In a case closely watched by employment lawyers and advocates of workplace privacy, the Supreme Court ruled last week against a police officer who claimed his privacy rights were violated when his bosses read private messages he’d written on a department-issued pager.
Jeff Quon, a SWAT team officer in California, sued after his department’s chief, investigating why Quon was the department’s most prodigious texter, ordered that his pager messages be searched, revealing numerous explicit sexual messages between Quon, his ex-wife and his mistress.
But in a unanimous ruling, the court dismissed Quon’s argument that in reading the texts his bosses had violated the constitutional ban on unreasonable searches. Instead, the court affirmed a public employer’s right to eye the texts, as long as there was a “work-related purpose” for doing it.
But while the ruling strikes a small blow against employee privacy, the court avoided making any sweeping pronouncements, saying it was important to “proceed with care” where electronic privacy is concerned.
As a result, the ruling left a fair amount of gray area behind as far as what employee communications are protected and what aren’t.
For one thing, Justice Anthony Kennedy made a point of noting in the decision that searching the pager texts “was not nearly as intrusive as a search of his personal e-mail account or pager” would have been — a meaningful distinction given that a growing number of employee privacy suits involve claims that an employer has accessed a private e-mail account.
The decision also made no mention of the rights of workers for private employers.
Bart Lazar, an employment attorney with the firm Seyfarth Shaw LLP, said the main takeaway for employers is the need to have a clear policy on e-privacy.
The decision, said Lazar, “affirmed the basic principles that we have continuously told clients: 1.) Have a policy; 2.) the policy should be understandable; 3.) the policy should be clearly communicated to the employees; and 4.) the company should train employees and supervisors on the policy.”