On June 17, 2010, the U.S. Supreme Court ruled that a municipal employer's review of a police officer's text messages on an employer-owned pager was reasonable and did not violate the Fourth Amendment. The Court, in City of Ontario v. Quon, No. 08-1332, found that the review of the messages was undertaken for a valid business purpose and that it was reasonable in scope, with the employer reviewing only messages sent during work hours.

Though the Court did not directly address whether an employee has an expectation of privacy in electronic messages sent on a work device, it emphasized that a clear computer/Internet use policy would be a factor a court might consider when analyzing an employee's Fourth Amendment expectation of privacy. The Court's decision reinforces a critical point: Employers should have a technology-usage policy that covers all employer-issued technology.

In Quon, a police officer claimed that his employer had violated his Fourth Amendment privacy rights when it reviewed the contents of his text messages sent over a work-issued pager. The police department issued the pagers to officers for business purposes, but they were permitted for personal use. The city paid for the text messaging plan. Officers who exceeded the allotted messaging quota were to pay overage charges. The employer had a policy informing employees that they had no expectation of privacy in their use of the Internet or e-mail, but it did not cover the work-issued pagers at the heart of the case.

After officers exceeded quotas for several months in a row, the department audited the contents of officers' texts for two months to determine whether it should upgrade the plan so officers would not be charged for work-related messages. It reviewed only those sent and received during business hours. Most of Officer Quon's messages were personal and some were sexually explicit. He was ultimately disciplined for misuse of the employer-issued pager.

If you have questions about how the Supreme Court's ruling may affect your organization or need assistance with technology-usage policies, or if you have any other labor- and employment-related questions, please contact any member of Ballard Spahr's Labor and Employment Group. 


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