Electricity has been a benefit and a curse to the legal profession. Before the invention of the fax machine, lawyers could write letters and not have to worry about the matter for a couple of days while it was being delivered. The first fax I received was 76 pages on thermal paper that didn’t cut off to page sizes and scrolled onto the floor as one page over 50 feet long. I knew at that moment that technology was going to be a mixed bag. Clients now call and leave voice messages telling me that they sent me an email or a fax (or both). I check emails while ice fishing (unless the fish are biting).
While the access provided by electricity has been a mixed blessing, there is no questions that it has greatly affected my employment law practice. When the internet was first introduced, it became immediately apparent that employees would view things at work that they would not dream of looking at from home (often for fear of reprisal by a spouse). This created the need for personnel policies related to Internet use.
Emails became a common form of discourse that mixed the concepts of informal slang, often not entirely professional or appropriate statements and what was a more permanent record that could retrieved. Again, this created the need for (revised) policies. Attachments to the emails included material that blurred the distinction between Internet and email. Revised policies were needed (again).
Facebook became a media in which private and personal lives merged. When a client told me that he was Facebook friends with subordinate employees, I briefly contemplated returning to my former career working in a paper mill. Then I remembered this client’s opportunity for disaster (now corrected) is all wonderful news for longevity in my practice area.
Throughout this process, one common theme has emerged. The key question is what privacy rights do employees have within this type of communication and what monitoring roll can/should an employer take? In Minnesota, there is a law that prohibits employers from refusing to hire a job applicant or disciplining or discharging an employee because the employee engages in the ” enjoyment of lawful consumable products” off premises during non-working hors. A boss should not take action against an employee who posts pictures on Facebook of their weekend project building a tree house out of recently emptied beer cases.
One of the trickier areas in this area was whether an employee had enforceable privacy interests in text messages sent by the employee on company phones. The United States Supreme Court recently ruled that a search of an employee’s text messages was reasonable. In the City of Ontario vs. Quon, the city issued phones to officers in the police department. When the officers exceeded their monthly limits for several months, the city sought to determine whether it had set the existing monthly limit on characters too low -resulting in officers having to pay fees for sending work related messages or whether the overages were for personal messages. The city reviewed the content and discovered that many of Quon’s messages were not work related and some were sexually explicit. Further investigation revealed that few of Quon’s on-duty messages related to police business.
Because the case involved a city (as governmental entity, the constitutional rights of employees are somewhat more involved), there were additional privacy rights considered by the court. Nevertheless, the court’s decision provides guidance for employees in both the private and public sector. The Court held that the search was reasonable even if the employee had a reasonable expectation of privacy. This case was particularly interesting because the Supreme Court is (sometimes unfairly) viewed as suspicious of technology as advanced as the ballpoint pen. The court noted their unease with this decision and advised that “the judiciary risks error by elaborating too fully of the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Court advised readers to view the decision narrowly.
With these cautions, the Court held that the search was appropriate where it was conducted: a(for a non-investigatory work related purpose or for the investigation of work related misconduct; b) was justified at its inception; and c) the measures adopted reasonably related to the objectives of the search and were not excessively intrusive in the light of the circumstances giving rise to the search.
The decision highlights that, from an employees perspective, these types of communications should not always be considered private. From an employer’s perspective, it should view the same principles applicable to searching an employees physical office. Employers who wish to review the communications of employees should apply the factors noted in this case before accessing the information. This case highlights the need for personal polices or rules regarding the employer’s right to access electronic communications provided by the employer.