Privacy in the Digital Workplace – Oxymoron? Maybe Not.
The Spring 2009 Hofstra Labor and Employment Law Journal includes a symposium on Emerging Technology and Employee privacy. There are two articles that are especially relevant to employers: Invasion of Privacy Liability in the Electronic Workplace: A Lawyer’s Perspective (by Christine E. Howard) and The Emergence of State Data Privacy and Security Laws Affecting Employers (by Joseph J. Lazzarotti).
Employee privacy has received increased attention. For example, in a 2008 case, Quon v. Arch Wireless Operating and Co., the 9th Circuit Court of Appeals held that a company that contracted with an employer to provide text messaging services to the employer’s employees, violated the federal Stored Communications Act (SCA) when it provided the stored text messages to the employer. Employers will also want to take notice because the Court held, in the particular factual context presented, that the employer violated its employee’s privacy rights as well as the recipients of the text messages under the Fourth Amendment and under Article I, Section 1 of the California Constitution.
These particular facts are as follows: The City of Ontario contracted with Arch Wireless for pagers that supported text messaging,. These pagers were issued to Police Department employees, including plaintiff Jeff Quon. The Police Department had a general “Computer Usage, Internet and E-mail Policy” that limited the “use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems . . .” to City business. The policy also provided that “[u]sers should have no expectation of privacy or confidentiality when using these resources” which extended to the pagers. But, the police official responsible for overseeing the City’s text-message program, had stated that the City would not read an officer’s text messages, so long as the officer paid for any charges for overages under the City’s plan. Quon did in fact pay for overages on several occassions. Subsequent to this statement and payment of Quon’s overages, the Chief of Police ordered transcripts, which were turned over by Arch, the wireless provider. Many of Quon’s messages were personal in nature, including sexually explicit. The Court held that Quon had a reasonable expectation of privacy in his text messages as the result of the lieutenant’s statements that the messages would not be audited if overages were paid.
The take-away from Quon for employers is that a clear policy that electronic communications are not private is a must. Further, to minimize the chance that this policy is not undercut by stray assurances of privacy or workplace reality (i.e., employers generally don’t have the time or interest to read employee e-mails), it should also provide that no one other than a designated person has the authority to change the terms of the policy and that all such changes must be in writing. There may be some additional recommendations in the articles referenced above and feel free to offer your own insight. Thanks.