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US High Court Supports Employer Right to Monitor Employee Private Communications Over Employer-Provided Systems
June 21, 2010

On June 17, 2010, the United States Supreme Court ruled that a governmental employer did not violate an employee's constitutional right against unreasonable searches by auditing the employee's text messages.  The case City of Ontario v. Quon, involved an employee of the city police department who challenged his employer's review of his text messages as unreasonable searches in violation of the Fourth Amendment.  The employer reviewed the messages in an attempt to learn whether consistent overages on texting limits set by the employer were due to work-related or personal texting.  In the process of that review, the employer found that the employee had transmitted a number of sexually-explicit messages in violation of policy.  The employer disciplined the employee for that conduct. 

On appeal -- reversing a trial court decision for the employer -- the Ninth Circuit Court of Appeals held that even though the search was conducted for a legitimate work-related rationale, it was not reasonable in scope because there were less intrusive means for the employer to get the information it needed.  The Supreme Court disagreed.  It held that the employer need not use the least intrusive means when it has a reasonable purpose for its review.  The Supreme Court also held that the search was justified because there were reasonable grounds for suspecting that the search was necessary for a work-related purpose -- to ensure that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the employer was not paying for extensive personal communications.  

While this decision only directly applies to governmental employers, it sheds some light on how the highest court in the United States views an employer's right to review communications by its employees sent over employer-provided systems, even when the employee may have some expectation of privacy in those communications.  The decision also highlights the importance of having solid policies concerning computer use as well as the use of other devices.  In reaching its decision, the Supreme Court specifically noted that the employer's computer policy stated that "[u]sers should have no expectation of privacy or confidentiality when using" the employer's computers and the employer made it clear that this policy extended to text messaging.  The Supreme Court declined to issue a broad ruling stating that employers have the right to monitor employee's use of any electronic technology.  The Court opined that new technology would need to be evaluated separately.  An employer's best strategy is to ensure that its existing technology resources policies make it clear that employees have no reasonable expectation of privacy in, and that employers have the right to monitor, the use of such new and developing technologies in addition to now "traditional" technologies such as computers, Blackberries, iPhones, and the like. 

For more information, please contact a member of Moore & Van Allen's Employment & Labor Practice Group. 

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