May Employers Monitor Employees’ Text Messages?

The lines of privacy in the workplace are blurred, at best. There are lots of questions about the limits placed on employers when it comes to monitoring their employees’ technology use.  We do know that employers should notify employees if the company wants to reserve the right to monitor e-mails, voicemail, and internet access.  In Delaware, this notice is mandatory.  But it is not clear whether this notice can extend to web-based, personal e-mail accounts, like G-Mail or Yahoo!, when the accounts are accessed by employees during working time on a company-provided computer, accessing the internet through the company’s server.  (See my previous post, Suit Raises Tough Questions About Privacy Rights of Former Employees for a case involving these facts; and if you’re still not sure, just ask the Mayor of Detroit, Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”). 

And that is just the tip of the iceberg.

A recent decision from the Ninth Circuit Court of Appeals has added another layer of complexity. In Quon v. Arch Wireless Operating Company, the court found that the employer-defendant violated its employee’s rights by reading his text messages without his consent.  The case was brought by a police officer, whose text messages were reviewed by his boss, who had obtained them from the internet service provider.  The reason given by the officer’s supervisor was fairly innocuous–to determine whether the officer was using his city-issued pager for personal communications. 

The important take-away from this case is consent, consent, consent.  The court found that the officer had a reasonable expectation of privacy in the text messages.  Had the employee consented to the employer’s search, the whole suit would have been avoided. 

And how can you get an employee to consent, you ask?  Easy.   By having all employees read and sign a comprehensive electronic-monitoring policy at the time of hiring. 

Already doing that? Great.  Now get a Gen Y to read it.  Have him or her tell you about all of the types of technology you’ve missed.  Does your policy even cover text messages? Now’s the time to check.