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        Employers may need to update company policies on use of the internet, cell phones, pagers and other electronic devices based on a recent case in the federal Ninth Circuit Court of Appeals. Although this case was tried in California, it involves federal law and affects employers nationwide.  

 

        In City of Ontario [California] v. Quon, the employer had a clear policy in place that devices issued by the employer, including computers and cell phones, were to be used for business communication only. The policy also stated that email and similar communications were not confidential. However, that policy did not specifically mention pagers or text messages.

 

        Sgt. Jeff Quon, a member of the Ontario SWAT team, was issued a pager with texting capabilities. He used the pager regularly to send sexually graphic texts to his wife, girlfriend and a male co-worker, who responded in kind. Apparently, a number of these messages were sent when Sgt. Quon was supposed to be working.

 

        Many employers would assume that this was clearly a violation of the employer’s policies, and that Sgt. Quon had no reasonable expectation of privacy when sending and receiving text messages on the employer’s pager – but they would be wrong. A lower court ruled that even though the employer owned the pager, they violated Quon’s Fourth Amendment right to privacy in reading the texts. The same court found that the company supplying the pager should not have provided the Ontario Police Department with transcripts of the text messages, unless Sgt. Quon and the other senders agreed.

 

        The Ninth Circuit Court of Appeals ruled that since the employer’s computer and Internet policy did not specifically mention pagers, the employee may have had a reasonable expectation of privacy in using them. Lesson #1 for employers: Be sure that the Internet policy specifically mentions every device issued to employees, and states that text messages, as well as emails, are not confidential. The wisest policy is to prohibit the personal use of electronic devices and to state specifically that sending sexually explicit messages using company property is grounds for termination.

 

        The problem was compounded by the fact that Sgt. Quon’s immediate supervisor, Lt. Steve Duke, failed to enforce the employer’s policy on personal use of the pagers. Instead, Lt. Duke implemented an informal policy allowing employees to send and receive personal texts on the pagers, as long as the employee paid any overage charges for excessive texts.

 

        According to testimony, Lt. Duke specifically told employees that their texts would not be monitored, as long as they paid any overage charges. In this case, the contract for the pagers specified that overage charges applied after 25,000 characters of text. Lesson #2 for employers: Ensure that every supervisor enforces the company policy every time. Informal arrangements can override written company policy.

 

        The federal court ruled that Duke’s informal policy of allowing employees to use the pagers for personal use invalidated the formal, written policy. The court also found that when Jeff Quon paid the additional fees every three or four months, that converted the electronic device from business use to part business, part personal use. It also conferred the reasonable expectation of privacy regarding the use of the pager. Lesson #3 for employers: Realize that employees who pay a portion of the cost of an electronic device may have a reasonable expectation of privacy. When in doubt, do not allow the employee to pay any portion of the cost of a company device.

 

        Stay tuned – this case has been referred to the U.S. Supreme Court and may be updated soon.

 

 

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1. Posted by: Labor Law Center Blog » Blog Archive » Supreme Court Sides with Employer in Sexting Case

   [...] The Supreme Court unanimously ruled that an employer has the right to audit personal text messages sent on a company pager. The ruling overturned a lower court’s opinion reported here earlier. [...]