Is There an Expectation of Privacy When Employees E-mail and Text at Work?

HR Policies & Procedures
by Stephen Bruce, PhD, PHR

As the year comes to a close, employers should be taking a close look at their technology policies. Two cases help clarify the “expectation of privacy” issue, says attorney Stephen R. Woods.

Woods is a shareholder in the Greenville, South Carolina office of law firm Ogletree Deakins, Nash, Smoak & Stewart, PC. His remarks came at BLR’s National Employment Law Update, held recently in Las Vegas.

City of Ontario v. Quon

The U.S. Supreme Court held that a police department’s search of an officer’s text messages was reasonable and did not violate the officer’s Fourth Amendment rights. The Court decided the opinion on narrow grounds, however, side-stepping the issue of whether the officer had a reasonable expectation of privacy.

The Facts of the Case

  • City of Ontario, CA had an e-mail and Internet policy that allowed for employer monitoring and review
  • The manager told employees that text messages were treated the same as e-mail and Internet usage, and were covered by the policy
  • The manager also said he would not audit any text messages over the allotted amount, as long as employees paid for the overages
  • Quon’s text messages went over the allotted amount and Quon paid the overage charges
  • Quon’s text messages were read to determine whether the City’s character limit was too low

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The Court’s Holding

  • The court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages
  • In other words, Court avoided the “reasonable expectation of privacy” issue altogether
  • The Court determined that search was reasonable, that is, it was motivated by a legitimate work-related purpose and was not excessive in scope and that there was no violation of Quon’s Fourth Amendment rights.

Stengart v. Loving Care Agency

In the second case, says Woods, the New Jersey Supreme Court held that Marina Stengart, Executive Director of Nursing at Loving Care, Inc. had a reasonable expectation of privacy in emails that she sent to her attorney from her personal Yahoo account on a company-issued laptop.

The Facts

  • Stengart emailed her attorney via her personal, password-protected, web-based Yahoo email account during business hours and using an employer issued computer
  • Stengart resigned and filed suit for hostile work environment
  • Stengart’s emails were uncovered while employer imaged her laptop’s hard drive to preserve evidence for discovery
  • When emails were produced, Stengart moved for sanctions and to disqualify the employer’s attorneys for ethical violations

Loving Care’s electronic communications policy stated that e-mail and Internet use were not to be considered private—”[t]he company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice.” 

However, the policy also stated that “occasional personal use [of e-mail] is permitted.”  The policy specifically prohibited numerous uses of the e-mail system, such as job searching and forwarding chain mail.  However, the policy was silent about communicating with attorneys.  Additionally, the policy made no reference to communicating via personal, password-protected e-mail accounts (e.g., gmail, yahoo, etc.) 


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The Court’s Holding

The court ruled that Stengart had a reasonable expectation of privacy in e-mails sent between her and her attorney, via her personal Yahoo account, and that the company’s lawyers violated the Rules of Professional Conduct by failing to either promptly give notice to Stengart about the emails or to seek a judicial determination to determine whether or not the communications were privileged. 

In tomorrow’s Advisor, Wood’s takeaways, his tips for your technology policy, plus some good news—your ADA-compliant job descriptions are already written and available in CD form.

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  1. Anonymous        
    February 24, 2011 10:16 am

    Hi there,

    Common sense is not so common.

  2. Anonymous        
    August 8, 2012 11:26 am

    I understand that there is a policy for employers to read employee emails and text messages, but an employer should only be able to do that with probable cause. Below is a blog about employers forcing job applicants to hand over Facebook passwords.
    http://www.gnapartners.com/blog/employers-forcing-job-applicants-to-hand-over-facebook-passwords/