As the use of electronic systems to communicate become more common, employers must more frequently deal with how to appropriately monitor and ensure compliance with their electronic communications policies in the workplace.
Employees can have expectations of privacy in the workplace. For example, if an employer provides the employee employer-owned equipment, such as a safe, file cabinet or other area, the purpose of which is to keep the employee's private papers, these areas can treated as private. In certain cases, this has been extended to areas given over to an employee's exclusive use, even if the employee does not preclude entry into the space at all times and this analysis extends to decisions regarding electronic communications.
However, access by other employees can alter this result.
In the case of public employees, the expectation of privacy is enforced under the Fourth Amendment.
While this in certain cases requires the public employer to obtain a warrant before a search is conducted, in other cases it does not, as long as the search is for noninvestigatory, work-related purposes, or the investigation is not a criminal investigation, but rather one for work-related misconduct. However, the expectation of privacy for both public and non-public employees can be defeated by a policy that announces that the employer can inspect the property, or disclose information, including sensitive forms of information such as personnel files.
The U.S. Supreme Court recently heard a case involving workplace privacy that presented the Court with the opportunity to address some of these issues. While the ultimate ruling did not address all of the issues it could have, it still provides some guidance for employers when they monitor employee's electronic communications. The Quon case arose from the monitoring of employee communications on police department-provided pagers. One of the police officers was told that use of the pagers would not be monitored if he paid for any overages in use on a monthly basis.
The police department ultimately did review some of the pager messages exchanged between two police officers, and two other people, and these people sued the department. The Trial Court, as well as the Ninth Circuit, found that the plaintiffs had a reasonable expectation of privacy in their text messages, and this case was the first case to explicitly recognize a right of privacy in text messages.
The defendants appealed to the Supreme Court, arguing that the search of the text messages was proper. Ultimately, the Supreme Court found that the search was proper, under a Fourth Amendment analysis, which is applicable to government employers. In reaching this conclusion, the Supreme Court expressly limited the application of its ruling, and noted for purposes of this case it was assuming that a right of privacy existed. The Supreme Court found that under the Fourth Amendment the search was proper on two grounds: the department had reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose; and that the search was not excessively intrusive. These findings supported a ruling that the search was proper.
Since the Fourth Amendment does not apply to private employers, and the Supreme Court assumed, but did not decide, that there was a right of privacy in the text messages, the case does not have broad application, but two points are worth noting generally.
First, the reliance by the Supreme Court on an analysis that there was reasonable grounds for the search demonstrates that employers are in safer waters if they limit searches of employee communications to situations where they have grounds to suspect some form of misconduct.
Second, limiting the search in certain ways to the purpose of the investigation also seems to be a good practice based upon this decision.
In addition to these issues, employers should be wary of reviewing privileged communications, unless certain conditions are met. As electronic communications become more and more key to business, expect these issues to continue to take on more importance in the workplace.
Serwin is a partner in the San Diego office of Foley & Lardner LLP where he focuses his law practice on e-commerce and technology issues affecting today's companies.