A long-awaited Supreme Court ruling has reiterated the importance of all employers to draft and enforce a comprehensive electronic communications policy governing how employees can use e-mail, the Internet, cell phones and text services.
The case (City of Ontario v. Quon) marked the first time the Supreme Court waded into the issue of employee monitoring in the wireless age. It ruled that, yes, it is reasonable for employers to search messages sent using the company’s own equipment in order to find out if an employee broke a work rule.
The court stopped short of saying when, if ever, employees can expect some degree of privacy in their e-communications at work.
The case: A California city police department disciplined an officer after discovering he’d sent hundreds of texts to his wife and girlfriend on a city-issued pager. A lower court ruled the officer should have a “reasonable expectation of privacy.” But the Supreme Court reversed, saying reviewing the pager transcripts was neither intrusive nor outside the scope of normal business.
3 lessons from the Supreme Court
1. Having a clear policy is more important than ever. The Supreme Court said, “Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”
The take-away: Update your policy if necessary. The wording should tell employees the kind of privacy they can expect, which should guide their behavior. Then make sure employees read the policy and understand it.
2. Audit your practices. Beware informal policies and practices. If you’re going to issue cell phones or texting devices for work, feel free to insist that they be used only for work.
3. If you search communication records, search narrowly. Be able to articulate a legitimate, work-related reason for reviewing transcripts, call logs or other e-chatter. Examples: to learn whether employees are wasting time or violating some other policy.
The Supreme Court made clear that a search “is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive.”
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