Best Practices for Monitoring Employee Communications Following Supreme Court's Awaited Ruling in Ontario v. Quon

On June 17, 2010, the Supreme Court issued its decision in City of Ontario, California v. Quon, a case that garnered significant media attention. Many employers had hoped the Court would use this case to provide definitive guidance on the permissible scope of an employer’s review of employee electronic communications. Unfortunately, the Court issued a relatively narrow opinion providing only limited guidance for private-sector employers.

The case involved a police officer, Quon, for the City of Ontario, California, who was issued a pager with texting capability. The City’s policy on Internet and e-mail use reserved the City’s “right to monitor and log all network activity including e-mail and Internet use, with or without notice.” The policy warned: “Users should have no expectations of privacy or confidentiality when using these resources.”

The City’s pager usage plan limited the monthly number of messages and imposed an additional fee for any overage. After Quon’s usage exceeded the maximum for several months, the police chief investigated and obtained transcripts of Quon’s messages for a two-month period. Many of the messages turned out to be personal, including some that were sexually explicit, and Quon was disciplined as a result.

Quon sued the City, alleging that the search violated his Fourth Amendment right against unreasonable search and seizure and several federal and state laws. A federal district court determined that Quon had a reasonable expectation of privacy in the content of his text messages, but ruled in favor of the City after finding the chief had acted for a legitimate purpose. The Ninth Circuit reversed, reasoning that even though the search may have been conducted for a legitimate reason, it was not reasonable in scope because the chief had failed to use a less intrusive means.

The Supreme Court reversed the Ninth Circuit and ruled in favor of the City, but expressly decided the case on narrow grounds within the confines of a public-sector workplace. Therefore, this decision has limited applicability to the private sector. The Court noted that a public employee does not lose Fourth Amendment rights simply by virtue of being an government employee. The Court determined that the legal principles that apply to a search of a public employee’s office similarly apply to a search in the “electronic sphere.” Nevertheless, the Court concluded that the City did not violate Quon’s rights, because the search was justified at its inception, the method of the search was reasonably related to the search’s objectives, and those methods were not excessively intrusive.

The Quon decision is the latest in a line of cases addressing employee privacy rights in the workplace. As was widely reported late last year, the California Supreme Court held that an employer who, for legitimate reasons, installed a hidden surveillance camera in an office and took steps to avoid videotaping employees during normal working hours did not violate employees’ right to privacy. Hernandez v. Hillsides Inc., 47 Cal. 4th 272 (2009). Hillsides, a private, non-profit residential facility for neglected and abused children, employed two clerical workers who shared an enclosed office where they worked on computers during the day. Hillsides determined that someone was using computers late at night to look at pornographic websites, an activity in clear contravention of company policy. Although Hillsides did not suspect the two clerical employees who later sued, Hillsides installed a hidden, remote-operated camera in their office to monitor use of the computer. The two employees, upon discovering the camera, sued Hillsides for invasion of privacy and intentional and negligent infliction of emotional distress, even though Hillsides never used the camera during the day or to tape the employees. The California Supreme Court held the employees did not establish that the employer’s conduct was highly offensive and constituted an egregious violation of prevailing social norms. It emphasized that use of the camera was narrowly tailored in place, time, and scope and was based on legitimate business concerns. The employees were not at risk of being monitored or recorded during regular work hours and were never actually videotaped. The Court upheld the trial court decision dismissing the privacy claims against Hillsides.

Guidance

Although the Supreme Court stated that its decision was not meant to provide general guidance and does not apply to private-sector workplaces, the decision does nonetheless support some important practices:

(i) Employers should have a detailed policy concerning all forms of employer-provided electronic communication devices and clearly explain that employees have limited expectations of privacy in the workplace.

(ii) The employer’s policy needs to be clearly communicated to employees because, as the Supreme Court noted, that sets the employee’s reasonable expectation of privacy.

(iii) Any employer-conducted search should have a legitimate business reason and should relate only to work-related items (e.g., messages sent during working time or that are work-related).

(v) Although the Court’s decision does not require an employer to use the least intrusive means possible for its search, an employer should consider less intrusive methods in deciding on the scope of a search.

(vi) The decision left open the question of whether a supervisor’s conduct could, on an ad hoc basis, modify the employer’s written policy. Therefore, we recommend including a provision stating that the policy cannot be modified by a supervisor’s conduct, and training supervisors to not attempt to modify a written electronic communications policy.

If you need assistance in developing appropriate policies or determining the proper scope and method of a search, please contact your Seyfarth attorney or any Labor & Employment attorney on our website.