Electronic Data and Employee Privacy

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: New Hampshire Business Review
September 16, 2010

Melanie, a sales person at the company, complains that her supervisor, Bob, has been sending her inappropriate emails and sexually suggestive text messages.  After receiving the complaint, Sarah in human resources begins an investigation.  Sarah starts by searching Bob’s emails and texts.  Are there any concerns with Sarah obtaining this electronic information as part of her investigation?  Any privacy issues for Bob?

Businesses and their employees are accessing and creating electronic data at an ever increasing rate. Employees email, instant message, text, blog, access the internet, and participate in social networking sites every minute of every day.  They do so through a host of electronic devices some of which are employer owned.  In the midst of this, employers who desire to maintain a safe, productive, and discrimination free workplaces look to some level of monitoring of this electronic data.  Employers routinely deal with employee privacy issues while trying to manage technology and risk, including when conducting workplace investigations for employee misconduct or discrimination complaints.

Recently, the United States Supreme Court in City of Ontario, California v. Quon, No. 08-1332 (June 17, 2010), considered whether a public employer had violated an employee’s Constitutional rights when it obtained and reviewed text messages on employer-owned pagers.  In Quon, the City of Ontario, California, acquired alphanumeric pagers capable of sending and receiving text messages.  The City contracted with a company for text messaging services wherein each pager was allotted a limited number of characters each month.  Usage beyond that number resulted in a separate fee.  The City issued Jeff Quon, a police sergeant and member of the Special Weapons and Tactics Team (SWAT), and other members of SWAT pagers.

Prior to issuing pagers, the City had implemented a “Computer Usage, Internet and E-Mail Policy.”  That policy provided that the City had “the right to monitor and log all network activity including e-mail and internet use, with or without notice” and “`u`sers should have no expectation of privacy or confidentiality when using these resources.”  Although the policy did not specifically cover text messages, the City had notified employees, including Quon, at a staff meeting, and later confirmed in a memorandum, that messages sent on the pagers would be considered the same as e-mail and would fall within the policy.

Quon exceeded his monthly text message allotment within the first or second billing cycle.  The officer in charge of the City’s wireless contract reminded Quon that the messages could be audited.  Rather than conduct an audit, however, that officer suggested Quon could reimburse the City for the overage fee, which he and other officers did.  Quon continued to exceed his limit.  With so many officers exceeding the monthly limit, the City decided to look into whether the overages were for personal or work-related messages and obtained transcripts of the texts to review.

The review showed that many of the texts on Quon’s pager were not work related and some were sexually explicit.  Of the 456 texts sent and received while Quon was on duty, no more than 57 related to work.  Quon’s activity violated City rules, and he was disciplined.

Quon argued that the texts were protected from unreasonable searches and seizures under the United States Constitution.  The Supreme Court held that the City’s search was reasonable and not a violation of Quon’s rights.  Noting the “special needs” of the workplace, it determined that a search conducted for a “noninvestigatory, work-related” purpose or an investigation of “work-related misconduct” is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in the light of the circumstances giving rise to the search.”  It found the search was justified for the work-related purpose of determining whether employees were paying for work-related expenses or whether the City was paying for personal communications.  The scope of the search was also not “excessively intrusive” and, even if Quon had a reasonable expectation of privacy, he was informed the messages were subject to auditing.

The Supreme Court skirted making a broad pronouncement concerning employee privacy in electronic communication.  Given emerging technology, it noted that a “broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.”

While the Quon case applies to public employers, it provides some guidance to all employers.  In New Hampshire, the law protects employees who have a reasonable expectation of privacy. The Supreme Court advised that as to technology, “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

Employers can take measures to assure sufficient notification to employees and proper searches of electronic information in the workplace.

  • Adopt an electronic systems policy that includes all forms of electronic equipment and all information sent or received, stored or contained, on any company owned, operated, leased or otherwise provided to the employee by the company equipment/system.
  • State in the policy that the employee has no expectation of privacy or confidentiality when using such resources.
  • Notify employees the company’s electronic systems are subject to monitoring and inspection by the company at any time.
  • Implement and train employees on the policy.
  • Monitor or search the company’s electronic systems when there is a legitimate, business purpose and then only within a reasonable scope.
  • Periodically review all policies and make any necessary modifications due to changing technology.

Here, Sarah should review the company’s electronic systems policy to assure her search of Bob’s electronic information on employer owned equipment is proper.  The search, if not excessively intrusive, would appear reasonable because it is for an investigation of work-related misconduct.  If employers have any questions about electronic systems policies or whether there is a legitimate, business purpose to conduct a search, they should consult with counsel.