eBusiness

Employers Must Be Able to Monitor Electronic Devices They Pay For
Mitch Danzig

Employers provide workers with devices and give them access to E-mail, the Internet, and instant messaging to make them more efficient as employees. Technology-related budgets are constantly increasing to keep up with improvements. It defies logic to say that employees should be able to send personal messages on company time and property without being subject to employer review. This is like saying that an employee can make hundreds of printouts on a company copier for free and the employer can't do anything about it. In both cases, employees are using a device for personal, not company, matters that they would otherwise pay for. Moreover, employers would lose an effective tool in assessing employee performance and work flow.

Besides, to take away a company's ability to monitor internal communications is to leave it open to fraud, theft of intellectual property, unexpected expense, and perhaps even discrimination by employees that it otherwise would be able to uncover.

The U.S. Supreme Court will address Quon v. Arch Wireless this term and should send its own clear message by reversing a decision by the Ninth Circuit Court of Appeals that essentially says written company policy is compromised if any member of management even suggests that it might not be absolute.

The Ontario, Calif., Police Department's written policy provided that pagers could be used only for business, not personal, purposes, that users shouldn't expect any privacy when using them, and that the messages were subject to auditing.

Many of the messages that Sgt. Jeff Quon sent and received were found to be personal and sexually explicit. When he learned they had been read by his supervisors, Quon sued the department for violating his Fourth Amendment rights, among other claims. The federal Court of Appeals held that the department violated his privacy rights by reviewing his messages without consent, reasoning that its policy was effectively nullified by the "operational reality" that its informal practice was not to review messages when the employee paid for overage charges. The city appealed.

The Supreme Court's resolution of Quon should clarify a public employer's authority to review employee communications on employer-provided equipment. There are several reasons why it should reverse the Ninth Circuit's decision. The first is that employees aren't entitled to privacy under these circumstances.

Employers must operate in an environment with ever increasing obligations imposed on them by federal, state, and local laws, from ensuring that the workplace is free from discrimination to preventing insider trading. Employers must simultaneously protect their trade secrets and their customers' private information. If employee privacy is expanded, as suggested in the Quon ruling, a company's ability to fulfill its legal obligations and protect itself will be cut off at the knees.

If an employee knows her communications are insulated from review, there's nothing to prevent her from sending confidential business plans to a private E-mail address with the intent of disclosing them to a third party. Employers wouldn't be able to review internal E-mails to ensure their nondiscrimination policies are being followed. If employers' rights to review employee communications are restricted, employers will be forced to react to all situations on a post hoc basis.

The Ninth Circuit reasoned that the department's informal practice nullified its written policy. While this aspect of the decision concerns the Fourth Amendment, it's not unreasonable to imagine seeing a similar argument advanced in other contexts. The acceptance of such an argument could have disastrous workplace effects.

Companies give employees guidance through written policies on how they will address certain situations. Acceptance of the Ninth Circuit's reasoning could call into question the general validity of written policies. For example, a sexual harassment plaintiff could argue that his employer's written antiharassment policy is irrelevant because his supervisor casually remarked that "HR doesn't care about harassment." Policies are written because employers don't want them to be misconstrued, including through offhand comments. If any employee's interpretation of a written policy could modify its effectiveness, there's nothing to prevent employees from conjuring up statements during litigation that call a policy into question.

The Ninth Circuit relied, in part, on the department's failure to audit an employee's messages when the employee previously exceeded the allotment. If an employer must choose between forfeiting its right to review employee communications and consistently doing so after a potential policy violation, employers will drown trying to monitor the ever increasing forms of social media and communication programs available to employees (e.g., Facebook, Twitter, instant messages) on the various types of equipment they're provided.

While Quon concerns public employers, the Supreme Court's decision could affect private employers. If the Ninth Circuit's ruling is affirmed, other courts might perceive it as a sea change and examine, more closely than they do now, whether a private employer consistently reviewed previous communications when faced with a potential breach of policy.

Employers must have the authority to review employee communications to protect themselves and their customers, to ensure their written policies are enforced, to avoid significant expenses, and to determine whether workers are doing their jobs. After all, employees are paid to work, not to LOL.

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Quon v. Arch Wireless raises the question of whether public employers must be honest with employees about their monitoring practices. The case is not about whether employers should be allowed to monitor employee communications. Employers have legitimate reasons to do so. What Quon says is that an employer must be upfront and consistent in its monitoring policies

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