By Stephanie Berntsen, Schwabe, Williamson & Wyatt
The average American employee wastes about an hour during each eight-hour workday surfing the Internet. This personal use of company assets – and time – adds up to billions of wasted dollars per year.
However, in implementing strategies to combat personal use of company technology, businesses often forget that employees also have a strong right to privacy under the law. In light of a recent 9th Circuit Court decision, your policies regarding monitoring of computer, Internet, texting and cell phone usage may be invalid.
Your business could be liable for monitoring employees’ use of such technology – leaving you vulnerable to high-dollar lawsuits. But you can protect your business. By creating and properly enforcing guidelines, your business can lawfully ensure that employees do not waste time or resources.
Court decision
The Ninth Circuit, in Quon v. Arch Wireless Operating Co. Inc., found that a California public employer violated an employee’s privacy rights by obtaining and reviewing his text messages.
The employee sent thousands of personal messages from his employer-owned pager while the employer had a “Computer, Internet and Email Usage” policy that said such technology was only to be used for public business. The policy also provided that the employer had the right to monitor usage.
The employee knew about this policy but continued to use the pager excessively. After substantial personal use and resulting charges to the employer, the employer began monitoring the employee’s messages.
The Ninth Circuit held that the employee had a reasonable expectation of privacy regarding the content of text messages – just as with letters, telephone conversations or emails – because despite the “formal” policy allowing Internet monitoring of all employees, the public employer’s actual practice was not to monitor such usage.
The employer’s actual practice created a reasonable expectation of privacy, which the employer violated by obtaining the messages without the employee’s consent.
Insulating your policy
Although Quon involved California parties, it also has serious implications for Washington employers. Washington privacy laws are stricter than the federal and California laws applied in the decision.
In fact, Washington courts have interpreted Washington’s right to privacy as providing more rigorous protection of those rights than the Fourth Amendment.
The Quon decision signals that courts will look beyond the written policy and focus, instead, on the actual practice when it comes to an employee’s privacy rights. This creates an issue for many employers who currently have monitoring policies that are not routinely enforced.
While there is no foolproof way of precluding employee personal use of company equipment, employers may take the following steps to avoid or minimize violating employee privacy rights:
•Establish or revise policies to establish ownership of the equipment, prohibit excessive or improper personal use of the equipment and provide for the employer’s right to monitor and access employee communications while using employer’s equipment or on company time.
•Post these policies in conspicuous places.
•Obtain signed acknowledgment of these policies.
•Enforce the policies by consistently monitoring suspicious usage. Monitoring usage regularly also may help identify violations of other employment policies, such as harassment or other impermissible behavior.
•Clarify that disciplinary action, up to and including termination, may result if an employee violates these policies.
Quon confirms that employees may have reasonable expectations of privacy in personal communications using company equipment unless the employer has the appropriate policy and proactively implements that policy. In the end, having a strong policy prohibiting personal use of company equipment is not enough. If you do not implement and enforce the policy, a court will not do it for you.
Kelly Walsh is an attorney in the Vancouver office of regional law firm of Schwabe, Williamson & Wyatt, focusing her practice in the areas of commercial and business litigation. She can be reached at 360-905-1432 or kwalsh@schwabe.com.
Stephanie Berntsen is an attorney in the firm’s Seattle office, focusing her practice in the areas of employment and securities litigation. She can be reached at 206-689-1235 or sberntsen@schwabe.com.
