An employer’s right to monitor employees’ electronic communications in the workplace is fairly well settled, particularly when the employer provides its employees with the equipment and has express policies on computer and Internet usage. In City of Ontario v. Quon, the United States Supreme Court has finally added to the growing body of law on this subject.
In Quon, the employer was a governmental body, the City of Ontario, California, police department (OPD) and the employee, was a police officer. In 2002, the OPD distributed alphanumeric pagers to 20 of its personnel. All employees signed a “Computer Usage, Internet and E-Mail Policy,” which expressly stated that the OPD had a right to monitor and audit employee’s Internet use with or without notice. Each pager was allotted a monthly quota of incoming and outgoing characters. Police officers were told that text messages should be treated like e-mail and that they could be audited. One of the police officers, Jeff Quon, exceeded his monthly quota several times.
In an effort to evaluate the message quotas, Quon’s superiors audited his messages to determine the relative amounts of personal and work-related messages. They discovered that very few were work related, most were personal, and some were sexually explicit. As a result, Quon was reprimanded and he sued the OPD for violation of his Fourth Amendment rights. The District Court and the Circuit Court of Appeals held that the audit amounted to an unreasonable search and seizure so the City of Ontario appealed to the Supreme Court, which reversed.
In short, the Supreme Court held that although the Fourth Amendment applied to employees as it does to other citizens, there are exceptions for “noninvestigatory, work-related purpose” or for the “investigation of work-related conduct.” O’Connor v. Ortega, 480 U.S. 479. The Court wrote that the OPD’s audit and scope were reasonable with a “legitimate work related purpose.” The Court was persuaded by the fact that Quon was told his messages might be audited and that as a law officer he should have known his actions might be scrutinized.
Although narrowly tailored to the governmental workplace, the Quon decision once again reminds employees that their privacy expectations in the workplace may not be what they believe and that employers’ actions may be deemed reasonable so long as the rules are known to the employees. If you are an employer, remember to include Internet and computer usage policies in your employee handbooks. If you would like guidance, Lipton, Weinberger & Husick can help.
— Adam G. Garson, Esq.