Employers Should Be Honest About Their Electronic Privacy Policies

Lewis Maltby

Is it unreasonable to expect your boss to keep his word? The recent privacy case of Quon v. Arch Wireless raises the simple but important question of whether public employers must be honest with employees about their monitoring practices. Look at the case as the equivalent of the children's game of making up something untrue and then saying, "It doesn't count. I had my fingers crossed." Before long, reasonable individuals will refuse to play along.

The case is not about whether employers should be allowed to monitor employee communications. Employers have many legitimate reasons to do so. High-tech employers need to protect their trade secrets from being shared with competitors. That's understood. All employers need to be concerned about E-mail or text messages being used for sexual harassment. No argument there. Nothing in the Quon decision interferes in any way with companies conducting monitoring to head off these and other real problems. What Quon says is that an employer must be upfront and consistent in its monitoring policies. No more, no less.

In 2002, the city of Ontario, Calif., issued pagers with text messaging capability to its police officers, who were allowed to send personal text messages as well as those required for official police business. One officer, Sgt. Jeff Quon, sent more than the allowed number of text messages, incurring an extra charge from the wireless company. Although the city had a policy stating that it retained the right to monitor messages, Quon's commander told him that if he paid the extra charge, the city would not look at the messages to see whether they were business or personal. Quon promptly paid up, and he continued to do so each time he went over the limit. Nonetheless, after the commander complained to higher-ups about the overages, the department asked the carrier, Arch Wireless, for the messages, and Arch complied.

Quon sued for invasion of privacy, as any reasonable person in his situation would have.

Because Quon was a government employee, he was covered by the right to privacy found in the Fourth Amendment of the Constitution, which forbids "unreasonable" government searches. (The Constitution does not guarantee a similar right to private-sector employees, unfortunately.) The amendment provides protection when the employee has "a reasonable expectation of privacy." The legal definition of this term is exactly what you would expect: what a reasonable person would expect under the circumstances.

When his lieutenant told Quon that the city would not monitor his personal messages (if Quon paid for them), Quon believed him, as a reasonable person would do. But the city argued that Quon should not have expected his text messages to be private, no matter what his commanding officer said, because the city had informed him two years earlier of its official policy that all electronic communication was subject to monitoring.

The Court of Appeals for the Ninth Circuit recognized that the city's argument was wrong. If the city had simply issued the policy and then monitored text messages, Quon would have been on notice. But when his commanding officer told him that his messages wouldn't be monitored if he paid the overcharge, Quon believed him. The city's argument was that it is unreasonable to expect your boss to keep a promise. The court didn't buy that, and it shouldn't have. Ontario's appeal awaits Supreme Court deliberation, with a ruling expected by summer.

Quon must be upheld.

It doesn't hamstring employers or limit their ability to monitor. Public employers can read every employee E-mail and text message if they want. All they have to do is clearly explain the monitoring policy to employees and then follow it uniformly. Most employers already do this. The American Management Association, which trains business leaders in the United States and abroad, strongly recommends that employers take the time to fully explain their monitoring policy to employees. The employer isn't then locked in. It can change the monitoring policy at any time; it just has to spell out the change for its employees.

This is fair to everyone. The employer can create any policy it feels is good for the business, and the employees know the rules. As Donald Harris, president of HR Privacy Solutions, a leading consultant to major corporations, says, "Instead of putting out boilerplate policies, employers should write policies that tell employees what the company really intends to do."

It's just smart management. Being clear with workers about the company's monitoring policies improves compliance, since employees are naturally much more likely to follow policy if they know what it is. The management association's most recent survey reveals that the vast majority (82 percent) of its corporate members fully inform employees about company monitoring programs.

In asking the Supreme Court to overturn the Ninth Circuit ruling in Quon, the city of Ontario is saying that it wants employers to be able to tell employees what the rules for monitoring will be, have the workers rely upon what their employers tell them, fail to follow the policy in the normal course of business, and then let the employers go back on their word because of a piece of paper in the manual that the employer suggested it wasn't going to enforce.

Not only would such a rule be unfair to employees, it would hurt employers as well. If workers know that their employers' promises are legally meaningless, they will stop accepting them. Management will be unable to work out disagreements with employees because everyone will know management's promises mean nothing. This isn't the way most successful companies operate.

And the Supreme Court should not be in the business of endorsing a rule that's inequitable and encourages sloppy management.

By Lewis Maltby, President of the National Workrights Institute in Princeton, N.J., which fights for employee rights

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Employers Should Be Honest About Their Electronic Privacy Policies