Recent Court Decisions May Affect Your Workplace Internet/Phone Policies

01/08/10

1) Why Proper Enforcement is an Essential Part of Any Electronic Communications Policy In an ideal world, your employees would use the Internet, e-mail, company-supplied cell phones and other electronic equipment for legitimate business only. No online shopping while on the job; no browsing nonwork-related websites for hours at a time; no e-mailing coworkers the latest joke or company gossip, and no texting friends and family on a company cell phone or pager. But we know better. For all the conveniences electronic equipment provides in the modern workplace, it also opens the door to abuse, which is why most employers feel entitled to monitor electronic equipment for inappropriate or excessive personal use. But how far can you take this? It starts with a rock-solid electronic communications policy that clearly states your position on employee monitoring, followed by your managers and supervisors properly reinforcing this policy.

With the U.S. Supreme Court agreeing to hear arguments this spring in a previous case involving personal texting and employee privacy (City of Ontario v. Quon), it’s critical that employers get this right.

Policy vs. Privacy Issue Goes to Court

In the earlier 2002 case, a police officer with the Ontario, California, SWAT unit sued his employer for reading the text messages he sent from an employer-provided pager. Although the Ontario Police Department had a general electronic communications policy that prohibited personal use of its equipment and placed a 25,000-character limit on text messages, the policy was compromised by a supervisor who told officers they could use their cell phones as they saw fit – as long as they paid out of pocket for any monthly overages.

When the one officer repeatedly exceeded the limit, however, the concerned employer reviewed his messages and discovered hundreds of personal messages, including sexually explicit ones. Sgt. Jeff Quon and three other officers sued for improper prying of their electronic exchanges.

The U.S. 9th Circuit Court of Appeals ruled in favor of the officers, faulting the text-messaging service for turning over records without the officers’ consent and stating that employees using text-messaging service should have a “reasonable expectation of privacy.”

Now the right to privacy issue will be considered by the Supreme Court, which could lead to new guidelines in the workplace, depending on the high court’s ruling.

Protect Your Right to Monitor

Regardless of how the details of this particular case play out, most legal experts continue to recommend the following: Be certain you have a clear electronic communications policy in place, and be certain you enforce it consistently. If every supervisor in the Ontario Police Department had stood beside its written policy (without any “verbal” exceptions), there may not have been grounds for legal action. But because of the ambiguity, the officers questioned their employer’s actions and claimed invasion of privacy.

Bottom line: As an employer, unless the high court rules otherwise, you have the right to protect your business by monitoring how employees are using your electronic equipment.

Your employee handbook should include a well-drafted electronic communications policy that informs employees that there will be no expectation of privacy for personal business conducted on company equipment – and that your company may review e-mails, voice-mails, web searches and other activity for any legitimate business purpose. The policy should also advise employees that use or misuse of company equipment violates company policy and is subject to disciplinary action. That way, your company is shielded from liability for reasonably reviewing employee communications.

And if the earlier court case taught employers a valuable lesson, it’s this: Provide each employee a copy of the policy and ask him or her to sign an acknowledgment that he or she has read the policy, understands the policy and agrees to comply with the policy. Then, to avoid any confusion among employees, be sure you follow the policy exactly as it’s written, without exception.