In today’s age of increasing communications technology and Internet surfing, misuse of workplace equipment can lead to a major loss of productivity for many businesses. Statistics show that the Playboy home page is one of the most visited web sites between 9 a.m. and 5 p.m. Such adult sites, sexually explicit e-mails, and social networking can result in financial losses through workplace sexual harassment and employment discrimination claims. A 2007 survey found that two thirds of employers monitor their employees’ web site visits to prevent inappropriate surfing. Today’s technology offers employers various methods to monitor not just telephone calls, text messages, pagers, Internet usage, but also keystrokes and time spent at a keyboard. However, with various tools at their disposal, employers face a dilemma in how closely to monitor their employees to ensure that their employees are performing their jobs and not overstep the boundaries of workplace privacy.
The United States Supreme Court recently held in the case City of Ontario v. Quon, that a public employer has a right to read text messages sent and received by its employees on employer-owned pagers. In Quon, the City of Ontario distributed pagers to its police officers with texting capabilities. The City instituted a policy that employees should not have any expectations of privacy or confidentiality, which Quon acknowledged with a written statement. When Quon and other police officers exceeded their monthly quota of texts, the City audited the text messages to determine if they needed to change their plan or if the higher charges were caused by personal use. The City found that Quon had misused the pager by sending and receiving hundreds of personal texts, many of which were sexually explicit. Quon sued the City alleging a violation of his right to privacy under the Fourth Amendment of the United States Constitution.
In a very narrow ruling, the Supreme Court held that even if a public employee has an expectation of privacy, an employer’s intrusion “for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Rather than addressing the issue of privacy at the workplace, the Court based its decision on the City’s reasonableness of the search and its legitimate purpose.
The Supreme Court’s decision is a clear reminder to all employers to have a written policy regarding the expectation of privacy and confidentiality with respect to communications using company equipment and resources. Distribute the policy and have every employee acknowledge that they received it, read it, and understood it. Your policy should set forth that all employees have no expectation of privacy with respect to company owned equipment and any communications they make using employer-provided equipment, such as e-mails, instant messages, text messages, and cell phones.
Let your employees know that you are monitoring all their communications. If you don’t have a written policy, one of our experienced employment law attorneys can help you develop a policy designed for your company’s specific needs. If you suspect an employee of misusing company equipment and don’t have a policy, contact one of our experienced labor and employment law attorneys at (800) 893-9645 to discuss your possible options.
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