All “A–Twitter” Over Workplace Privacy

July 2009Newsletters California Update - Third Quarter 2009

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Workplace privacy issues are arising with greater frequency as more employees use employer-issued email devices and social networking sites such as Facebook and Twitter. Messages sent by employees from employer-owned network devices can expose the company and other employees to liability, spam, and inappropriate material, or may distract employees from work. Employers may also be obligated to preserve or archive these types of electronic communications in the event of litigation. As new technologies and electronic services emerge, employers should review their policies on electronic communications in the workplace.

Last year, we reported on a Ninth Circuit case in which the court determined that a text-message provider violated federal law by disclosing a police officer’s text-messages on a city-issued pager to the city’s police department without the police officer’s permission. The case, Quon v. Arch Wireless Operating Co. Inc., concerned an officer in the City of Ontario Police Department who was issued a two-way pager by the City. Although the City’s policy stated that employees would have no expectation of privacy in electronic communications made with City property, the City also had an informal policy allowing personal use. After the City monitored and requested personal text messages of the officer from the wireless company, the officer sued for violation of his right to privacy. The court found that there was a reasonable expectation of privacy in the content of the messages due to the informal policy that was in use by the employer. The Ninth Circuit recently denied a request for rehearing of this ruling.

With the rise of social networking for business and personal use, this case serves as a good reminder of the need for clear and consistently enforced computer, internet, and electronic device usage policies. Employers should communicate with employees regarding appropriate use of company owned equipment and networks, and explain why such policies are necessary.