By Kevin R. Martin
Are employee's text messages made during work considered private communications? It doesn't look like it. In its June 17, 2010 decision in City of Ontario, California, et. al. v. Quon et al., 560 ___ (2010)(slip opinion) the United States Supreme Court has now explicitly acknowledged an employer's right to obtain and review transcripts of an employee's text messages sent during work hours as reasonable, as long as the employer can articulate non-investigatory, work-related purpose for the review or investigation for work-related misconduct and that the search is not excessively intrusive in light of that justification. This applies, the Supreme Court concludes, in both the government private employer context.
Quon involved a City of Ontario (the City) police sergeant (Jeff Quon) who was issued a pager by the City to its police department (OPD). Under the City's's contract with the wireless server provider, each pager was allotted a limited number of characters sent or received each month. Excess usage by OPD members in any given month would result in an additional fee to the police department. At the time he received the pager, Quon was informed that OPD would treat text messages like email messages which were subject to audit.
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. In reviewing Quon's usage amounts, the officer responsible for the City's contract with the wireless provider suggested that Quon reimburse the department for the overage fee rather than have his text messages audited, and thereafter Quon started reimbursing OPD for excess usage.
----------------------------------------------------------------------------------------------