Hint: U.S. Supreme Court Says Yes
By Richard Fey and Christin Kim
Employers may monitor text messages sent by employees on employer-issued devices, according to a recent U.S. Supreme Court ruling. However, in spite of this decision, questions concerning the expectations of privacy in the workplace remain unanswered. Here’s the background on the decision.
Sergeant Jeff Quon and other members of the City of Ontario's SWAT team were issued pagers for use on the job with a limit on the number of messages per month that could be sent. Officers were notified that text messages "would fall under the City's policy as public information and would be eligible for auditing."
Quon and other team members exceeded their allotted number of texts, but claimed that despite the City's stated policy, a supervisor had verbally informed them that their messages would not be audited. After examining Quon's messages, Chief Lloyd Scharf and an investigator determined that the majority of the text messages were of a personal nature and many were sexually explicit.
Quon, and others with whom he exchanged messages sued the City and its mobile device service provider. The case eventually wound its way to the U.S. Supreme Court, which reversed a lower court ruling in City of Ontario v. Quon and held that a public employer's monitoring of an employee's personal text messages on an employer-issued device was not a violation of the Fourth Amendment of the U.S. Constitution.
What the Court did not do, however, was address the larger issue of employees’ expectation of privacy in electronic communications sent and received on devices owned by their employer. Instead, the Court focused solely on the reasonableness of the employer's search.
Implications for Associations
The Court cautioned against a broader decision due to the rapid changes in the dynamics of communication and information technology. Although such a limited decision by the Court fails to provide much clarity on the already complex issue, there are several practices associations should consider implementing to minimize the risks of legal liability:
1. Establish a well-written social media and electronic communications policy. Clearly communicate the policy and its impact on the reasonable expectations of association staff.
2. Communicate employees' reduced expectation of privacy in the association's established policy.
3. Conduct routine management training to ensure consistency between management's day-to-day practices and the established policy. During monitoring and auditing, (1) identify a legitimate business reason for searching employees' electronic communications; and (2) structure the content review to minimize the scope of the employees' intrusion.
Associations and other employers need to be conscious of the rapidly evolving area of electronic communications and consult with counsel regularly regarding any new developments in technology and the law.
Richard Frey is a partner and Christin Kim is an associate for labor and employment at Venable.