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Best Practices for Monitoring Employee Communications

Although the constitutional concerns will not apply directly to private employers and the Court’s ruling was more narrow than anticipated, public and private employers alike may want to consider the following issues addressed by the Court regarding monitoring employees’ electronic communications:

• What is the employee’s expectation of privacy?
• Is the search reasonable?

This Arvak Insurance Group Legislative Brief outlines the Court’s decision in Ontario v. Quon and provides information on best practices in monitoring employee communications. Please read below for more information.

Facts of Ontario v. Quon
The City of Ontario, California, purchased and distributed pagers with texting capability to Quon and other officers in its police department. Before acquiring the pagers, the City had announced a “Computer Usage, Internet and E-Mail Policy” that applied to all employees. Among other provisions, it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.”

After the policy was issued, Quon signed a statement acknowledging that he had read and understood it. Although the computer policy did not specifically cover text messages, recipients of the pagers were informed that text messages would be treated the same as e-mails: that they fall under the City’s policy as public information and would be eligible for auditing.

Quon and others exceeded their monthly text message character limits within the first few billing cycles. They were reminded that text messages were considered e-mail and could be audited. As an alternative to auditing the messages, the department permitted them to pay the overage fees incurred by the City.
After several months, the department wanted to determine whether their existing character limit was too low and officers were paying for work-related messages, or if the overages were for personal messages.  The department ordered transcripts of Quon’s text messages for two months and determined that very few of his on-duty messages were related to police business. Quon was disciplined for violating Ontario Police Department rules.

Quon filed suit, claiming that the City and the police department had violated his Fourth Amendment rights by conducting an unreasonable search and seizure of his text messages. The District Court found that Quon had a reasonable expectation of privacy, but that the department had a legitimate reason in conducting the search. The Ninth Circuit reversed, holding that the search was not reasonable in scope because it could have been accomplished with less intrusive means. The Supreme Court ruled in favor of the City, finding that the search was reasonable and therefore, Quon’s constitutional rights were not violated.

What is the Expectation of Privacy?
The Court first addressed whether Quon had an expectation of privacy related to the text messages. The record established that the Ontario Police Department made it clear that the messages were not considered private, that users should have no expectation of privacy or confidentiality and that the computer policy extended to text messages. However, the parties disagreed over whether the option to pay for overages, rather than submit to an audit of messages, gave Quon a reasonable expectation that his messages would remain private.

Many who followed the case expected the Court to issue a ruling that would be informative for employers regarding an employee’s expectation of privacy related to electronic communications. Unfortunately, the Court declined to do so, out of concern that its ruling would have too significant of an impact in a developing area. Instead, it simply assumed for the sake of argument that Quon did have a reasonable expectation for privacy and conducted its analysis based on that assumption.

The Court did enumerate certain factors that could influence whether employees have an expectation of privacy in the workplace:

• Who has authority to change a Computer Policy and how changes are announced;
• Whether there are legitimate reasons to monitor messages (performance evaluations, litigation concerning the lawfulness of police actions and perhaps compliance with state open records laws);
• The affordability of alternative forms of personal communications;
• Whether the communications are “essential means or necessary instruments for self-expression and self-identification”; and
• Monitoring for appropriate use.

Was the Search Reasonable?
In determining whether the search of Quon’s text messages was reasonable, the Court set out criteria for justifying the search. The Court stated that, where there is a work-related purpose, or in the case of an investigation of work-related misconduct, a government employer’s warrantless search is reasonable if:

• it is “justified at its inception;”
• the measures adopted are reasonably related to the objectives of the search; and
• those measures are not excessively intrusive in light of the circumstances giving rise to the search.

The Court found that the City had a legitimate work-related rationale to determine whether employees had sufficient capacity for necessary work-related messages or if the City was paying for extensive personal communications. The Court determined that the protocol used was efficient, expedient and “not excessively intrusive” because it is not only the “least intrusive” search that is reasonable under the Fourth Amendment. Even assuming there were ways the City could have performed the search that would have been less intrusive, it does not necessarily mean that the search conducted was unreasonable.

Employer Best Practices
The Court’s decision in Quon is not binding on private employers, because it centers on the Fourth Amendment, which would not apply to a private employer. However, the decision of the Supreme Court could have an impact on future court decisions involving private employers. Even though the employer in this case is a government entity, the Court suggested that its analysis in Quon would have been similar in a case involving a private employer. Specifically, the Court stated its conclusion that the search would be “regarded as reasonable and normal in the private-employer context.”

Employers can take the following steps to help ensure that their monitoring of employee communications is reasonable:

• Have a legitimate work-related purpose for monitoring employee communications.
• Establish a clear and reasonable policy for employees regarding electronic communications and the potential for monitoring.
• Update any existing policy to include emerging media and forms of communication including text messages, “tweeting,” blogging and using other forms of social media like Facebook®, LinkedIn® and MySpace®.
• Emphasize to employees that the communications are owned by the company and that the employee should have no expectation of privacy related to those communications.
• Ask employees to read and sign the employer’s policy regarding electronic communications.

Note that some states have laws that could affect the rights of workers in private companies when messages are monitored. For example, some states may prohibit or limit the employer’s right to monitor messages, or require employers to notify workers when monitoring their electronic communications.