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Jun 17, 2010

Privacy in the workplace is one of those issues that seems to be constantly changing in our hyper-digital age, and it just changed a little more, thanks to a ruling Thursday from the U.S. Supreme Court.

“In its first ruling on the rights of employees who send messages on the job, the Supreme Court rejected a broad right of privacy for workers … and said supervisors may read through an employee’s text messages if they suspected that work rules were being violated,” according to a story in the Los Angeles Times .

The justices ruled 9-0 that the police chief of Ontario, California had the right to read transcripts of messages that an officer in his command had sent from his police department-issued pager. Yes, the police chief’s reading of the messages constituted a “search,” the high court said, but it was also reasonable and did not violate the officer’s 4th Amendment rights.

In other words, as The Wall Street Journal’s Law Blog puts it , “the court unanimously held that it was constitutional to search a police officer’s text messages to a woman with whom he was having an affair. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment privacy rights because it was motivated by legitimate work-related purposes ? the City of Ontario was trying to determine whether it needed to alter its wireless contract, which imposed fees after city employees exceeded character limits on text messages.”

Usually, the 4th Amendment comes into play in criminal cases, but the justices have said previously that it also protects public employees from unreasonable searches at work. “But the case of City of Ontario vs. Quon was the first to involve privacy claims arising from messages sent on a pager or computer provided by the employer,” the LA Times pointed out

How does this impact HR?

Well, Sgt. Quon believed he was following an informal policy at the police department when he sent personal text messages from his government-issued device. Yes, he knew the text pager was the property of the police department and that the city reserved the right to check messages sent on it. However he also said that his direct supervisor had made a point of telling him that he could use the text pager for personal messages ad long as he paid the extra cost out of his own funds.

This is the key issue for managers –it’s about private communications made on a company (or in this case, city) issued device. Many organizations allow workers to use the company computer, or Blackberry, or cell phone, for their work AND personal use. And, it’s fair to say that the back and forth between work use and private use of these devices is what makes a lot of employees feel they have a right to privacy when they are using them for personal stuff.

Yes, that may be what employees’ think, but the Supreme Court disagreed with the expectation of privacy in this case and said the balance here was clearly tilted in favor of the employer.

“Quon likely had only a limited privacy expectation,” Justice Anthony Kennedy said. “That the search did reveal intimate details of Quon’s life does not make it unreasonable.” He said employers, including public agencies, may conduct searches of their employees for a “work-related purpose” or to investigate “work-related misconduct.”

Justice Kennedy cautioned that this was a very “narrow” decision and that it did not resolve all the disputes that can arise in an era when most employees spent much of their day using computers and cell phones.

“The case is interesting in that it is unanimous and reflects a clear trend towards a growing acceptance that employers have just as much of a right to conduct searches in the digital arena as in the physical arena , i.e. purses, lockers and desks,” according to David Barron, an attorney with the Labor and Employment practice group of Epstein Becker Green Wickliff & Hall in Houston.

“Although the decision interpreting the Constitution is not directly applicable to private employers, the logic will no doubt be argued in cases challenging workplace searches under state invasion of privacy laws. Clearly, there is a growing recognition that information stored on a company phone, pager or computer is not private and can be inspected by employers.”

And, Barron added another issue for HR people to keep in mind.

“This case is a poster child for the growing problem of employees bringing inappropriate material into the workplace via cell phones, pagers and other “smart” devices,” he said. “Employees regularly bring material into the workplace on these devices which they would never even think of displaying on their wall or on their desk. Employers will increasingly be tasked with policing this type of conduct to avoid sexual harassment and other claims.”

What should you do? 

This just goes back to what I told newspaper reporters and editors when training them how to use office computers more than 20 years ago: don’t ever write something that you would be embarrassed having someone else see, because it’s likely that it will be seen – by the very last person you would ever want to see it.

Officer Quon’s problem was that he was embarrassed when his superiors confronted him about explicit messages he sent to his girlfriend on his city-owned device. Who wouldn’t be?

That’s why every good HR leader should counsel the rank and file to always take care with what they send out or look at on that company-issued computer or Blackberry device because as Officer Quon found out, that embarrassing and inappropriate text message you thought would slip by is likely to land in the hands of your boss, or someone worse, whether you think it is private or not.