In a 9 – 0 vote, the Supreme Court recently reversed a decision of the 9th Circuit Court of Appeals and held that an employee does not have a reasonable expectation of privacy in text messages sent on an employer provided pager even when the employer permitted personal use as long as the employee paid the overage charges.
In an earlier blog regarding the case of City of Ontario v. Quon, I foolishly placed my money on Mr. Quon. (Hence, my aversion for Atlantic City and the stock market). Mr. Quon was disciplined after his employer found and reviewed personal sexually explicit text messages sent via his pager. Because the employer deviated from its written policy by allowing personal use of the pagers as long as the employees paid the overage charges, I sided with the 9th Circuit in concluding Mr. Quon had a reasonable basis to believe his personal texts would be kept private. Not so, sayeth the Supreme Court. If it is on the employer’s communication equipment, the employer’s interest in monitoring its use takes precedence over employee privacy. The fact that the material was sexually explicit did not diminish the employer’s right to review the texts in their entirety. Writing for the court, Justice Anthony Kennedy stated “the search had a legitimate business purpose and was not excessive in scope.” (What can be more excessive than reading the texts in their entirety?) A unanimous vote was even more surprising given the current composition of the Supreme Court.
The ruling should set off alarm bells for employees and church bells for their bosses, but the message is clear. Employees should not use company provided equipment to send anything they would not want their employer to read or hear. Period. Moreover, employees may expect to be disciplined and even terminated for personal use of company provided equipment.