Most savvy employers these days include an electronic communications policy in their handbook to put employees on notice that they should have an extremely limited expectation of privacy or confidentiality when using company computers, including internet and email. However, a recent decision by the United States Court of Appeals for the Ninth Circuit raises the interesting issue of an employee’s right of privacy in text messages on a device provided by the employer.

In the case of Quon versus Arch Wireless Operating Company, Inc., the Court found that an employee had a reasonable expectation of privacy in text messages sent on an employer provided pager.

The employer had a published policy on computer usage, internet and email which specifically advised that access to the internet and email system was not confidential and the system should not be used for personal or confidential communications. Employer specifically advised that internet sites were recorded and would be periodically reviewed and that users should have no expectation of privacy or confidentiality when using these resources. When the employer distributed pagers to certain employees, these employees were verbally advised that they should consider the pager messages like email and eligible for auditing. The individuals using the pagers were allotted a certain number of characters, after which they were required to pay overage charges. The employer believed that the monthly number of characters allotted was sufficient for business purposes and any overages must be due to personal usage. The Plaintiff employee paid for overages several times and recalled his supervisor advising that if he paid the overage fee the text messages would not be audited. After the passage of some time, employer tired of collecting the overages from employees. Employer requested transcripts of the text messages on the pagers for auditing purposes to determine if the messages were work related, (requiring an increase in the number of characters permitted), or if the pagers were being used for personal matters. The audit revealed messages that were not work related and sexually explicit.

Employee filed suit, alleging, among other things, that he had a reasonable expectation of privacy in the text messages. The Court found that the Plaintiff did not voluntarily permit the employer to review his text messages. The Court focused on the employer’s informal policy that text messages would not be audited if the employee paid the overages. This rendered Plaintiff’s expectation of privacy in the messages reasonable. It was significant that prior to the events that transpired in the case the employer did not audit any employee’s use of the pager for the eight months when the pagers had been in use.

The lesson to be learned is that employers must clearly limit the expectation of privacy afforded to employees in all employer provided devices.