Quon, the court declined to address in detail whether the plaintiff's claim that he expected his messages to be private was reasonable. Instead the court gave the police department a pass because it narrowly tailored its review to a clearly legitimate purpose--determining whether the department should pay for more messaging capacity. The court pointed out that the city went out of its way to avoid excessive invasion of privacy by only reviewing messages sent during work hours.

"The court recognized that if the employer has a reasonable purpose for conducting a search and tailors its search to that purpose, that will generally trump the employee's privacy expectation," says Christine Lyons, a partner at Morrison & Foerster. "The search has to be reasonable in the context."

Indeed, context is key to the analysis of whether a search is reasonable. Other courts that have evaluated similar situations have found violations of employees' rights. For instance, in Stengart v. Loving Care, the New Jersey Supreme Court found that despite the employer's warning that all electronic activities would be monitored and stored, it was unreasonable for the employer to look at a worker's privileged communications with her lawyer after she filed an employment lawsuit. (See "What
to Search.")

"It came down to the importance of the right at stake," Lyons points out.

Lowering Expectations

However, the Supreme Court did not set a clear standard for determining when an employee's alleged expectation of privacy will be deemed "reasonable," which leaves room for lower courts to explore this question.

The key is for the employer to proactively manage employee's expectations with consistent, detailed communication that leaves no room for interpretation.

"Policies need to be revised and updated to reflect today's technologies--texting, blogging, use of social networking sites," says Fisher & Phillips Partner Tamara Devitt. "Make it clear where the employer is going to draw the line."

Experts advise that electronic-monitoring policies explicitly advise employees that not only will their activities be monitored, but also that anything they access at work will also be stored and subject to search.

As occurred in Quon, a supervisor can undermine even a clear and detailed policy by making statements that give the employee the impression that the policy won't be enforced or that certain activities are exempt from monitoring. The Supreme Court left open the question of whether a supervisor's statement can legitimize an employee's otherwise unreasonable expectation of privacy. Accordingly, it's essential that supervisors are trained not to deviate from the policy or make exceptions.

"Quon did not give much guidance on the question of expectation of privacy," Devitt says. "There will be more litigation on this issue."

National Outlook

Because Quon involved claims against a government employer, the decision will have a mixed effect on the private sector. Certain states, such as California, would apply almost an identical analysis to private and public employers. However, in New York and other states that do not recognize a common law tort for invasion of privacy, private sector employers are at less risk for lawsuits. Certain states, such as Delaware, Connecticut and Michigan, have statutes that explicitly limit private employers' rights to search employees' electronic communications. Employers operating in those states are subject to greater liability, and possibly even civil penalties, if a search is found unreasonable.

But the Supreme Court did make one pronouncement that will apply across the board--that the principles applicable to a search of an employee's physical office apply with at least the same force when the employer intrudes on the employee's privacy in the electronic sphere.

"Unfortunately, the Supreme Court didn't touch on some of the more far-reaching implications, but this was one thing that people were waiting for," Schmidt says.

Adele Nicholas

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