Thursday, June 17, 2010

Quon v. Arch Wireless: If privacy rights fall in the forest and no one chooses to rule on them…

Quon v. Arch Wireless was one the most anticipated cases before the U.S. Supreme Court for employment attorneys. We hoped that the Court would use this case to sort out the issues that arise from the intersection of employment rights, privacy, and technology. Unfortunately for employment lawyers, Quon turned out to be dud. Because the employer was a police department, the Court decided the case on narrow 4th Amendment grounds, and ignored the key employment and privacy issues for which we had held out hope.

Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.

A copy of the Quon pinion is available from the Supreme Court’s website, here.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or