Can Employers Review Electronic Messages?

The increased use of text messaging and e-mail by employees has risen dramatically, with no end in sight. In the workplace, text messages and e-mails may be sent by employees using employer-issued computers, BlackBerrys, and cell phones. But what happens when an employee uses these employer-issued devices for personal messages? Does an employer have any right to access and read those messages? When does an employer cross over the line between controlling the use of employer-issued electronic devices and the privacy rights of its employees?

Several recent court decisions have highlighted the fundamental need for employers to have clearly worded policies addressing employee use of work-issued electronic devices. For example, in the U.S. Supreme Court case City of Ontario v. Quon, the city of Ontario, Calif., police department found itself in litigation when it reviewed personal text messages sent to and from a city-issued pager. The police department distributed pagers to its officers so they could quickly respond to emergencies. The city's contract with its service provider set a monthly limit on the number of characters sent or received -- if employees went over this limit, they were charged a fee.

One of the officers went significantly over the limit, and the police department elected to examine whether the overage was due to work-related text messages or personal text messages. When the police department obtained a transcript of the officer's messages, it discovered that many of them were sexually explicit, and were sent while the officer was on duty, the opinion said. Because this conduct violated the police department's policies, the officer was disciplined, and later initiated a lawsuit against the department.

The Supreme Court held that the officer did not have a right to privacy in this situation. The police department had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, and that the city was not paying for excessive personal communications. Furthermore, the search was reasonable in scope, and not overly intrusive.

Finally, and importantly, the court noted that the city had a policy in place that allowed the city to monitor and log all network activity (including text messages), and that employees should have no expectation of privacy or confidentiality when using those resources. Although this decision involved a public employer, the ramifications and lessons learned extend to private employers.

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Source: law.com
By: Daniel J. McGravey and Amy C. Lachowicz