Supreme Court Tackles Employees’ Privacy Rights

Third Quarter 2010Newsletters California Update Employment Law

On June 17, 2010, the U.S. Supreme Court issued a unanimous decision in City of Ontario v. Quon, ruling that an employer's review of an employee's text messages, sent via an employer-issued pager, was reasonable and did not violate the employee's privacy rights.

In Quon, the City of Ontario, California, issued pagers with texting capability to police officers on the city's SWAT team, including Quon, to help them mobilize and respond to emergencies. The city's written policies provided that the text messages could be monitored without notice. However, the police officer overseeing the city's pager expenses told Quon he had no intention of reviewing his text messages. Nevertheless, when Quon and other officers exceeded their monthly character limits for several months running, the city, without informing the officers, audited their text messages to determine whether the existing character limit was too low—i.e., whether the overages were due to personal or work-related messages. The audit revealed that Quon was sending many personal text messages on his pager, some of which were sexually explicit. Quon was disciplined as a result.

Overturning the Ninth Circuit Court of Appeals, the Supreme Court concluded that the audit of Quon's text messages was reasonable because: (1) the city had a legitimate, work-related purpose in conducting the audit; (2) the scope of the audit was not excessively intrusive because it was limited to a two-month period and Quon's off-duty messages were redacted prior to the review; and (3) Quon could not reasonably expect his messages were immune from review because the city never assured him that his messages were private, and Quon should have anticipated the city might need to audit his messages to assess the SWAT team's performance in particular emergency situations.

Although Quon is a fact-specific decision involving a public sector employer, it provides private employers some useful lessons consistent with the California Supreme Court's recent decision in Hernandez v. Hillsides, Inc., 47 Cal.4th 272 (2009) (discussed at length in our Fourth Quarter 2009 issue ). Specifically, employers should:

  • Adopt and consistently apply a clear, written policy stating that employees should not have an expectation of privacy or confidentiality when using employer-owned communication devices or communication systems;
  • Ensure any review of employees' electronic communications is justified by a strong business purpose; and
  • Keep the scope of any review as narrow and non-intrusive as possible to achieve the review's objectives.