Employee Text Messages On Employers Equipment-A Protected Right Of Privacy?
In another case that addresses work place privacy, the United States Supreme Court has granted review of a California case whereby the employer was found liable for reading text messages on an employer-provided two-way pager. Apparently, and with good reason, the employer had a general computer usage policy applicable to all employees that basically stated that the use of such equipment was limited to company business, and that users should have no expectation of privacy or confidentiality when using email or the Internet. Furthermore, the policy was very specific that the using the equipment for personal use was a “significant violation” of the stated policy.
The problem with text messaging, be it a pager or cell phone, are the charges. This particular employer had begun to notice that the amount of charges were increasing each month. After several months the supervisor started to become frustrated with the overage charges for the plaintiff and other employees and decided to review transcripts of the text messages to determine if they were business or personal. The transcripts revealed personal messages sent by the plaintiff to his wife and co-workers, some of which were sexually explicit in nature. The supervisor discussed the matter with the plaintiff and he, and the recipients of the messages, brought suit alleging violation of their privacy rights under the Fourth Amendment and Article 1, Section 1, of the California Constitution.
The initial superior court decision was in favor of the employer because the jury felt (weighing the difference between the employee’s expectation of privacy and the reasonableness of the search) that the supervisor’s actions were based on trying to determine the basis for the overage charges. Upon review, the Ninth Court Circuit of Appeals reversed the decision because, in their opinion, although the search was intended for a valid reason, the scope of the search as “too broad.” The Court further stated that there was a “less intrusive means” of finding the desired information, such as simply “asking the plaintiff to redact the personal content of any text messages” so that the company could still obtain the desired information.
The U.S. Supreme Court will now make the decision on this one. In the interim, put out a memo (whether you have a computer policy in place or not) that specifically “Text messages on company issued phones, or other such electronic devices, are not private and that the company reserves the right to conduct searches at any time.”
I will keep you posted.