High Court’s Privacy in the Workplace Ruling Favors Employers

In the latest case testing the limits of privacy and personal communications in the workplace, U.S. Supreme Court justices upheld an Ontario Police Department’s search of an officer’s text messages in a unanimous ruling June 17.

The case, City of Ontario v. Quon, 08-1332, grew out of a Police Department audit of text messages, which turned up sexually explicit messages on police Sgt. Jeff Quon’s city-issued work pager.

Justice Anthony Kennedy noted that in one month alone, Quon sent or received 456 messages during work hours, including 400 that were personal.

Despite a city policy stating that employee communications would be monitored, Quon’s supervisors indicated they would not audit the text messages of any employees who exceeded the city’s monthly 25,000-character limit, so long as they paid the overage fees.

The formal policy, accompanied by an informal practice, created a dispute regarding enforcement. Quon and two others sued the city after a supervisor requested transcripts of the text messages from Arch Wireless Inc. and found the revealing messages.

The 9th U.S. Circuit Court of Appeals in San Francisco said the informal policy was enough to give the officers a “reasonable expectation of privacy” concerning their text messages. But the high court reversed the ruling, without deciding whether Quon had a reasonable expectation of privacy. It said that even if he did, the search itself was considered reasonable.

While the court didn’t lay down any broad rules concerning privacy and electronic communications in the workplace, the move suggests that governments can check to be sure employees are following the rules.

Craig Schloss, a San Diego attorney with Morrison & Foerster LLP who specializes in employment and trade secret litigation on behalf of employers, said the decision suggests “that the balance weighs heavily from the outset in favor of the employer.”

“I think it’s a sign that if the employer has a legitimate business interest, it doesn’t have to be compelling, that it’s going to trump the employee’s privacy interests,” he said.

John Alessio, an employment attorney with Procopio, Cory, Hargreaves & Savitch LLP, said it’s advisable for employers to “list the kitchen sink” in their policies with regard to various forms of electronic communication.

“In this day and age, you can even save information to cell phones,” he said. “Even a cell phone is a hard drive.”