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The Supreme Court Considers the Privacy Rights of a Public Employee's Communications on an Electronic Device Provided by the Public Employer

September 1, 2010

Federal - Employment Law

Key Points:

  • Implication of electronic media on private as well as governmental employers.
  • Employers must have electronic media policies in place.
  • A search on employer's devices for electronic media transmitted during work hours subject to privacy implications.

 

The United States Supreme Court provided guidance to government employers regarding employee use of electronic media in City of Ontario, California v. Jeff Quon, et. al, ("Quon"), 2010 U.S. LEXIS 4972 (June 17, 2010). The Court held that a government employer's search of text messages sent and received on a work-issued device when the appropriate policy was in place did not violate Fourth Amendment search and seizure protections.

The Court approached the issue cautiously, however, so as not to upset the balance of the plurality in O'Connor v. Ortega, 480 U .S. 709 (1987). Although this case is not likely to create any shock waves in employment litigation, it did provide a number of guideposts to all employers in navigating through the choppy waters of monitoring electronic media.

In Quon, the City of Ontario issued pagers capable of transmitting text messages to its SWAT team, including Jeff Quon. Each member had a certain limit of characters per month pursuant to the City's service contract with a third party. The purpose of the pagers was to facilitate mobilization and response to emergency situations. The City's policy was as follows:

[The City] reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.

Quon signed an acknowledgment that he read and understood the policy. The SWAT team was instructed during a meeting and a through a follow-up memorandum that, despite the fact that they were not routed though the City's server, text messages would be covered under the policy.

After the pagers were distributed, Quon exceeded the allotted number of characters under the City's plan. Quon's supervisor reminded him of the policy but that "it was not his intent to audit the messages to see if the overage was due to work-related transmissions." The supervisor suggested that he reimburse the City for the overages. Quon continued to exceed the limit and pay for overages. The chief performed an audit to determine whether the existing character limit was too low, causing employees to incur personal cost. The Chief requested transcripts of the text messages from the third party. Many of Quon's text messages were found to be personal. The matter was turned over to internal affairs, and it was concluded that Quon violated City policy.

In its analysis, the Court looked to the 1987 case of O'Connor v. Ortega, which involved the search by hospital administration of an employee's physical office, as guiding case law in its leap into the electronic world. If it is found that the individual has an expectation of privacy, the "employer's intrusion on that expectation for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."

Despite the policy in place and the specific instruction that texts would fall under that policy, Quon maintained that he had an expectation of privacy because of his supervisor's statement that an audit would be unnecessary if Quon paid for the overages. The Court acknowledged the swiftness with which technology changes and how employees' privacy expectations may change; therefore, in crafting its holding, the Court "assumed" that (1) Quon had a reasonable privacy interest in his text messages; (2) review of the transcript constituted a Fourth Amendment search; and, (3) the principles applicable to a government employer's physical office apply to the electronic media world.

Accordingly, the Court focused on whether the City violated Quon's Fourth Amendment right through its search. In the O'Connor opinion, the Court recognized that if the search was conducted for a "non-investigatory, work-related purpose[e]" or for the "investigation[n] of work] related misconduct," a government employer's warrantless search is reasonable if it is "justified at its inception" and if the "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search." Citing O'Connor, supra at 480 U.S. 725-726. The Court held that the search did meet the standard applied under O'Connor and was, thus, reasonable.

In so finding, the Court recognized that the search was reasonable because its purpose was to determine whether the character limit was exceeded for work-related purposes and to ascertain whether an upgraded character plan was necessary. The Court noted that the search was not "excessively intrusive" due to the two-month scope of the review and that the audit was limited to on-duty messages. Importantly, Quon should have expected, due to his SWAT team position, that it may be necessary to audit the messages for emergency purposes. The Court held that because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable.

In relation to Quon's impact on the employment world, the following points are instructive:

  • All employers must have policies in place for all electronic transmissions, require the employees to acknowledge receipt of the policy, and demonstrate efforts to ensure that employees understand the policy.
  • Instruct supervisory employees to not make exceptions to or make comments about the application of the electronic media policy in place that would undercut the policy.
  • Employees retain a modicum of a right of privacy even if a policy is in place and the electronic media is contained on a work-issued device.
  • Be prepared to articulate the intent of any search of electronic transmissions.

 

As with all other employment relations activities, it is crucial to document policies, the distribution and understanding of such policies and the basis for any employment relations activities in order to withstand the scrutiny of litigation.

* Danielle Vugrinovich is an associate in the Pittsburgh, Pennsylvania, office and can be reached at (412) 803-1185 or dmvugrinovich@mdwcg.com.

Defense Digest, Vol. 16, No. 3, September 2010

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