Two recent decisions, one from the U.S. Supreme Court and another from the New Jersey Supreme Court, have addressed the extent and limits of an employer's right to review an employee's electronic messaging.
In June, the U.S. Supreme Court decided that a public employer (the City of Ontario, Calif., police department) did not violate the Fourth Amendment privacy rights of an employee, police sergeant Jeff Quon, when it audited text messages he sent and received on a department-issued paging device. City of Ontario, California, et al. v. Quon, et al. The Court's decision was narrowly tailored and applies only in the government employment context, in which employees may have constitutionally-based privacy rights. The Court specifically declined to issue a "broad holding concerning employees' privacy expectations vis-à-vis employer provided technological equipment." Nonetheless, employers and employees in both public and private employment settings may try to apply some of the Court's commentary to other contexts.
In Quon, the police department had a written policy notifying employees they should have no privacy expectation in their e-mails sent on employer devices, and had told employees both in writing and orally that this policy applied to text messaging on employer devices as well. When employees' texting went over monthly usage limits, the department had an informal practice of not reviewing messages to determine if they were work-related if the employee paid for the overage charges. Because two employees' usage often was above the monthly limit, the department conducted an audit of a two-month period to determine if it needed to expand its usage limits or if the overages related to nonwork use. During this audit, it discovered that Quon's usage was overwhelmingly for personal reasons and included sexually explicit messages. Quon was disciplined and he sued, claiming that his constitutional right to privacy under the Fourth Amendment was violated by the "search" of his text messages.
Noting that "many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency," the Court stated that, "it is uncertain how workplace norms, and the law's treatment of them, will evolve." The Court assumed for purposes of argument that Quon had a reasonable expectation of privacy in text messages sent on his employer-provided pager device, and that the review of those text messages constituted a search within the meaning of the Fourth Amendment. It assumed further that the principles applicable to a public employer's search of an employee's office also apply to employer searches within the electronic communications sphere. The Court held that when a search is conducted for a non-investigatory, work-related purpose or for the investigation of work-related misconduct, a public employer's search is reasonable if it is "justified at its inception" and if the measures used in the search are "reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search."
The "search" at issue in Quon was found to be reasonable because its purposes were (a) to determine whether the messaging limit was sufficient, (b) to determine whether employees were being forced to pay out of their own pockets for work-related messaging, and (c) to ensure the police department was not paying for excessive personal messaging. The search also was limited enough not to be excessively intrusive because the employer did not look at the content of after-work-hours messages (apparently assuming those to be personal without review), and only looked at two months of messages. The fact that the review revealed details of Quon's personal life did not make the review unreasonable. The Court relied in part on Quon's status as a law enforcement officer to find that he should have expected scrutiny of his on-the-job communications, and also held that the method the employer chose to use to review the messages did not need to be the "least intrusive" method. Although they would not state it explicitly, it seems clear that all nine justices would have found the search in Quon reasonable in a private employment context as well.
Two months prior, the Supreme Court of New Jersey had issued its decision in Stengart v. Loving Care Agency, Inc. In Stengart, the employee sent e-mail messages to her attorney over a work-issued laptop computer, although she used her own personal web-based and password-protected e-mail account. The court found that the employee did not waive the attorney-client privilege under those circumstances, in part because of the wording of the employer's policy:
[T]he policy does not address the use of personal, web-based e-mail accounts accessed through company equipment. It does not address personal accounts at all. Nor does it warn employees that the contents of e-mails sent via personal accounts can be forensically retrieved and read by the company. Indeed, in acknowledging that occasional personal use of e-mail is permitted, the policy created doubt about whether those e-mails are company or private property.
In Stengart, the New Jersey Supreme Court made it clear that even if the employee had been using her employer's e-mail account, once it was understood that the message was a communication between a client and an attorney, a privacy expectation arose because of the privileged nature of the communication.
What do these cases tell us? Despite careful drafting of electronic media policies, employers are still likely to face lawsuits over electronic monitoring or employer review of employees' electronic messaging. Some of the take-away messages are:
- Draft your policies using broad language regarding the types of messages, systems, and hardware that may be subject to review.
- Ensure that policies clearly provide that they cannot be modified by oral statements or company practice, but only in writing by the right persons with authority to do so.
- Apply your policies judiciously, and be respectful of employees' privacy in doing so. The court in Stengart obviously was concerned because the communication at issue was one the employee would have assumed was privileged and private, even though she happened to open it and review it on her work computer. The Supreme Court in Quon was impressed by the very tailored nature and purpose of the employer's review of employee messaging.
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