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Looking Through Your Employees’ Personal E-mails or Texts? Supreme Court Highlights Need For Written Policy

Posted by Eric Parzianello on September 16, 2010

Can employers delve into their employees’ personal lives by looking through their e-mails and texts? The answer could be yes, if the information is on company equipment and your written policy permits it.

In a case which was the subject of two prior blog articles below, this summer’s decision by the United States Supreme Court in the case of City of Ontario v. Quon highlights the need for employers to have written policies addressing employee use of work-issued electronic devices. In Quon, a police officer’s sexually charged text messages to his estranged wife and office girlfriend were reviewed by the officer’s police chief. Although he was only issued a reprimand for sending the personal text messages in violation of a written policy, Quon and the people he was messaging sued, claiming that the department had no right to look at the communications.

The Supreme Court held that the officer did not have a right to privacy under these circumstances since the police department had a legitimate interest in its review and the search was reasonable in scope. Importantly, the court noted that the city’s policy that allowed it to monitor and log text messages resulted in the employees having no expectation of privacy or confidentiality when using those devices. Although the decision dealt with the constitutional issues surrounding a public employer’s search of an employee’s text messages, private employers should note that the Court’s decision was based on the employee violation of an explicit policy governing the use of company-owned devices.

The importance of a written policy governing the use of employer-owned devices for electronic communications and notifying the employees of the employer’s right to monitor such use cannot be overstated. The necessity for clarity in such a policy became evident in a New Jersey case regarding employee e-mails.

In Stengart v. Loving Care Agency Inc., the New Jersey Supreme Court ruled that an employee who exchanged personal e-mail messages with her attorney on an employer-issued laptop computer had a reasonable expectation of privacy in those communications. While the employer had a policy that allowed the company to review any messages sent on its equipment, the policy also permitted personal use of e-mail. The court noted that it was “not clear” from the policy “whether the use of personal, password-protected, web-based e-mail accounts via company equipment” was covered by the policy; therefore, the policy did not destroy an expectation of privacy by the employee in her personal e-mails.

As noted in a recent Law.com article, “employers should have clearly worded policies related to the use of employer-issued electronic devices and computers. At a minimum, the policy should contain:

• specific definitions of the work devices and messages that are covered by the policy — for example, work-issued computers, BlackBerrys, and cell phones;

• a provision addressing whether an employee is permitted to use work devices for personal use; and the extent to which that use is allowed;

• a provision informing employees that the employer may monitor and log all work devices and accounts;

• a provision informing employees that the employer may access and search work devices and accounts, and that employees have no expectation of confidentiality or privacy in messages sent over those devices;

• a provision allowing for disciplinary action if the policy is violated;

• a form for employees to sign acknowledging receipt of the policy.

If there is any question about the purpose and scope of the search, the employer should consult with legal counsel prior to any action. Having clearly defined policies and procedures will define the line between personal and private use of work-issued devices and minimize the employer’s exposure to litigation.”

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