June 17, 2010 Supreme Court Says It Is Okay For Employers To Monitor Employee Text Messages


On June 17 the United States Supreme Court issued its long awaited opinion in the case of City of Ontario v. Quon (known below as Quon v. Arch Wireless).  Rejecting the claims of privacy advocates, it held, 9-0, that employers can, in certain circumstances, retrieve and review transcriptions of employee text messages on employer-furnished devices. 

The City of Ontario provided alphanumeric pagers to its employees to send and receive text messages for a flat fee up to a certain number of characters.  Employees paid the overage. The messages were routed not through the City, but via its internet service provider (ISP), Arch Wireless.  One police department employee, Quon, exceeded his permissible number of monthly characters.  Management asked Arch Wireless for data to determine if its employees were either not using all their allotments, or having to pay personal overage charges for department business.  The ISP provided a text record of Quon’s messages, which showed that many of the texts posted during work time were not work related, and some were sexually explicit.  Quon and others similarly situated were terminated for misuse of resources, and sued, claiming the City violated the Fourth Amendment ban on searches and seizures and the federal Stored Communications Act (SCA).

Reversing the 9th Circuit, the Supreme Court held that while the Fourth Amendment guarantees a person’s privacy, dignity and security against unreasonable government intrusion, no privacy violation had occurred.  The analytic route it took was important, and will be a template for future cases.  The first element in a privacy case is to determine whether Quon had a reasonable expectation of privacy.  The City had notified Quon at the outset that it reserved the right to monitor all text messages.  Its computer policy expressly warned that employees should have no expectation of privacy in electronic devices used at work.  The court observed that Quon’s expectation of privacy was, at best, limited.    

The second element in a privacy case is whether any right of privacy was unreasonably invaded.  Here the Court found the search was permissible, and any invasion justified.  The City’s initial screen of retrieved texts eliminated off-work messages, and the material searched was only examined in connection with legitimate City interests.  Here is the rule the court announced:

A government employer’s search of employee records and devices is justified (1) when conducted for a “non-investigatory, work-related purpose” or for “the investigation of work-related misconduct” and (2) if done in a way reasonably related to the objectives of the search, and not excessively intrusive.

Here the City had a legitimate need to investigate the use of its devices, and the search was tailored in a way to get at the data it needed without excessive intrusion into off-work activity. 

While the Court cautioned that the Quon opinion is narrow, and that in the area of emerging technologies it would proceed with caution, the rule announced above is a good guide to practical action.  The key, we think, is for employers to limit expectations of privacy, to demonstrate a specific work-related need, and to use care to narrowly tailor the search to the information necessary to meet that need.

In a related case, the Court invalidated a series of NLRB decisions that had been reached when the Board was not acting with all five members participating. 

This E-Update was authored by Rich Paul.  For more information, please contact Mr. Paul or any other Paul, Plevin attorney by calling (619) 237-5200.


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PPS&C's 2011 Annual Employment Law Update
Thursday, October 28, 2010