Workers’ E-Privacy at Issue

By Mark Jr.

Feb. 3, 2010

A Supreme Court case involving a police officer’s text messages may provide guidance on the limits corporate HR departments can impose on electronic communication. When employees walk into an office, factory or other business operation, one part of the U.S. Constitution generally does not apply to them—protection from unreasonable search and seizure.


The Fourth Amendment prohibits government intrusion. An employer, however, can review the contents of a purse or a desk. This spring, a Supreme Court ruling may help set a standard for how much electronic privacy workers can expect. The case that the court will review involves Jeff Quon, a police sergeant in Ontario, California. In 2002, Quon exceeded the 25,000-character limit for text messaging on a two-way pager issued by the department, which had a policy allowing supervisors to monitor e-mail messages and Internet usage. It was silent on texting.

When the chief of police investigated Quon’s text overage, he obtained transcripts of Quon’s messages from the city’s wireless provider and found that many of Quon’s communications were sexual in nature.

In a suit against the city, Quon and three colleagues argued that an informal policy allowed them to use their pagers for personal matters as long as they paid the overage fees.

A district court ruled that Quon could not expect to maintain the privacy of the messages on his department pager. The San Francisco-based 9th U.S. Circuit Court of Appeals overturned the decision, holding that the department’s review of the message content was “unreasonable in scope.”

For the first time in more than two decades, the Supreme Court will rule on a significant workplace privacy issue, says Kent Richland, a partner at Greines, Martin, Stein & Richland in Los Angeles.

“It may be the first time the Supreme Court makes the law crystal clear in this area,” says Richland, who will represent the Ontario Police Department before the high court.

The circumstances of the case may limit its application to the private sector. Fourth Amendment rights are more relevant when the employer is the government. The Supreme Court would have to issue a broad decision for it to directly affect corporate practices.

Supreme Court Chief Justice John G. Roberts “has made it quite clear that the court is going to adhere to the tradition of ruling on the narrowest grounds possible,” says Zan Blue, a partner at Constangy, Brooks & Smith in Nashville, Tennessee. “If they do that, they’re not going to touch on the issues affecting the private sector.”

For instance, a legal question more relevant to companies involves the extent to which employees have a right to privacy when accessing personal e-mail accounts from a work computer, Blue says.

“There are traces left on the hard drive,” Blue says.

Nonetheless, the case may still provide guidance to corporate HR departments on the limits they can impose on e-mail, texting and Internet use, according to Michael McAuliffe Miller, a partner at Eckert Seamans Cherin & Mellott in Harrisburg, Pennsylvania.

“You’re getting to the point where you have to review your technology policy as often as you change your phone provider,” Miller says.

Workforce Management, January 2010, p. 3Subscribe Now!

Schedule, engage, and pay your staff in one system with