Does your organization have a policy regarding personal text messaging with employer owned pagers?  If so, do you follow that policy? Both public and private employers should take notice of a new federal court ruling on the searchability of employee text messages.  However, it is unclear whether this decision will apply as broadly to private employers, as it does to public employers, where the Fourth Amendment does not apply. The case involved the City of Ontario, California and Jeff Quon, a police sergeant.  In 2000, Quon agreed in writing to the City's network usage policy providing that use of City-owned computers and equipment was limited to City business, that users have no expectation of privacy and that personal use is a "significant violation" of  the policy.  At the time, pagers were not supplied to city employees, however, a couple of years later, the City issued pagers to Quon and other employees. 

In 2002, the City Police Department noticed many employees exceeding their monthly character allotment. Suspecting that the increased usage was due to the employees using the pagers for personal benefit, the Department developed an informal policy.  The policy provided that as long as employees paid for overage charges their pager activity would not be audited for personal usage.  Quon exceeded his monthly character allotment several times and, without warning, the Department received and reviewed Quon's text-messaging transcripts from the wireless carrier.  The Department then notified Quon and other employees that many of Quon's messages were personal, and often sexually explicit, in nature.  Quon sued the City, claiming that its review of his text-messages violated his Fourth Amendment and constitutional privacy rights.  The court agreed and noted that the Department secretly reviewed messages that employees reasonably believed were free from third party review and, absent consent, the text-messages were to remain private. 

Any organization issuing employer-owned pagers or similar equipment to employees, should develop a policy governing the use of the device.  Equally important is making sure that when monitoring or otherwise reviewing an employee's electronic communications without the employee's consent, the organization follows its policy to reduce potential liability to the employee

By: Kathy Ossian with contributions from Tamira Cason