Employee privacy in the workplace has become an increasing thorny issue over the last 10 to 15 years as the methods by which employees communicate with each other and the outside world have multiplied and become more complex. It used to be that privacy issues at work had to do with whether an employee had an expectation of privacy in their workplace locker or on their phone conversations. Now employers have to be concerned about blog postings, chat rooms, email, Twitter, instant messenger, etc. etc. So where does an employees right of privacy end and an employer's right to make sure its employees are doing what they ought to be doing begin? Your guess is as good as mine.
A recent decision by the 9th Circuit Court of Appeals has provided a loud wake-up call to employers who wish to monitor employee communications. In Quon v. Arch Wireless Operating Co, Inc. et al., 529 F.3d 892 (9th Cir. 2008), the court held that the City of Ontario, Calif., violated the state and federal constitutional privacy rights of its police officers when it reviewed their personal text messages.
Importantly, the Court in this opinion did not find it persuasive that the company had a policy stating that electronic emails should not be considered private to be determinative. The Court held that the policy was not specific enough under the circumstances. Does this mean that employers should be regularly reexamining their electronic communications policies to specifically address new forms of electronic communications? In a word, yes.
Read the full opinion here.