NJ Labor And Employment Law
The New Jersey Labor and Employment Law Blog is authored by Jay S. Becker and Joseph C. DeBlasio, shareholders in the Labor and Employment Law Practice Group, with support from the associates in the Group. It is dedicated to provide news and updates regarding all labor and employment matters throughout New Jersey.
Subscribe to Our FeedAn Employer's Right to Monitor Text Messages, and Other Forms of Electronic Communications
June 29, 2010 | No Comments
Posted by Jay S. Becker
Q: Can a public employer search an employee’s text messages? Under certain circumstances and the right policy in place, the United States Supreme Court says YES.
A: On June 17, 2010, in City of Ontario v. Quon, No. 08-1332, the U.S. Supreme Court unanimously ruled that a California city’s search of a police officer’s text messages on a City owned pager was reasonable and was done for legitimate work related purposes, and did not violate the employee’s right to unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution. The City of Ontario issued a pager to SWAT member Sergeant Jeff Quon. The City had in place an electronic communications policy, which provided the City with the right to monitor usage of the City’s electronic communication devices, such as email and internet use, while at the same time advised the user that there shall not be any expectation of privacy when using the publicly owned equipment. Although the policy did not specifically mention texting and pagers per se, it was understood by all in the Department that texting on pagers was included in the policy.
The City had a contract with a wireless provider, which allowed for 25,000 texting characters to be used per month per pager. If one went over the allotted character amount, the employee was asked to pay for the overage. Sgt. Quon exceeded his character limit quite regularly, prompting the City to conduct an audit to determine whether the 25,000 character limit per pager needed to be increased. The audit however revealed that Sgt. Quon’s overuse was the result of personal and one might say, inappropriate text messaging, clearly unrelated to the job.
Sgt. Quon sued the City claiming the search of his messages was a violation of his Fourth Amendment rights. The Supreme Court ruled that the City had a legitimate business reason to conduct the audit, which was performed in a non-investigatory and non-intrusive manner. The Court ruled that Sgt. Quon had a very limited expectation of privacy based on his public employment position and his use of publicly owned equipment, and the fact that the City had a detailed policy in place addressing this precise issue, a policy that Sgt. Quon read, understood and acknowledged.
Although the case above addressed the public employment setting, the message can equally apply in the private sector. It is critical for all employers (public or private) to have a detailed policy outlining the terms and conditions of using all company owned electronic communications devices, providing the employer the right to monitor for legitimate business reasons, while at the same time, reducing an employee’s expectation of privacy while using such equipment.
