Elmont Online

Those of us who have company issued electronic devices have accepted our employers’ policies which state that we can be disciplined for the unauthorized use of your employer issued pagers, laptops or phones. Well, not so fast . . .

Last year, the Court of Appeals for the 9^th Circuit found that a public employer violated its employees’ Fourth Amendment rights to be free from unreasonable searches and seizures when the employer gained access to the transcripts of text messages sent by the employee.  This is what happened. Sergeant Jeff Quon, a member of the Ontario Police Department’s SWAT team in California, was given an employer issued pager.  The Police Department had a formal Policy reserving the right to monitor “network activity including e-mail and Internet use” and allowing for “light personal communications” but cautioning that employees “should have no expectation of privacy.” The employees were told that pager messages were considered e-mail and would fall under the City’s Policy.  They were also told that each pager was allotted 25,000 characters, after which the City was required to pay overage charges.

Quon went over the limit three to five times.  This caused his supervisors to order the transcripts of the pager messages from the wireless provider to determine if the messages were exclusively work related or for personal matters.

After receiving the transcripts, Quon’s superiors referred the matter to Internal Affairs “to determine if someone was wasting City time  . . . not doing work when they should be.”  The IA investigation ended in a finding that Quon exceeded his monthly allotment by 15,158 characters and that many of the messages were personal in nature and were often sexually explicit.

Quon and three other employees sued the City and the Police Department in California’s District Court alleging violation of the Stored Communications Act (SCA) and the Fourth Amendment.  The district court found that the wireless company did not violate the SCA.  It also absolved the City and Police Department of all liability for the search.  Quon and the other employees appealed to the Court of Appeals.

The Court of Appeals for the 9^th Circuit reversed, and found that the wireless provider violated the SCA.  The Court also found that the public employer violated its employee’s Fourth Amendment rights to be free from unreasonable searches and seizures by reading the transcripts of the text messages.  This was the first ruling of any court to uphold the privacy rights of employees using electronic devices provided by their employer.

The employer petitioned the US Supreme Court to hear the matter claiming that it had an absolute right to view personal e-mails because it warned employees that the city could not guarantee privacy.  On Monday (December 14, 2009) the Supreme Court agreed to hear the case and decide whether employees have a constitutional right to privacy when they send text messages and emails on company issued phones and pagers.  The Supreme Court’s decision should be finalized some time around June, 2010.

Most labor law attorneys and law school professors are applauding the Supreme Court’s decision which would establish new rules regarding privacy on employer-provided devices.

Yes, each employee with a company issued laptop, cell phone or pager should celebrate, but don’t break out the bubbly . . . not just yet.  First, if the employer had used some ingenuity, and had disciplined Quon simply for going over his allotment of characters which cost his employers extra money for overage charges, this case would have never made it to the NY Times.  Remember, it’s the “reading” of the text of the messages that created the invasion of privacy issue.  Also, where was Quon when he sent these 40,158 characters?  Was he at work or on break or lunch?  If he sent these private messages while working, and he was paid for the time, he could have been disciplined for falsifying his time card.  How could Quon expect to be paid for the time he spent sending these private messages?