Just how closely can you monitor employee communications?

You’ve heard about the employer who got nailed for looking at an employee’s e-mails to her lawyer — even though the messages were sent on her company-issued laptop. Now the Supreme Court is mulling a case that could determine how far companies can go in writing policies to control employees’ use of work-issued communications devices.

It’s an issue that has far-reaching repercussions for many companies — especially in the areas of harassment and protecting proprietary information.
The Supreme Court is presently hearing the case of a California police officer who sued for invasion of privacy after his X-rated text messages — sent over his work-issued pager — were read by his superiors.
A lower court ruled that the officer, along with two fellow cops whose messages were also monitored, were protected under the privacy provisions of a federal electronic communications law.
The  Supreme Court’s decision will directly affect only public employers. But the ruling could have far-reaching consequences for private employers trying to shape reasonable, legal policies for regulating company communication devices.
A brand new ballgame
Thus far, it’s been reasonably easy to set policies on workplace computers. In numerous cases, judges have held that employees have no expectation of privacy when using those devices — although in a recent case, a judge ruled an employer was out of line when it examined e-mails a former employee had exchanged with her lawyer. The rationale? The employee sent the messages over a private, password-protected e-mail account.
This case goes beyond the simple use of company computers — to the gadgets used both inside and outside the workplace. The explosion in the business use of iPhones, BlackBerries, pagers and other mobile tools opens a brand new Pandora’s Box for employers.
Here’s a quick outline of the case, City of Ontario v. Quon: The employer had a broad policy that employees had no expectation of privacy when using officially issued communication devices. The officer signed and acknowledged the policy.
Quon and his fellow officers were issued pagers with the understanding that they’d be used for official business. But Quon’s supervisor said the pagers could be used to send personal messages as well — as long as the officers picked up the tab for texts that exceeded the monthly limit.
Quon, a married man, took full advantage of the privilege. And many of his messages (which were “to say the least, sexually explicit,” in one judge’s words) went to his mistress.
When upper management discovered that some officers regularly exceeded the limit, an audit was ordered. The wireless service provider gave the employer transcripts of texts sent.
When Quon and the other cops learned their messages had been read, they sued. They lost in federal district court and then prevailed on appeal.
The appeals court judge said the employer had no right to read the texts without any evidence of wrongdoing. And the wireless provider violated the Electronic Communications Privacy Act (ECPA) when it handed over the transcripts.
The company brought the case to the Supreme Court.
One  big mistake
So where does all this leave employers?
Even without knowing how the Supreme Court will rule, the case provides companies with a clear reminder: Enforce policies consistently.
The employer had a strong, clear policy about the use of communication devices: They were to be used for work. And employees had no right to privacy.
But then the cops’ immediate supervisor bent the rules, saying that using the pagers for personal use was permissible.
Big mistake. If personal use of the pagers had been prohibited, the cops would have been in clear violation of an official rule. And the employer might have avoided multiple trips to court.
Cite: City of Ontario v. Quon