One of the hot topics in employment law in recent years is privacy of employees’ communications. The Supreme Court weighed in on June 17. Although the City of Ontario v. Quon case will not directly affect most private employers, it is likely to influence how the law develops.
The Quon Case
The Ontario, California, police department issued text pagers to its SWAT officers. Ontario has a computer and e-mail policy allowing the city to monitor and log e-mail and Internet use of city computers, which also applied to the pagers.
One of those officers, Jeff Quon, began using the pager to communicate with his wife, a girlfriend, and another officer. Quon soon began exceeding his monthly use limit. The supervisor in charge of the pager program notified him of the overuse, and accepted payment from Quon for excess use charges. He also told Quon that he didn’t plan to audit the messages to see if the pager was being used for private messages.
After a few months, however, the police chief objected to repeated overuse by Quon and another officer and ordered the supervisor to get transcripts of two months’ messages to find out if the city needed to increase the limit. When it turned out that most of Quon’s messages were not work-related, and some were sexually explicit, Quon was disciplined.
Quon sued the city for civil rights violations based on the Fourth Amendment’s search clause, violation of a federal wiretap law, and under state law. By the time the case reached the Supreme Court, it had boiled down to whether the city’s review of the transcripts was a legal search.
Although the law is not yet settled on the standards for reviewing searches of government employees by their bosses, the court decided that reviewing the transcripts was reasonable under any standard. The reason for this was that the city was not necessarily trying to investigate what the officers were texting, only to find out if the city needed to increase its contract. The court also decided that reading the transcripts was the best way to find out if the officers were running up messages on the job or if they were using the pagers the wrong way. The court also approved limiting the review to two months out of the five or six that Quon had gone over, and noted that only messages sent while Quon was on duty were reviewed. Most significantly, the court highlighted that Quon had been notified from the beginning that the city had an inspection policy, so he should have known that it was possible he could be audited.
Lessons from the Case
Although Quon technically only applies to government employees, it has implications for private employers and employees. The big lesson is that the court endorsed computer use policies. Although there is a federal law protecting privacy of electronic communications, it allows monitoring by consent. The court implied that an employee who is notified of a policy allowing review of use of computers, e-mail, pagers, cell phones, and so forth, will be considered to have agreed to searches by the employer.
There are other good reasons for an employer to have a computer use policy. First, it can be coordinated with the company’s trade secret protection policy. Second, it can be used to serve as a reminder that harassment by e-mail is just as bad as other harassment. Third, because federal labor law allows employers to prohibit the use of e-mail for union solicitations, the policy can be used to set bounds.
Under state law in Oregon and Washington, an employer probably would have no real difficulty establishing a computer use policy. There appear to be no state laws against it, and the general rule in Oregon is that the employer can set the terms; an employee who doesn’t like it is free to quit. That said, notice of the policy has to be given the employees, and it can’t be ignored or abused once in place. Obviously, discrimination in use of the policy and use of the policy to retaliate against an employee for asserting other rights are not allowed.
In preparing a policy, an employer should decide how much leeway it wants to give its employees with regard to private communications while on company time or using company equipment. The policy also should make clear what is or is not going to be subject to monitoring. As a result, it is probably a good idea to have a lawyer review any proposed policy.