SOURCE: LeClairRyan

July 07, 2010 12:08 ET

Written Policies Emerge as Key Issue in Cyber-Privacy Cases

Supreme Court's Ruling in Quon Appeal Suggests Having Written Policy in Place and Enforcing It Is Best Way to Protect Employer's Right to Monitor, LeClairRyan Attorney Advises

RICHMOND, VA--(Marketwire - July 7, 2010) -  Despite the U.S. Supreme Court's recent finding in favor of the employer in City of Ontario v. Quon, the now famous "sexting" case serves as a wake-up call for employers in both the public and private sectors, warns Charles G. Meyer, Chair of LeClairRyan's Labor & Employment practice team. While the decision specifically addresses public employees' expected rights to privacy and whether the city's audit of its employee text messages violated the Fourth Amendment issue of employee expectations of privacy while using employer technology, the ruling has broad implications for virtually every employer in this age of emailing, texting, tweeting and Facebooking.

The Supreme Court's June 17th ruling reversed an earlier decision by the Ninth Circuit Court and unanimously held that a public employer's search of text messages sent and received by an employee on a city-owned pager was reasonable and did not violate the employee's Fourth Amendment right to privacy because the search was motivated by a legitimate work related purpose. Notwithstanding this ruling in the employer's favor, the case highlights important lessons for public and private employers seeking both to manage employee expectations of privacy in electronic communications and to preserve the ability to monitor employee use of company resources, Meyer notes. As the Court observed under the circumstances of the case, this particular search would be regarded as "reasonable and normal in the private employer context."

One of the most critical takeaways for employers in this case is the importance of having a written policy addressing privacy and employee communications in place. "Although the Supreme Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages, it hinted that the existence of a written policy would be a relevant factor in evaluating any employee's expectation of privacy," Meyer explains. "The implication is clear. In order to preserve the ability to monitor employee use of company-owned equipment while simultaneously limiting potential liability for that monitoring, employers should maintain written policies regarding employee use of electronic equipment and communications."

Additionally, employers are well-advised to review and update such policies on a regular basis to ensure they continue to cover all relevant forms of communication and equipment. Meyer points out that "a policy written just a few years ago might not be sufficient to address equipment and applications that have emerged as some of the fastest-growing communication channels recently. While there is no arguing against the potential advantages this new wave of communication processes can provide, when that communication is taking place through company-owned devices and networks, it raises a host of new concerns, including both privacy and liability."

Besides being regularly reviewed and updated to encompass any relevant new communication technology that might have emerged since the previous review, employers' written electronic communications policies should explicitly state that employees' messaging and communications on electronic devices issued by the company are subject to monitoring, and that employees have no expectation of privacy in the use of such devices, Meyer advises. Employers should require all employees to sign a document acknowledging they have read and understand the company's policy.

If the need arises to conduct a search of employee communications, the employer should be well-positioned to articulate a legitimate, work-related reason for the search. Legitimate reasons for such a search might include determining whether employer resources are being used for appropriate work purposes, ascertaining whether an employee's communications violate the employer's harassment policy and similar rationales. Meyer advises that employer searches are most defensible when they are narrow in scope and specifically designed to serve the legitimate work-related purpose for which they are being conducted. "Searches should be conducted only by employees who have been well-trained on relevant company policies, including those related to electronic communications, confidentiality, discrimination and harassment," he says.

Finally, Meyer points out that employers should not rely solely on the existence of a written policy to set employee expectations of privacy in electronic communications. "It's important that employers audit actual practices to ensure that those practices are consistent with the written policies," he emphasizes, noting that a lack of such consistency was an issue in the original ruling in favor of the employee handed down by the Ninth Circuit in Quon. "Audits should be designed to ensure that no informal practices or understandings exist that contradict the company's formal written policies."

About LeClairRyan

Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 300 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.