Is Texting On An Employer Provided Cell Phone Private?

The Supreme Court will soon consider the case of a California SWAT team member whose sexually explicit text messages cost him his job.  In City of Ontario v. Quon, the Justices will decide whether an employee has a reasonable expectation of privacy in messages transmitted through an employer provided means of communication.  At stake is the balance between employee privacy rights and an employer’s right to control use of its property and monitor employee activity.

In this case, my money is on Mr. Quon.  The city did have a policy prohibiting personal use of email and pagers.  It notified employees that communications on company devices may be monitored.  However, a senior official then made an unofficial practice of looking the other way.  As long as the employee paid any overage charges, text messaging accounts were not audited.  Mr. Quon dutifully paid his bills.  After this went on for awhile, the official had a change of heart and decided to audit the text messaging accounts to see just how much personal use was occurring.  During the audit, Mr. Quon’s sexually explicit messages were uncovered.

Note to employers:  If you have a written policy, stick to it!  There is nothing a plaintiff’s employment lawyer likes to see more than a company who promotes a written policy and then flagrantly disregards it in practice.  (Juries hate hypocrites).  Had the city consistently enforced its written policy prohibiting personal use of email and pagers, Mr. Quon would not stand a chance.  He was aware that his communications could be monitored.  Nevertheless, I predict the Justices will find the unofficial action implicitly permitting personal use as long as the employee paid the overage charges restored to Mr. Quon a reasonable expectation of privacy in his texting.

The boundaries of privacy in the workplace have long been in flux.  Some areas are settled.  An employer may search an employee’s workstation.  It may not monitor bathroom stalls.  Use of electronic communication devices is the new privacy frontier in the workplace and elsewhere.  (See Lower Merion Laptop Lapse blog).  To remove uncertainty, all employers should have an explicit privacy policy, distributed in an employee handbook or separately, notifying employees in boldface large font letters that they DO NOT HAVE AN EXPECTATION OF PRIVACY IN THE WORKPLACE. The policy should state it includes the use of any company provided equipment and that employee use of the equipment may be monitored.  Employers without a policy, or who depart from a published policy as the city of Ontario did, do so at their peril.