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    Opinion at US News and World Report: Bosses Should Be Honest About Their Electronic Privacy Policies

    Lewis Maltby, President of the National Workrights Institute in Princeton, N.J., writes about workplace privacy in an opinion column for US News and World Report. The employer-employee privacy dynamic has been getting more attention lately. Maltby writes about Quon v. Arch Wireless (pdf). In 2008, the Ninth Circuit Court of Appeals ruled that an employer who contracted with an outside firm to transmit text messages could not read the messages unless the employee allowed the company to do so. (The court said: “As a matter of law, Arch Wireless is an ‘electronic communication service’ that provided text messaging service via pagers to the Ontario Police Department. The search of Appellants’ text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope.”)

    [Quon v. Arch Wireless] 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. […]

    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. […]

    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.

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