Terminating the Employment Relationship

It is important to remember that the Hernandez v. Hillsides case, though decided in the employer's favor, was based on a unique set of facts. Employers under less compelling circumstances and less careful methods of conducting the video surveillance may face a different result. To the extent possible, an employer should provide its employees with notice any time it sets up surveillance cameras or similar monitoring equipment. Even a general statement that the employer may utilize surveillance cameras is better than no notice at all. Notice to employees will reduce or eliminate their expectation of privacy. Nevertheless, there are certain areas that are inherently private, where no surveillance must take place (e.g. restrooms), regardless of notice. 4. E MPLOYEES ’ E LECTRONIC C OMMUNICATIONS In Quon v. Arch Wireless Operating Co. , Inc. , 73 a City contracted with Arch Wireless to provide wireless text-messaging services and received 20 two-way alphanumeric pagers, which the City distributed to its employees. The City’s contract with Arch Wireless provided that each pager would be allotted 25,000 characters per month, after which the City was required to pay overage charges. The City had a general “Computer Usage, Internet and E-mail Policy,” which stated that use of City-owned computers and all associated equipment was limited to City-related business. The City’s official policy specifically reserved the right to monitor employees’ use of the City’s equipment, and it expressly stated that “[u]sers should have no expectation of privacy or confidentiality when using these resources.” A Sergeant in the City’s police department, Quon, signed an “Employee Acknowledgment” indicating that he had read and understood the City’s policy. Further, the City informed its officers (including Quon) in a meeting and in a written memorandum that the policy fully applied to pager messages. Quon exceeded the character limit amount three or four times. On each occasion, Quon’s immediate supervisor informed Quon that if he paid the overage charges, the City would not audit his text messages to confirm whether or not they were work related. Quon paid the City the overage charges each time he was requested to do so. After a period where there were a significant number of overages, the City’s Police Chief ordered an investigation to determine whether officers who were assigned pagers (including Quon) were using them for work related communications, and if so, whether the City needed to increase its character limit agreement with Arch Wireless. The City obtained the transcripts of Quon’s text messages from Arch Wireless without having provided specific notice to Quon or the other senders or recipients of the text messages. It was discovered during the audit that Quon’s text messages were mostly personal in nature, and that many of them were sexually explicit messages between Quon and his wife, and between Quon and other City employees. Quon, his wife, and other employees filed a complaint against ArchWireless alleging violation of the Stored Communication Act, 18 U.S.C. §§ 2701-2711, and against the City, the Police Department, and the Police Chief for violation of their privacy rights under Article 1, Section 1 of the California Constitution. The parties filed several summary judgment motions. The

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 37