As the workplace has evolved in the digital age, new issues involving employee privacy versus employer search rights are emerging. What rights of privacy do employees have regarding the personal e-mail or text messages they send using employer-issued electronic communication devices? What is a "reasonable" search if an employer decides to review these communications?

In City of Ontario v. Quon, the U.S. Supreme Court had the opportunity to address such issues for the first time in the employer-employee context. The case involved a member of Ontario, California's SWAT team who, along with other team members, had been issued a pager for work-related purposes. The City of Ontario reserved the right to monitor use of the device and issued a policy asserting that the employees should not expect confidentiality. One SWAT team member, Quon, exceeded his monthly text message limit several times and reimbursed the municipality for the excess. Eventually, the city audited Quon's text messages and found that many of them were personal in nature, including some sexually explicit content. After the municipality disciplined him, Quon sued, claiming a violation of his reasonable expectation of privacy under the Fourth Amendment.

The principal issues presented to the Supreme Court were (1) whether Quon had a reasonable expectation of privacy regarding the text messages transmitted on his pager and (2) if so, whether the search was reasonable.

With respect to the privacy question, the Supreme Court chose to duck the issue. Citing the newness and the evolving nature of cell phone and text message communications, the Supreme Court declined to make any broad pronouncements concerning employee privacy rights in electronic communications using employer-issued equipment. Instead, it held that—even assuming there was a right to privacy in electronic communications on employer-provided devices—the city did not violate Quon's rights because its review of his text messages was motivated by a legitimate work-related purpose and was not excessive in scope. The Supreme Court found that the city legitimately was seeking to determine whether it was providing appropriate character limits for employee pagers under its wireless contract. The Supreme Court also concluded that the search, given its objective, was reasonable and was not excessive, as it was limited to a certain number of months and was conducted efficiently and expediently. Furthermore, the Supreme Court rejected the lower court's application of a standard under which an employee's privacy rights are deemed to be violated unless it is shown that the "least intrusive" means of searching was employed.

The Quon decision involved a public employer that, as a governmental entity, was subject to the Fourth Amendment and therefore more restricted in conducting warrantless searches than a private employer would be. Nevertheless, all employers can take away certain lessons:

1. Implement and maintain a comprehensive and effective written policy that restricts employee usage of all mainstream forms of electronic communications on employer-provided equipment. The policy should limit employee use of company computers, e-mail accounts and electronic devices to only business-related purposes. The policy should also warn that the company's electronic devices and all mainstream forms of communications are subject to monitoring, and that employees should have no expectation of privacy when using such devices.

   In Quon, the Supreme Court commented that, unlike e-mails sent through an employer's own data server, text messages might not pass through a computer owned by the employer because they are typically transmitted through a cell phone provider's server. Therefore, employers should update their electronic communications policies to ensure that they cover text messages sent through pagers, as well as work-related e-mails not transmitted through the company's server.

    

2. Conduct periodic auditing of enforcement practices with respect to the electronic communications policy. In Quon, the employee argued that a management-level police official had created an expectation of privacy by telling him that his text messages would not be audited if he paid any required overage charges. In order to avoid a situation where an employee could allege that a supervisor countermanded company policy and thereby created a privacy expectation, employers should consider policy language that limits a supervisor's authority to deviate from the policy.

    

3. In conducting a search of an employee's electronic communications, proceed as if he or she has an expectation of privacy when using the employer's network or equipment. Any search should have a legitimate business reason. Examples include determining whether an employee is using work time appropriately, whether an employee's communications are violating the employer's harassment or confidentiality policies and whether an employee is breaching his or her duty of loyalty to the employer. The search should also be tailored as much as possible to avoid unnecessary intrusion into personal matters. Examples include limiting reviews to messages sent during working time or to messages that are work-related. Finally, results of a search or audit should be shared only with those employees who have a legitimate reason to know the content of the communications.