July 2010
By: Alan E. Seneczko, Esq.
For months, employers and employees alike have been anxiously awaiting the Supreme Court's decision in City of Ontario v. Quon, in which the Court was expected to address the issue of whether a public sector employee had a privacy interest in text messages sent through an electronic device provided by his employer. The Ninth Circuit previously ruled that he had. Unfortunately, like the letdown that flows from watching a movie that fails to meet the hype that precedes it, a similar disappointment follows the issuance of the Court's decision on June 17.
Although the Court overturned the Ninth Circuit's decision and found that the employer had a legitimate interest in conducting a "search" of the employee's text message, it determined that the case could be resolved without deciding whether an individual has a reasonable expectation of privacy in a text message. Its reasoning: Given the rapid changes in the dynamics of electronic communications and their place in both the workplace and society in general, the Court was reluctant to issue a broad holding defining those privacy expectations at this time when it could resolve the case on another issue. The Court thus presumed that an employee had a reasonable expectation of privacy in the text message, but that the employer's intrusion into that privacy was both justified at its inception and reasonable in scope.
It is important to recognize that Quon involved a public sector employer (City of Ontario) and its employee's rights under the Fourth Amendment - which does not apply to employers in the private sector. In other words, employees working for private employers do not have a right to be free from unreasonable searches by the company. Still, many states, like Wisconsin, have statutes that recognize or create a common law right of privacy and the Quon decision may be relied upon when interpreting those rights. It thus provides some instruction and guidance for employers to deal with the issue.
The primary consideration: Making employees aware that the company may, at its discretion, access, monitor or review information that is sent through or stored in any electronic device provided by the company - whether a pc, laptop, email system, Blackberry, cell phone, etc. If you do not have this interest defined and reserved in a policy or employee handbook, it is imperative that you do so.
