Terminating the Employment Relationship

District Court denied the plaintiffs’ summary judgment in full, and granted in part and denied in part the City and ArchWireless’ summary judgment motions. The case was tried before a jury which upheld the legitimacy of the Chief’s investigation. The trial court determined there was no Constitutional violation. On appeal, the Ninth Circuit Court of Appeals held that that the search of the text messages violated the appellants’ Fourth Amendment and privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and because the search was unreasonable. The Court also held that ArchWireless violated the Stored Communications Act because, as an electronic communications service, its release of the private data required the lawful consent of either the addressee or the recipient of the communications (as the subscriber, the City did not have a right to access the communications). The City appealed the Ninth Circuit’s ruling and the United States Supreme Court agreed to decide the Fourth Amendment questions. The Court unanimously held that the City did not violate Quon’s Fourth Amendments rights by reviewing his text messages. And, in turn, the City did not violate the Fourth Amendment rights of any individuals who sent Quon messages on his City issued pager. Notably, however, the Court’s decision only reviewed the Fourth Amendment arguments and did not address the Ninth Circuit‘s ruling that ArchWireless violated the Stored Communications Act by providing the City with transcripts of Quon’s text messages. Because the Stored Communications Act prohibits third party electronic communications services from disclosing archived messages except to an addressee or intended recipient of such communication, we recommend that employers obtain a written and signed release from all employees that allows the employer access to these communications before the employer issues the equipment to employees.

Because the Supreme Court did not determine whether Quon had a reasonable expectation of privacy in his text messages, this case should serve as a reminder to employees that they do not have an expectation of privacy in their electronic communications sent or received via employer property. An employer’s policy should use broad language to encompass current and emerging forms of electronic communications used in the workplace. Even with a thorough computer, email and technology policy in place, employee monitoring must be supported by legitimate, work-related purposes.

LCW Practice Advisor

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 38