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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.

In the June 17, 2010 ruling, the Supreme Court determined that the Ontario, California police department did not violate the Fourth Amendment rights of SWAT Sergeant Jeff Quon when the employer read his explicit text messages to his girlfriend, estranged wife and a male coworker.

In the majority opinion, the court reasoned that the California employer was within their rights to audit text messages in an attempt to determine if the city’s contract with the company providing the pagers was sufficient.

When the city provided pagers to team members, it introduced a computer policy that allowed the city to monitor all network activity including Internet use and email, “with or without notice.” The pager plan included 25,000 characters of free text messages per month. However, Sgt. Quon’s supervisor told team members they could use the pagers for personal messages, as long as the team member paid any overage fees. The supervisor implied that as long as the team member paid the additional charges, texts would remain private. Sgt. Quon did pay overage fees on his pager several times.

Eventually, the city conducted an audit to determine if the pager contract provided a sufficient number of text messages per month. During the course of the audit, the employer learned that Sgt. Quon had sent many sexually explicit messages, often while he was on duty. The employee argued that this was a violation of his Fourth Amendment rights to privacy, but the Supreme Court disagreed.

In the unanimous opinion, Justice Anthony Kennedy noted that because the search was due to a legitimate work-related purpose, not excessive in scope, it was legal. The employer’s policy gave Sgt. Quon no reasonable expectation of privacy in this situation.

Employers should note that this case has limited applications to other situations. The case does not give the employer the right to read every text message sent by every employee, or to use the text messages as a way to monitor employee performance. However, it found that the employer can enforce a written company policy that provides access to employee texts, even if enforcement has been inconsistent.  

Even Justice Kennedy noted that the court must proceed with care in infringing on an individual’s rights to privacy of electronic communications via equipment owned by the employer, or a government agency.

        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 (more…)

The controversial Accrued Sick and Safe Leave Act of 2008 went into effect late in 2008 in the District of Columbia.

Human Resources professionals are watching closely because this new act requires employers to provide mandatory paid sick leave.

Such paid sick leave may become the next hot labor topic. Employers may comment on the new regulation. After that, the D.C. Department of Employment Services or DOES will release the regulations and their accompanying (and long-awaited) FAQ guidelines.

The new act actually went into effect November 13, 2008. The DOES, however, just recently issued regulations for employers to follow.

The new law mandates that all eligible employees working in the D.C. area must be given paid sick leave for any absences that are connected to either mental or (more…)

The District of Columbia recently released rules that will end employer’s confusion regarding the controversial Accrued Sick and Safe Leave Act of 2008.

That law requires all employers to provide paid sick leave to eligible employees working in the District of Columbia for any absences related to physical or mental illness. The law also requires employers to give workers paid time off for preventative medical care or family care.

One of the more unusual aspects of the law is that it requires employers to give “safe” leave to employees who are associated with stalking, domestic violence or sexual abuse.

The Accrued Sick and Safe Leave Act of 2008 went into effect on November 13, 2008. However, the D.C. Department of Employment Services or DOES just recently issued regulations for employers to follow.

Employers can comment on the “proposed” rules. Once the (more…)