Charles W. Miller & Associates

United States Supreme Court Reviews Privacy In the Workplace

Last week, the United Supreme Court did something unusual: they all agreed that text messages on pagers issued to government employees can be searched as long as the government’s acts are reasonable and motivated by a legitimate work-related purpose. See Ontario v. Quon, 560 U.S. __ (2010).

Typically, employees in the private sector have a very low expectation of privacy. Public employees, however, are protected by the 4th Amendment which prohibits “unreasonable searches and seizures.” This rule has been extended to include not just criminal investigations but also other actions taken by governments including investigations into their own employees. Treasury Employees v. Von Raab, 489 U.S. 656,665 (1989).

In Ontario v. Quon, employees were issued pagers with text messaging capabilities. The government was charged overages when employees used exceeded a particular character allotment on the text messages. For several months Quon, an employee issued a pager, exceeded the character allotment and personally paid the overage. His supervisors, wanting to assure that the overages were not being caused by work-related text messages, reviewed a sample of texts that Quon made during work hours. Unfortunately, Quon sent some sexually explicit texts which resulted in discipline.

The Supreme Court considered whether the government violated Quon’s 4th Amendment rights when reviewing transcripts of text messages sent to and from a government-issued pager during work hours. Relying on the case O’Connor v. Ortega, 480 U.S. 709 (1987), the court examined whether 1) the employee had a reasonable expectation of privacy and 2) whether the intrusion was for non-investigatory work-related and reasonable. Finding the government actions were reasonable, the Court reversed the Ninth Circuit’s decision and remanded the case for further proceedings.

If you think your privacy has been violated at work or if you have been subjected to a sexually explicit message from a coworker which you find harassing, you should contact a Kentucky employment attorney.