In June, the United States Supreme Court issued its opinion in City of Ontario v. Quon, siding with the City and its officials in a workplace electronic monitoring case closely followed by employers and their counsel. The Court reversed the Ninth Circuit Court of Appeals’ opinion, holding the government employer’s search of a police officer’s personal and work-related text messages on an employer-issued pager was reasonable, and therefore the officer’s Fourth Amendment rights were not violated. (See our previous blog posting.)


The City of Ontario issued pagers to city employees, including police officers, for use in their jobs. The City, like most employers, had a written electronics communications policy that expressly prohibited personal use of its computers and notified employees that they had no expectation of privacy with respect to any communications using the City’s computer systems. The City’s policy, however, did not make clear that this policy applied to its pagers or to text messaging. Its contract with its service provider included a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. 


When Quon, a police officer employed by the City of Ontario’s Police Department (OPD), and other employees exceeded their monthly character limits, OPD began an informal policy permitting employees to pay the overage charge. After several months of charges, the OPD chief sought to determine whether the existing limit in the contract with the service provider was too low to allow for necessary work-related messages or, conversely, whether the overages were for personal messages. The City requested transcripts of the text messages from the service provider and, after reviewing Quon’s text messages for a two-month period, discovered that many of Quon’s messages were not work related and some were sexually explicit. 


The matter was referred for internal investigation. The investigating officers redacted messages sent during off-duty hours but found that few of Quon’s on-duty messages were work-related. Quon was disciplined for violating OPD rules and subsequently filed suit, along with other individuals who had exchanged text messages with Quon, alleging that the City and its officials violated their Fourth Amendment rights and the Federal Stored Communications Act by obtaining and reviewing the transcript of the messages. The Supreme Court limited its review to the Fourth Amendment issue.


Lower Courts’ Decisions

The District Court determined that Quon had a reasonable expectation of privacy as an employee of a subdivision of the state of California pursuant to the Fourth Amendment. The Court found in favor of the City, however, because the audit was for the legitimate purpose of determining the efficacy of existing character limits and was therefore reasonable. The Ninth Circuit reversed, concluding that the search was not reasonable, even though it was based on a legitimate, work-related reason given that less intrusive means than the audit could have achieved the same objective. The City appealed to the Supreme Court and the high court accepted the case in December 2009. 


Supreme Court’s Decision

The Supreme Court granted victory for the government as employer but the holding is narrow. Assuming for the sake of argument that the warrantless search invaded Quon’s reasonable expectation of privacy, the Court concluded the search was justified because there were reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose. The Court also held that the scope of the search was reasonable as an efficient and  relatively non-intrusive way to determine whether the overages were the result of work-related messaging or personal use.  


Quon’s employment as a law enforcement officer was also considered in the Court’s analysis of the scope of the search. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of on-the-job communications. Likewise, the Court noted that a reasonable employer under the circumstances would not expect that such a review would intrude on intimate matters given the City and its officials’ perspective of Quon’s limited privacy expectation. That the search did reveal intimate details of Quon’s life did not make the search unreasonable.


Suggestions for Employers

Perhaps most notable for all employers in the opinion is the Court’s sentiment that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” (emphasis added)Although private employers are not subject to the same prohibition on warrantless searches as government employers, all employers should consider reviewing their electronic communications policies to ensure they meet the current communication and technology norms in their specific workplaces. Employers should also educate employees regarding these policies. 


Some states, such as Delaware and Connecticut, have statutes requiring employers to notify employees when monitoring their electronic communications. Notifying employees regarding monitoring is a good "best practice" for all employers choosing to monitor given that notification will impact employees’ “reasonable expectation” of privacy in their electronic communications. In other words, an employee who has been informed that her workplace electronic communications are being monitored should not have a reasonable expectation of privacy in those electronic communications. Again, employers should clearly communicate such policies to employees and should include language in those policies to ensure that they cannot be overridden by contrary communications from managers or supervisors.


As the Supreme Court emphasized in stating the narrowness of the holding, the law on workplace monitoring of electronic communications is a developing area of law that will continue to change as new technologies emerge and workplaces adapt to such technologies. In light of this uncertainty, employers can be best guided in implementing their electronic communications policies by ensuring that:

·        they have a legitimate business reason for monitoring the communications.  (Employers are cautioned that lawful justifications for broad-based searching of their employees’ personal email accounts will be few and far between.);

·        the types of communications being monitored are covered by the policy (e.g. work email accounts and text messages;

·        the employees are on notice that those communications will be monitored; and

·        the scope of monitoring does not exceed the business reason upon which they rely to do the monitoring.