Last week the U.S. Supreme Court unanimously ruled, in City of Ontario v. Quon, that the search of a police officer’s government issued pager, without a warrant, did not violate the Fourth Amendment. This case arose after a police department audited the text messages a police officer was sending and receiving on his pager. The department wanted to determine whether the per month character limit was sufficient to handle work-related messages. The officer was reprimanded after the audit showed that he was sending and receiving racy text messages on his department issued pager, while on duty.
In fearing that a broad ruling “might have implications for future cases that cannot be predicted,” the Court did not issue a “broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment.” Rather, the Court’s ruling was narrow as it refused to decide whether the officer had an expectation of privacy. Rather, they assumed that there was an expectation of privacy in order to determine that the search was reasonable.
Despite the fact that Quon involved a government search on a government employee (with the resulting Constitutional issues), and the Supreme Court did not address the question of whether an employee has a reasonable expectation of privacy, employers can still take guidance from the case. Private employers should be aware that the Court noted that the search of the officer’s phone would have been “reasonable and normal in the private-employer context” because there was a legitimate reason for the search and “the search was not excessively intrusive.”
Given the rapid advances in technology and the proliferation of social media, employers should consider what extent they have the right to check on their employees’ communications. Companies should develop specific policies on employees’ use of computers, smart phones, and other devices owned by the employer, or in connection with work.
This article was written by Michael K. Hayes, Legal Clerk at Demorest Law Firm.
