California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

On June 17, 2010, the United States Supreme Court issued a unanimous ruling in the case of City of Ontario v. Quon  holding that a California Ontario police department did not violate the Fourth Amendment when it searched an officer’s text messages made on a department-issued pager. The case arose when respondent, Jeff Quon, a police officer with the City of Ontario’s SWAT Team, exceeded his monthly messaging limit on a city-issued pager thereby causing the city to incur overage charges. After at least two other officers exceeded their monthly character allotment, the department audited two months worth of text messages to determine whether the department’s monthly plan was adequate. During the course of the audit, it was discovered that many of the messages sent by Quon were not work-related and some were of a sexual nature. Quon filed suit against the City of Ontario alleging violation of the Fourth Amendment and the Stored Communications Act (SCA). 

The case presented the Court with an opportunity to address the issue of whether employees have a reasonable expectation of privacy in electronic communications made on employer-issued devices. However, the Court refused to make such a broad ruling stating that “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” It assumed that the principles governing the search of an employee’s physical office space also apply to the search of electronic communications. As such, a search conducted for a non-investigatory, work-related purpose is reasonable where the search is “justified at its inception” and “not excessively intrusive.” The Court concluded that the city’s search in Quon was reasonable, because the city had legitimate work-related purposes for the search (i.e., to determine whether the monthly messaging limit was sufficient and whether the department was paying for excessive personal messaging). Moreover, the scope of the search was not excessively intrusive, because it was restricted to two months worth of work-hour messages.

Although Quon only applies in a public employment context, there are lessons to be learned for employees in both the public and private sector. Here are a few precautions all employees should consider:

• Request a copy of your employer’s electronic communications policy and become familiar with its terms
• Assume that electronic communications on an employer-issued device are not private and may be reviewed
• Restrict your electronic communications to work-related activities

If you do fall subject to a search, remember that your employer must have a work-related purpose and the search must be limited in scope. Should you have any questions regarding the legality of a search, do not hesitate to contact an experienced California labor law attorney for an unbiased evaluation of your situation.

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Traditionally, employers have been allowed to play the role of private investigator when it comes to monitoring employees’ electronic communications over company provided devices. The rational is that the employer owns the equipment and, therefore, should be allowed to review its contents. Review of employee emails and text messages allows the employer to monitor efficiency, business disclosures, and proper use of company equipment. According to a 2005 survey conducted by the American Management Association, over half of employers review and retain employee emails and 84% have company email policies.  These statistics reflect the fact that employee monitoring is generally accepted and only minimally regulated.

The right to personal privacy is generally considered a liberty protected against government interference by the Constitution’s due process clause. The federal Electronic Communication Privacy Act of 1986 was designed to specifically protect personal electronic communications from interception by government entities without a warrant. Protection of electronic communications from interception by non-government entities is left to the states. Thus, the best protection of an employee’s right to privacy is found in tort law. California is the only state that recognizes a state Constitutional right to privacy. Invasion of privacy occurs when one intentionally intrudes upon the private activities of another and the invasion would be highly offensive to a reasonable person. Additionally, there must be a reasonable expectation of privacy. 

As technology has advanced, the number of lawsuits involving the wrongful interception of employees’ personal electronic communications has increased. In these cases, the courts will weigh the employee’s reasonable expectation of privacy against the employer’s legitimate business interests. In the past, courts almost always ruled in favor of the employer, but recent decisions have begun to shift this trend.

In the case of Stengart v. Loving Care Agency, Inc., et al, No. A-3506-08T1 (S.C.N.J. June 26, 2009), the employer intercepted an email from an employee to her attorney via a personal, password-protected Yahoo account. The Court rejected the notion that the employer could intercept private communications simply because it owned the computer used to make such communications. It stated that“property rights are no less offended when an employer examines documents stored in a computer as when an employer rifles through a folder containing an employee’s private papers.”  The Court further noted that the principles underlying the attorney-client privilege outweighed the employer’s interest in imposing a unilateral regulation.

Following in the footsteps of Stengart, Convertino v. US Department of Justice, No. 2004-CV-0236 (RCL) (D.D.C. Dec. 10, 2009) held that the Department of Justice (DOJ) could not intercept emails sent by an employee to his personal attorney because it violated the attorney-client privilege. The Court, citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005), stated that “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” The employee in Convertino had a reasonable expectation of privacy because the DOJ policy did not ban personal use of email and employees were unaware that the DOJ regularly accessed and saved personal emails.

In the recent case of City of Ontario v. Quon, the 9th Circuit Court of Appeals considered an employees’ right to privacy when sending text messages. In this case, a police officer complained when the department intercepted text messages sent on a government-provided device. The official policy of the department contained no guarantee of employee privacy to text messages; however, the informal policy indicated that text messages would not be reviewed as long as employees paid for charges over the government allowance. The Court ruled that the informal policy gave the police officer a “reasonable expectation of privacy” and the department violated the officer’s fourth amendment rights. Unlike email that is paid for and stored on company equipment, the text messages were paid for by the employee and stored by the telephone company; therefore, the employee had a right to privacy.  On December 14, 2009, the US Supreme Court agreed to hear the case on appeal. The decision will have a great impact on employees’ privacy rights regarding electronic communications.

Until employee privacy rights become more defined, employees should exercise a high level of discretion when using electronic equipment provided by their employers.

Strategy:

1. Obtain a copy of your employer’s electronic communications policy. Generally, company policies are legally binding and must be adhered to by employees.

2. Do not assume a right to privacy while at work. To the extent possible, use company equipment for work purposes only.

3. If you have discovered that your personal emails, text messages, or other private communications have been reviewed or retained by your employer, contact an experienced California labor law attorney to discuss your rights.
 

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