Supreme Court issues Favorable Ruling for Employers in Texting/Privacy Case
Yesterday the United States Supreme Court issued a long-anticipated decision in City of Ontario v. Quon, unanimously ruling that a search of sexually explicit personal text messages sent by a police officer using his department pager was reasonable and did not violate the individual officer’s privacy rights. At issue was the right of a government employer to monitor its workers private communications because it believed employer-owned equipment was being abused. Even if a public employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances,” Justice Anthony Kennedy wrote. Click here to read the Supreme Court’s full decision in Quon.
In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability. The City audited the use of text messages by the officers to determine whether coverage charges may have been caused by personal use of the service. During the audit, it discovered that Quon had sent several personal, sexually explicit text messages. Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution. The federal District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct. The Ninth Circuit Court of Appeals reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could be read by others to overcome his privacy rights. The Ninth Circuit’s decision, which we blogged on the World of Employment, was unanimously overturned by the Supreme Court.
What does the Supreme Court’s decision mean for employers? The Supreme Court issued a narrow ruling in a case involving a public, not private, employer. For most private employers, this case could have little or even no impact because federal privacy rights such as those that come from the U.S. Constitution’s Fourth Amendment apply only to public, and not private, employers. Justice Kennedy cautioned that even with regard to public employers, the “Judiciary risks error by elaborating too fully on the Fourth Amendment implications of technology before its role in society has become clear . . . .” Private California employers should continue to be wary: California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems. For all employers, whether or not the Fourth Amendment applies to them, it remains a “best practice” to adopt and distribute policies clearly stating that employees have no expectation of privacy in employer-owned equipment, or in communications they make using or interfacing with employer-provided equipment and systems, such as email, text messages, cell phones, social media and other avenues of technology.
Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers
Yesterday the United States Supreme Court agreed to consider whether a police officer has a reasonable expectation of privacy in text messages sent using his department-issued pager. The Ninth Circuit Court of Appeals ruled earlier this year that the officer had such a privacy right. Click here to read the opinion below in City of Ontario, California v. Quon.
In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability. The City then audited the use of text messages by the officers to determine whether overage charges may have been caused by personal use of the service. During the audit, it discovered that Quon had sent several personal, sexually explicit text messages. Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution. The District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct. The Ninth Circuit reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could by read by others to overcome his privacy rights.
What does this mean for employers? For most private employers, this case will have little or no impact. Federal privacy rights, such as those that come from the Fourth Amendment, apply only to public employers and not to private ones. Private California employers should watch out: California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems. Still, it is a good practice for all employers, public and private and in all states, to adopt and distribute policies clearly stating that employees have no expectation of privacy in communications they make using employer-provided equipment and systems, such as email, text messages, cell phones, etc.
California Supreme Court: No Privacy Violation for Employer's Placement of Video Camera in Employees' Office
The California Supreme Court has issued its decision in Hernandez v. Hillsides, Inc., finding that an employer's placement of a hidden camera in an office used by two employees did not violate the employees' right to privacy. This case has been closely watched (OK, pun intended) as it worked its way through the appellate courts. Like all workplace privacy cases in California, the case is highly fact-specific and should not be interpreted as encouraging employers to conduct clandestine surveillance of employees.
Hillsides operated a residential facility for neglected and abused children. Plaintiffs Hernandez and Lopez were employees of Hillsides who shared an enclosed office and performed clerical work during daytime business hours. Hillsides learned that late at night, after the plaintiffs had left the premises, an unknown person repeatedly used a computer in the plaintiffs' office to access and view pornographic web sites. Concerned that the culprit might be a staff member who worked with the children who resided there, Hillsides set up the hidden camera, which could be operated from a remote location at any time. Neither of the plaintiffs was suspected of being the culprit, and the employer only activated the camera after hours when the plaintiffs were gone. The plaintiffs' activities were never viewed or recorded by means of the surveillance system.
As often occurs in such cases, the employees discovered the camera in their office and sued the employer for invasion of privacy under the California constitution and the common law. The California Supreme Court found that the employer intentionally intruded into a place in which the employees had a reasonable expectation of privacy. The court observed that while privacy expectations are diminished in the workplace, they are not lacking altogether. The employer secretly installed equipment that gave it the capacity to watch and record employee activities behind closed doors in an office to which others had only limited access. The office's setting generated a legitimate expectation that the employees would not be subjected to televised spying and secret filming by their employer.
However, the court ruled in the employer's favor because it found that the invasion of the plaintiffs' privacy would not have been highly offensive to a reasonable person. The employer took a measured approach in choosing the location to place the camera by aiming it only at the desk and computer on which the unauthorized activity had occurred. The employer did not operate the camera during business hours, and the plaintiffs' activities were never actually recorded. Additionally, in light of the employer's goal of providing a wholesome environment for the abused children in its care, the employer was justified in taking measures to determine who was accessing the pornographic websites.
If nothing else, this case serves as a reminder that it is seldom clear whether an employee has a protectable expectation of privacy, or whether an employer's conduct violates that privacy interest. These case will continue to be decided on their specific facts. In general, video surveillance in the workplace should only be used in limited situations, and only after employees are put on notice of the surveillance.
