Sheeva Ghassemi Published in Employment and Technology Law360
“Privacy and Employer-Issued Electronic Devices”

Sheeva Ghassemi’s article, “Privacy and Employer-Issued Electronic Devices,” was published in the June 11, 2009 issues of Employment and Technology Law360. Sheeva’s article discusses a recent case, Quon v. Arch Wireless Operating Co. Inc., where the Ninth Circuit held that employees have a reasonable expectation of privacy in the content of text messages sent via employer-issued pagers. Sheeva notes, “although the city had a formal policy regarding computer usage, which it informed its employees would also encompass the use of the pagers, it maintained an informal policy whereby the city would not audit the text messages if each employee paid any overage charges incurred on a monthly basis.”

Sheeva’s article explains that due to one employee having several months of excessive charges, the employer contacted the pager company to request the employee’s records to perform an audit to ascertain whether the overages were due to business or personal reasons. This resulted in the employee suing the employer for violation of privacy rights and the pager company for violation of the Stored Communications Act.

Sheeva further explains how the court’s decision was based on the fact that the employer maintained an informal policy, which created a reasonable expectation of privacy for each employee in the content of his/her text messages and, therefore, the search was found unreasonable. She notes that it was the conflicting formal and informal policies that were the problem; otherwise, the court could have upheld the company’s formal computer usage policy and held that no privacy rights were violated. She concludes, “It is incumbent upon employers to draft formal written policies that are clear. Equally as important, employers should avoid maintaining contradictory informal policies.”