Stephen D. Coppolo, a member of the firm’s Employment Counseling and Litigation Practice Group, reports the following:
Last week, the United States Supreme Court granted certiorari to review a decision of the U.S. Court of Appeals for the Ninth Circuit in Quon v. City of Ontario. The Ninth Circuit ruled that the Ontario, California Police Department had violated the officer???s ???reasonable expectation of privacy??? held in text messages sent or received on a department issued pager.
Most of the initial coverage has focused on the headline grabbing question of whether an employer can snoop around its employee???s texts. The fact that the text messages at issue turned out to be sexually explicit also generated media coverage. Yet the Supreme Court???s Agreement to review the case could lead to a reevaluation of the constitutional framework for privacy rights of public and private employees in the workplace.
The leading Supreme Court case in this area is O’Connor v. Ortega (1987), in which a the Court was fractured in a 4-1-4 decision. O???Connor held that public employees could have a reasonable expectation of privacy in parts of a public workplace, for instance in their desk drawers or file cabinets. Those areas could only be subjected to ???reasonable??? intrusions, which were somehow related to the workings or efficiency of the employer (i.e. not to start a criminal investigation of the employee). The Court held that an even an investigation into compliance with workplace rules, as opposed to a criminal investigation, was permissible.
Since O???Connor, private employees privacy rights in the workplace have been less curtailed than the rights of public employees. Since a private employee???s boss is not the government, the Fourth Amendment doesn???t protect against employer searches. Government agents (such a police) need a warrant to search non-public areas of the workplace, unless of course the employer invites the police onto the premises, which he (or she) can do as the boss.
Returning to the here-and-now, the 9th Circuit???s reasoning in the Quon case seems questionable. Essentially the case came down to whether the police officer had a reasonable expectation of privacy when a mid-level supervisor contradicted the department???s official written policy that electronic communications sent using government equipment were not private.
In reviewing Quon, the Supreme Court may opine whether the employee was reasonable in accepting the mid-level supervisor???s message that conflicted with the written policy. The Court may also address whether today???s workplace, with questions about access to e-mails and text messages, and not simply desk drawers, may alter the ???reasonable expectation of privacy??? analysis. Most broadly, the Supreme Court could view the Quon case as its chance to leave behind the fractured O???Connor opinion and broadly rewrite Fourth Amendment law in the context of the workplace for both public and private employers. If this is the outcome, all employers should be prepared to review their written policies and unwritten approach to employee???s privacy.
