Think twice before you use your employer-provided computer, cell phone or pager for personal messages.
The U.S. Supreme Court on Thursday gave a strong nod toward an employer’s right to review what you do on employer-provided communication devices.
The opinion, actually a narrow ruling that rejected a policeman’s expectation of privacy on his department-issued pager, elicited sighs of relief from public and private employers nationwide.
In a unanimous 9-0 opinion, the high court said that the Ontario, Calif., officer had been made aware of department policy about pager use and that the department’s review of his use of pager minutes was conducted reasonably.
The case represented the high court’s first ruling on an employee’s privacy claims regarding personal messages sent on employer-provided equipment.
The opinion didn’t address far-reaching employee privacy rights in the workplace, and it specifically “counsel(ed) caution” against using the case “to establish far-reaching premises.”
Yet employment law attorneys considered the opinion a win for employers who worried that employees might be given a greater expectation of privacy for private use of company equipment.
“Given the prevalence of cell phones, pagers and smart phones in the workplace, an opinion like this can have far-reaching impact,” said Kansas City employment law attorney David Kight.
“It says to most employers that they may not be able to stay ahead of every technological development, but as long as they have a policy that clearly tells employees that, if they supply the equipment, then they (employers) can look at how it’s used.”
Surveys have indicated that more than three-fourths of employers believe it’s reasonable to allow employees to send personal e-mail or text messages on employer-provided equipment, as long as use isn’t excessive and doesn’t interfere with work.
At the same time, surveys have found that nearly half of employers say they monitor employee e-mail use with either automatic or manual reviews, and about one-fourth have fired workers for abusing e-mail or texting policies.
The case emphasizes the importance of having well-communicated workplace policies governing use of communication devices.
In an acknowledgement that “the ubiquity of those devices has made them generally affordable,” the opinion also noted that “employees who need cell phones or similar devices for personal matters can purchase and pay for their own.”
The Supreme Court accepted the case after an appellate court had ruled that the city of Ontario had encroached on the Fourth Amendment privacy rights of police Sgt. Jeff Quon when it looked at the content of his pager messages sent during his shifts over a two-month period.
The high court decided that the department’s review of Quon’s messages did not constitute an unreasonable search and that the police department had made all employees aware of its pager-use policy.
The opinion said the search “had a legitimate work-related purpose” — the police department’s research into whether its policy governing personal use of the department-issued pager had allotted an adequate amount of minutes or should be revamped — and “was not excessive in scope.”
In the opinion written by Justice Anthony Kennedy, the court spoke to the specific situation, disagreeing with Quon’s contention that it was an invasion of his privacy for his employer to even look at the content of his messages.
“Unfortunately for Quon, he wasn’t a very sympathetic defendant,” Kight said. “He was engaging in very sexually explicit texts.”
But, Kight emphasized that wasn’t the point around which the opinion revolved.
Rather, the court ruled that the employer had every right to review the texts in researching whether the department needed to change its wireless plan because of the continued use overages.
The department policy allowed employees to reimburse the department for private-use minutes that went over their business-related allotments.
“They just stumbled on the questionable content,” Kight said.
Quon had sent and received thousands of messages, many of which were sexual in nature, while at work from his then wife and a girlfriend.
“That the search did reveal intimate details of Quon’s life does not make it unreasonable,” Kennedy wrote.
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