Consider this typical scenario: an employer makes available to its employees computer and other communications devices to enable its employees to perform their roles for the employer. The company adopts a broad computer use policy, which sets forth restrictions on the use of the employer’s equipment for non-company business, including a right by the company to review communications that pass through the company’s computer network. Are there (or should there be) any exceptions to the employer’s right to review the communications made through mobile communications devices? Or stated another way, when does an employee have a reasonable expectation of privacy with respect to such communications? In the past month there were two notable case developments wrestling with these very issues.
Stengart v. Loving Care Agency
In Stengart v. Loving Care Agency, A-16, Sept. Term 2009 (N.J. Mar. 30, 2010), the New Jersey Supreme Court addressed the issue of whether an employee that used a company-issued laptop computer to access an e-mail account maintained with a third party e-mail service (a Yahoo e-mail account) had a reasonable expectation of privacy with respect to communications she had with her attorney. This court answered that question in the affirmative. The plaintiff, Ms. Stengart, anticipated filing a claim against her employer, the Loving Care Agency, prior to her resignation from the company and engaged a lawyer to review potential claims that she might bring against her employer. She filed an employment discrimination claim shortly after her departure and her employer hired a forensics expert to record all files contained on the laptop she had been using. Among the files recovered were hard disk copies of numerous messages between Ms. Stengart and her legal counsel, which the company’s counsel used in preparing its defense of the company and who divulged access to the e-mails only after routine discovery requests in the case.
In evaluating the contrary positions of employee and employer, the New Jersey Supreme Court engaged in a thorough analysis of the developing case law of employee privacy with respect to workplace communications, including, in passing, considerations under the Fourth Amendment to the U.S. Constitution, which addresses the individual right to be free from unreasonable governmental searches. The opinion is worth reading for this discussion alone. What seemed most relevant to the court, perhaps because it was looking for a narrow ground upon which to decide the case, were two facts: (i) the communications at issue were subject to the attorney-client privilege, which could not be considered under these facts (particularly with attorney-client privilege notices posted in each e-mail) to have been waived, and (ii) the employer’s policy did not directly address use of third party e-mail accounts in any way. The court seemed to suggest that but for the attorney-client privilege issue an employee might not have a reasonable expectation of privacy in a non-work-related personal e-mail account merely because an employer’s computer was used to access the e-mail account over the Internet.
City of Ontario v Quon
On April 19, 2010, the U.S. Supreme Court heard oral arguments in the City of Ontario v Quon(08-1332), a case in which some of the salient facts resemble those in the Stengart case. In Quon, a SWAT team sergeant in the city of Ontario, California used a text pager issued by the police force to send numerous personal messages, including many that were of a sexual nature. As in Stengart, the city, as the employer had a broad electronic communication policy prohibiting usage of city-issued communications devices for personal use. However, the policy was not clear about whether pagers were covered and when an official announced that they were the official also noted that so long as any personal usage was paid for by the individual officer that such uses would not be subject to review for whether they were personal uses, it not being clear whether the city was more concerned with issue of cost as opposed to personal pager usage. So, during a subsequent audit of the phone messages of sergeant Quon it was revealed that his usage was in violation of the city’s policy both for the personal use and because of the sexual nature of his messages. Quon and several of the message recipients subsequently sued the city for a violation of their rights.
Just as in Stengart, the principal issue was whether the individual officer and those with whom he communicated using the pager had a reasonable expectation of privacy in the messages sent through the pager. Because the employer is a city government, the issue of Fourth Amendment coverage was invoked. Although the trial court found for the city, the U.S. Court of Appeals for the Ninth Circuit, found for Quon and the other plaintiffs on the grounds that the city’s policy had in effect been countermanded or modified by the contrary statements made by the police official who first announced that pager use would now be within the scope of the city’s communications policy.
It is almost always difficult to discern case outcomes from the tenor of oral arguments in the Supreme Court. The Justices appear to enjoy the opportunity to engage in as much devil’s advocate type questioning as you will see in any court. However, to read the transcript of the oral arguments, it is fair to note that counsel for Quon and the other plaintiffs had a greater challenge keeping their arguments and responses consistent throughout the questioning.
Both Stengart and Quon provide good examples of how the law frequently has to race to keep up with technology. It is likely that the Supreme Court’s eventual decision in Quon will have implications beyond the government employment context and will be one that will be instructive to private employers as well. However, regardless of how the Court decides that case, the situations presented by both these cases should cause employers and employees alike to pause and exercise even greater care with respect to workplace communications and how they should interact in that arena. An employer should reexamine its policies to ensure they are sufficiently broad top cover the types of communications used by its employees and that these policies are not unintentionally undermined by those speaking out of school. Employees should also be cautious about their expectations of privacy in the face of such broad business communications policies and exercise an extra degree of common sense in such matters.
Copy of N.J. Supreme Court Opinion in Stengart v. Loving Care Agency: Stengart v. Loving Care Agency
Link to Transcript of Oral Argument in City of Ontario v. Quon: http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1332.pdf