Supreme Courts First Look at Employee Texting Rights Leaves Employers Scratching Heads

The law regarding employee privacy rights when using employer-owned communication devices has not developed nearly as fast as the technology and increasing use of such devices. However, most employers were somewhat comforted when the recent and much discussed U.S. Supreme Court ruling in City of Ontario v. Quon did little to change the controlling law in Virginia. First, the Quonholding is limited to public employers, who must comply with the Constitutions prohibition on unreasonable searches. Private employers have no such requirement and the Supreme Court ruled that the City of Ontario was not unreasonable when it fired an employee following a review of usage of employee pager text messages. Second, while private employers had hoped the Supreme Court would provide guidance applicable to all employers in Quon, the Court essentially left open the question of when a private employee might have a privacy interest in his at-work communication activities. In Virginia, generally, it continues to be the rule that employees have no expectation of privacy when emailing, texting, or otherwise communicating on employer-owned equipment. The best practice for Virginia employers who wish to monitor employee electronic communications is to inform employees that they should have no expectation of privacy when using company computer and communications equipment. Employers should then treat all employees consistently when enforcing policies regarding workplace usage of such equipment. Finally, employers should monitor employee communications for business reasons only such as making sure that employees are engaged in work-related activities and that no computer activities violate other company policies (such as workplace harassment policies). –Anna Richardson Smith