In 2002, the City of Ontario, California issued pagers capable of sending and receiving text messages to members of its SWAT team. Prior to issuing the pagers, the city announced a “Computer Usage, Internet and E-Mail Policy” wherein the city reserved its right to monitor employees’ activity on city issued devices and warned employees that they “[s]hould have no expectation of privacy or confidentiality when using these resources.” The employees who received the pagers were told in a staff meeting that the policy also applied to the pagers. Over several months, the employee at issue exceeded the texting limit on the pager. His supervisors decided to audit his usage of the pager to determine whether the texting plan was sufficient to cover the employee’s work-related messages or if the overages were for personal messages. After obtaining and reviewing the transcripts of the text messages from the supplier—Arch Wireless (now USA Mobility), the city determined that the employee had violated its rules by pursuing personal matters while on duty. For example, the investigation revealed that of the 456 messages sent or received by the employee in August of 2002 during work hours, only 57 were work related. The employee sued, claiming that the city violated his Fourth Amendment Rights and the Stored Communications Act.
Assuming that the employee had a reasonable expectation of privacy in the text messages, the Supreme Court explained that the employer’s search was justified because “[t]here were ‘reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose. . .” and was appropriately tailored so as not to be overly intrusive.
Interestingly, the Supreme Court did not address whether the employee had a “reasonable expectation of privacy” when he sent and received messages using the employer’s device. However, the Court did explain that whether an employee has a “reasonable expectation of privacy” must be determined on a “case by case basis,” with particular emphasis on the employer’s “policies concerning communications. . .especially to the extent that such policies are clearly communicated [to all employees].”
Therefore, going forward, public and private employers who wish to review the communications of employees on company issued devices must:
• Have a clear, comprehensive and well distributed communications policy retaining the right to review all employee communications sent and received by company devices; and
• If a review of communications is to be conducted, be certain it is narrowly tailored so that it is not overly intrusive.
Of course, if you are uncertain, call your labor and employment counsel. More to come on the impact of this decision. Stay tuned.
Have a great weekend.