January 21, 2011
The use of computers and other electronic communications devices in the workplace is now commonplace. As employee use of such devices has grown, so has litigation involving, on the one hand, an employee's expectation of privacy in his or her use of these devices (such as use of a workplace computer to visit Internet websites) and communications sent via these devices (such as e-mail or texting via a workplace computer or handheld device), and, on the other hand, the reasonableness of an employer's monitoring or reviewing such use and/or communications. A recent Supreme Court case, City of Ontario v. Quon, 78 U.S.L.W. 4591, 2010 WL 2400087 (U.S. June 17, 2010) (No. 08-1332), addressed some of these difficult issues, concluding that an employer's review of two months' worth of text messages sent by an employee was reasonable under the circumstances of the case.
The employer in the case was the City of Ontario, California. The City had bought a number of alphanumeric pagers able to send and receive text messages and had issued them to its police officers. The City's contract with its service provider placed a monthly limit on the number of characters each pager could send or receive and provided that usage exceeding that number would result in an additional fee. When some of the officers exceeded their monthly character limits several months in a row, the police chief sought to determine whether the existing limit was too low for the sending of work-related messages or whether the overages were attributable to personal messages also being sent. After obtaining transcripts from the service provider of some of the officers' text messages sent over a two-month period, the police chief discovered that many of the messages sent by a particular officer were not work-related and some were sexually explicit. The officer's work schedule was then consulted in order to redact from the transcript any messages sent while off duty, but the transcript still showed that few on-duty messages related to police business. The offending officer was disciplined for violating police department rules. He then brought a civil rights action against the City and the police department, alleging that his Fourth Amendment rights had been violated by the defendants' obtaining and reviewing the transcripts of his text messages. (The Fourth Amendment was implicated because the employer was a governmental unit.)
The Supreme Court first assumed, without deciding that the officer had a reasonable privacy expectation in his text message communications, that the defendants' review of the transcript constituted a Fourth Amendment search and that the principles applicable to a government employer's search of an employee's physical office "apply with at least the same force . . . in the electronic sphere." 2010 WL 2400087, at *10. The Court thought it prudent not to use the case to "establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." Id. at *9.
The Court then held that even if the officer had an expectation of privacy in his text messages, the police department's warrantless review of his pager transcripts was reasonable because it was motivated by a legitimate work-related purpose and it was not excessive in scope. There were reasonable grounds for finding the review necessary for a noninvestigatory, work-related purpose, in that the police chief had ordered the audit to determine whether the contractual character limit was sufficient to meet the City's needs. The review was also reasonably related to the objectives of the search because both the City and the police department had a legitimate interest in ensuring that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine what factors had caused the officer's overages. And the review was not excessively intrusive. Although the officer had exceeded his monthly allotment several times, the police department had requested transcripts for only a two-month period in order to obtain a large enough sample to decide the character limits' efficaciousness, and all the messages that the officer had sent while off duty were redacted.
Although the Quon case involved a public employer, the case is useful to private employers by analogy because it demonstrates that, in order to reduce liability exposure, an employer's actions with regard to employee use of workplace electronic devices should be reasonable. One of the factors often examined by the courts in assessing the reasonableness of an employer's actions is whether the employer had in place a policy outlining the permissible parameters of employee Internet use, or an Internet Acceptable Use Policy ("IAUP"). See, e.g., In re Pesant, 63 A.D.3d 1411, 881 N.Y.S.2d 227 (2009) (claimant was disqualified from receiving unemployment insurance benefits, because his employment was terminated due to misconduct; claimant continually violated his employer's reasonable Internet policy). For the most part, the promulgation and enforcement of an IAUP has been recognized as a legitimate business decision. See Pacenza v. IBM Corp., No. 04 Civ. 5831(PGG), 2009 WL 890060, at *8 (S.D.N.Y. Apr. 2, 2009) (granting summary judgment in favor of employer in employee's discrimination suit; "IBM's policies prohibited the internet use that Pacenza engaged in and that prompted his termination[.]"); Johnson v. Midcoast Aviation, No. 4:06-CV-1805(CEJ), 2008 WL 3200801 (E.D. Mo. Aug. 6, 2008) (mem. & order) (granting summary judgment to employer on issue of damages in religious discrimination claim, because the court found that the employer would have terminated the plaintiff's employment anyway when it discovered the plaintiff's violation of the employer's Internet usage policy).