Privacy law becomes more uncertain with each technological innovation-and each judicial decision. Employers beware. Although the recent U.S. Supreme Court decision in City of Ontario v. Quon addressed government employers, the decision has far-reaching practical implications for private sector employers.

In Quon, the police department reviewed officer Quon’s text messages-explicit messages he sent over a city-issued pager during work hours. Quon argued that the city’s actions violated his Fourth Amendment right to be free from “unreasonable searches.” The Court did not address whether Quon had an expectation of privacy, but it assumed that he did. And it held that the city’s search was reasonable. The Court said the limits were minimal, so long as the employer’s search of an employee’s desk or text messages was for a “work-related purpose.” The mind races to conjure potential work-related purposes.

After questioning the extent of employee privacy rights, the Quon Court pronounced: “[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” In Quon, the usage policy stated that messages may be audited, but the established practice was not to audit the messages so long as employees paid overage charges. Quon unsuccessfully argued that his superior’s oral assurances overrode the contradictory written policy.

Quon may have broad implications. As an initial matter, Quon may affect the private sector. Although the Fourth Amendment only restricts government action, courts’ treatment of Fourth Amendment issues may well influence employers’ dealings with workers in private sector offices and factories. Further, in California, the state constitution expressly protects citizens from an invasion of privacy by anyone-not just the government.

As Article I, section 1 of the California Constitution states, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” While an invasive search claim under the Federal Constitution requires state action, such is not the case under the California Constitution. That is why all employers should update their employee handbooks in light of the Quon decision.

Moreover, the rule of Quon is probably not limited to text messages. Employees’ comments on Twitter, Facebook and all social media may be fair game. In essence, all communications-on whichever platform-may be fair game, if made using company equipment.

The moral of the story: companies should draft and implement clear, consistent and watertight usage policies-and regularly enforce their rights under such policies, without exception. The anxiety of both employer and employee may be soothed in knowing just where they stand.

If an employer supplies or subsidizes employees’ computers or communications devices, company policy should clearly state that:

1) Any messages employees send on that equipment are subject to auditing by management;

2) The examination of conversation transcripts may be reviewed if there are grounds to suggest misuse; and

3) Management need not use the least intrusive method of review.

Further, employers would be wise before scrutinizing transcripts to disregard messages sent when the worker was off duty.

The updated usage policy will not only put employees on notice, but will protect employers from employee communications. For instance, Levitra where Employee A sexually harasses Employee B via a company computer, should the employer have known about it? If so, then the company is potentially liable for Employee A’s misconduct. Or consider a less extreme example: Employee B complains that Employee A is harassing him. The employer should have a policy in place so that it can immediately investigate all of Employee A’s communications on company systems.

For employees, the awareness that communications may not be private should always inform the content of those communications, i.e. avoid sending steamy messages on company devices. For employers, consistently enforcing a firm usage policy will shield against costly litigation, and mitigate damages should a claim arise.

Author Bio: Written by Eli M. Kantor & Zachary M. Cantor, Attorneys at Law, in private practice in Beverly Hills, California. They represent employers and employees in all aspects of labor, employment and immigration law. Contact Eli at (310) 274-8216 or visit www.beverlyhillsemploymentlaw.com and www.beverlyhillsimmigrationlaw.com.

Category: Legal
Keywords: employment law, privacy law