On June 17, 2010, the United States Supreme Court issued its much-anticipated decision in City of Ontario v. Quon
, holding that a police department did not violate the Fourth Amendment when it searched an employee’s text messages for a legitimate work-related purpose. The Court decided the case on narrow grounds, refusing to reach the issue of whether the employee had a reasonable expectation of privacy in electronic communications sent on an employer-owned device. Even though this decision does not apply directly to private-sector employers, it does touch on several key issues that suggest the following useful guidance:
· Establish comprehensive policies regarding employees’ use of employer-issued electronic devices. Policies should make clear that the employee has no right of privacy in communications received or sent on employer-provided devices — whether the communication is work-related or personal – and the employer has the right to audit the devices’ content at any time.
· Communicate the company’s policy clearly and in writing, consider having employees acknowledge their receipt and understanding of the policy, and update the policy as appropriate to reflect changing technology.
· Ensure that company policies are not undermined by ad hoc comments by supervisors. To reduce the exposure to claims of detrimental reliance on supervisory statements, consider including a provision that the policy cannot be modified, unless done so in writing by a designated management representative.
· Be prepared to articulate a legitimate, work-related reason for any searches of equipment in which an employee may claim an expectation of privacy.
Following these tips will help to reduce risk and manage employees’ expectations in this evolving area of law.