By D&K’s Labor & Employment Team
The Wisconsin and United States Supreme Courts have made it clear that when public sector employees check into work, they do not leave their privacy rights at the door. Searches and seizures of an employee’s private property and affects are subject to Fourth Amendment restraints. Whether an employee has a reasonable expectation of privacy has to be determined on a case by case basis taking into consideration the “operational realities” of the workplace. A typical way to address the expectation of privacy is to develop policies that instruct the employees of any limitations on their privacy. However, particularly in dealing with electronic technologies, sometimes the written policies are not clearly applicable. In those cases, the specific conduct of the employer and the scope and rationale for the search all become the focus of the ultimate determination of whether a particular search or seizure of an employee’s property is reasonable.
The U.S. Supreme Court recently issued a widely anticipated opinion analyzing an employee’s expectation of privacy in private communications through publicly-owned pagers. City of Ontario, California v. Quon provides an example of the issues that courts will consider in determining whether the search of an employee’s use of publicly-owned electronic devices is constitutionally permissible.
In Ontario, the city issued pagers to police officers to assist the officers in responding to emergency situations; the pagers were primarily used for text-messaging. The city had a written policy on technology usage, applicable to all city employees, addressing Internet and email usage, but not specifically addressing pagers. The policy made clear that the employees had “no expectation of privacy or confidentiality” when using the Internet or email accounts. When the Lieutenant in charge of the pager program issued the pagers however, he orally told the employees that the technology usage policy extended to text messages on the pagers.
The city’s contract with its provider put a monthly cap on the number of characters sent or received by each pager and charged the city additional fees if an employee exceeded the monthly allotment for their pager. Quon, a police sergeant, exceeded the allotted characters over several billing cycles. The lieutenant informed the employees that he would not review the content of the messages sent as long as they paid the overages. Accordingly, Quon simply reimbursed the city for the extra charges.
After incurring several more months of overage charges for the pagers, the chief decided to look into the matter. The chief asked the lieutenant to determine whether the current plan was inadequate, resulting in charges to employees for work-related messages, or whether the employees were using work time for personal matters. After obtaining the records from the provider, the lieutenant learned of “sexually explicit” messages; the records were forwarded to internal affairs. Internal affairs removed all of the messages sent outside of work time; however, Quon had sent the majority of the non-work related messages during his scheduled shifts. Quon subsequently filed suit against the city alleging a violation of his Fourth Amendment rights.
In reversing the 9th Circuit Court of Appeals, the Supreme Court held that the search did not violate Quon’s Fourth Amendment rights. In its opinion, the Supreme Court reiterated that the Fourth Amendment applies in the context of government employment, and although a public employee does not have the same protections as a private employee, a public employee does not waive his or her rights by virtue of working for the government. The court assumed, for purposes of the decision, that Quon had an expectation of privacy in the messages. It also assumed that the review of the records was a search under the Fourth Amendment, and the search of electronic communications was akin to a search of an employee’s office. In light of these assumptions, the court determined that the review of the records was “justified at its inception,” as the chief had a reasonable belief that “the search was necessary for a non-investigatory work-related purpose.” The court also found that the scope was reasonable and not overly intrusive, as the search was limited to certain billing cycles and only those messages sent during work time. In short, the court determined that even though Quon may or may not have had a reasonable expectation of privacy, the search was reasonable in that it was conducted for a legitimate work-related purpose and it was reasonable in scope. The court noted that the determination of whether the search is reasonable has to be made on a case by case basis.
Despite assuming an expectation of privacy for purposes of its opinion, the court nonetheless examined Quon’s reasonable expectations of privacy. The court held that it was not reasonable for Quon to believe his messages were entirely confidential. Quon worked in law enforcement, thus implicating possible “legal scrutiny,” and the purpose of the pager was to allow quicker police response time. Also, Quon had no express guarantee of privacy, and a typical employee would likely recognize that management has an interest in ensuring employee productivity. It was irrelevant that the police chief could have used other methods that may have been less intrusive as the chosen method was reasonable.
Employers can draw several important points from the Ontario decision. First, both public and private employers should have an established and up-to-date policy on technology usage. This policy should clarify that employees have no expectation of privacy or confidentiality in work computers, email accounts or work-issued technological devices. Also, it should expressly reserve to the employer the right to review and monitor the content of the communications made on publicly-owned devices. While many employers may have technology policies already in place, it is important that the employer update the policy to include new technologies. For instance, an old policy on technology usage may not cover text messaging or an employee’s use of social networking websites.
This case also highlights the importance of consistency between the policy and the execution of the policy. When the lieutenant told the employees he would not review the content of the messages, he complicated the expectation of privacy issue considerably. In fact, the Appeals Court held that the search was unreasonable in part because the lieutenant said the content of the text messages would not be searched. While the Supreme Court avoided this point by finding that the search was reasonable under all the circumstances, a direct declaration that the employer will not review the content of communications created on publicly-owned equipment while at work could serve to undermine the effectiveness of the written policy and could even lead to a different conclusion under a different set of circumstances.
This case drives home the fact that employers must remain cognizant of the law on searches in the employment context. For instance, the employer must have reasonable grounds to perform the search, and the search must not be excessive in scope. In that regard, the employer must be mindful of the method it chooses for the search, as well as the circumstances surrounding the decision to perform the search. The search must relate to a work purpose. The employer must also assess the employee’s reasonable expectation of privacy in light of all circumstances including the written policies and the conduct and representations made by the employer in administering the contract.
As is often the case with Supreme Court decisions, some guidance is given, but more questions are raised. Determining whether to search electronic communications of public sector employees or determining the parameters of a permissible search are issues that are best addressed by thorough analysis with legal counsel.
If you have any questions or would like more information, please contact your Davis & Kuelthau attorney or the Labor & Employment Chair, James M. Kalny, at 920.431.2223 firstname.lastname@example.org.