Supreme Court Review of Quon May Provide Important Guidance for Private Employers

Posted on December 14, 2009 by Privacy and Data Protection Practice Group

The U.S. Supreme Court agreed, today, to review the Ninth Circuit Court of Appeal’s decision in Quon v. Arch Wireless, a case with potentially important implications for private employers. As explained in prior posts, the appellate court held that the City of Ontario Police Department violated a SWAT officer’s reasonable expectation of privacy by reviewing the content of his sexually explicit text messages, even though: (1) the messages had been sent with a Department-issued pager through a service provider under contract with the Department, and (2) the Department’s formal policy informed all SWAT officers that the Department might review their text messages. In reaching that conclusion, the Ninth Circuit relied principally on a statement by the officer in charge of the text messaging program to the SWAT officer that the Department would not review his text messages if he voluntarily paid any overage charges resulting from excessive personal use.

Although there are some differences in the privacy standards applicable to public sector and private employers, the standards are sufficiently similar that the Supreme Court’s decision likely will provide important guidance for employers on at least three issues. First, the law is relatively well settled that private employers can review any communications stored on a corporate e-mail server when the employer notifies employees of the monitoring, typically through an electronic resources policy. Quon is one of the first cases to address whether the same rule applies when the employee’s communication is transmitted through a third-party service provider under contract with the employer. The issue has gained increasing importance as an increasingly large number of employees use text messaging during the work day. (A case currently under consideration by the New Jersey Supreme Court, Stengart v. Loving Care, addresses an employee’s privacy expectations in copies of e-mail stored on a company-issued laptop that were sent through the employee’s personal e-mail account to her attorney.)

Second, the Supreme Court’s decision likely will address how a formal employment policy that otherwise would defeat an employee’s privacy expectation could be countermanded by an informal representation to a specific employee. Here, private employers likely will receive guidance on the types of informal statements that could be sufficient to countermand a formal policy as well as the degree of authority of the person making the informal statement necessary to override the formal policy.

Third, the Supreme Court also granted review on the question whether the senders of text messages to the SWAT officer had a reasonable expectation that his government employer would not read them. This question raises an issue that often is overlooked in cases revolving around an employer’s review of employee e-mail, i.e., the privacy interests of the sender. Without further development, it is difficult to anticipate the extent to which the Supreme Court’s ruling on this issue might affect private employers and what that affect might be.

Notably, the Supreme Court denied the service provider’s request for review of the Ninth Circuit’s ruling that the provider violated the federal Stored Communications Act by disclosing the SWAT officer’s text messages to the Department without his consent. Under the Act, a communications service provider, such as an ISP or cell phone provider, generally cannot disclose stored communications without the sender’s or recipient’s consent. An exception permits disclosure to the subscriber — the Department in the Quon case — when the provider is a “remote computing service.” The Ninth Circuit ruled that a “remote computing service” is akin to an electronic filing cabinet. Because the provider in the Quon case was a facilitator of communications, it was not a “remote computing service” and, therefore, could not take advantage of the exception. With the growing prevalence of “cloud computing” services, the proper definition of a “remote computing service” has become increasingly important. The Supreme Court’s decision to forego review of this issue leaves the Ninth Circuit’s ruling on this issue intact.

At bottom, Quon reflects the dynamic nature of the law governing technology in the workplace as communications technology rapidly moves beyond e-mail, and societal expectations change.

This entry was written by Philip L. Gordon

Photo credit: Niklas Bildhauer
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NLRB Puts a Speed Bump in the Path of Unionized Employers Trying to Keep Their Electronic Resources Policy in Pace with Technological Change

Posted on October 2, 2007 by Dale L. Deitchler

Employers, for the most part, are the kings of the road when it comes to regulating the use of their electronic resources.  However, several recent cases suggest that the National Labor Relations Board (NLRB or “the Board”) may soon be playing the role of traffic cop on the employer-provided segment of the information highway.  In Media General Operation v. NLRB, the Fourth Circuit affirmed the NLRB’s finding of an unfair labor practice against a newspaper which had instructed union members to stop using the company’s e-mail system to distribute union-related messages.  The Fourth Circuit relied upon the well established rule that an employer who permits any non-union use of its e-mail system — even if that non-union use violates a business-use only policy — cannot discriminate against union-related communications.  Around the same time, the Board heard oral arguments on the question whether employers violate the National Labor Relations Act (NLRA) by enforcing a prohibition against all non-business use — whether union or non-union — of their e-mail system.  See Guard Publishing Co. d/b/a The Register-Guard.

On September 10, 2007, the Board highlighted another NLRA-based restriction on the ability of employer’s to set rules for employee use of employer-provided electronic resources. The Board held that a union employer violated the NLRA by implementing a revised e-mail policy without first reaching agreement or impasse with the union.  This ruling will be a speed bump for unionized employers struggling to keep current their policies regulating the use in the workplace of rapidly evolving communications technology and of an ever expanding menu of personal “gadgets” (iPods, Blackberries, camera phones, etc.). 

The recent decision involved California Newspaper Partnership d/b/a ANG Newspapers (ANG), a publisher of five newspapers in the San Francisco Bay Area.  The newspaper company faced a grievance from the Media Workers’ Union for disciplining a reporter who had sent an e-mail to several other union members/employees about union matters in violation of ANG’s policy prohibiting all employees from sending such “broadcast e-mails” on any subject matter.  The union attacked the discipline by arguing that the policy which the reporter allegedly had violated (the “ challenged policy”) was unlawful.  To support that position, the union contended that the challenged policy was a revision of a prior policy and that the newspaper had commenced bargaining over the challenged policy but implemented it unilaterally before reaching agreement or impasse with the union.

ANG did not dispute that the e-mail policy was a mandatory subject of collective bargaining or that it had not completed the bargaining process.  ANG sought to escape these concessions by arguing that the union had waived its right to bargain over the e-mail policy because the collective bargaining agreement conferred on ANG the exclusive right to establish, amend and discontinue rules of conduct and operating policies (the “management-rights clause”).  Rejecting this argument, the NLRB adopted the position of the Administrative Law Judge (ALJ) that the management-rights clause was too vague to act as a waiver of the union’s right to bargain over rules, like ANG’s challenged e-mail policy, that are backed up by discipline.  The NLRB also adopted the ALJ’s position that the collective bargaining agreement’s “zipper clause” — stating that bargaining was concluded with respect to “all proper subjects of bargaining,” even if that subject matter had not actually been raised during negotiations — also was insufficiently specific to constitute a waiver of the union’s bargaining rights.

Ironically, the Union’s defeat of the “challenged policy” was a Pyrrhic victory for the union. The prohibition on broadcast e-mail, which was the basis of the grievance in the first place, was identical in both the challenged policy and its predecessor.  Once the challenged policy was rescinded, its predecessor policy became the controlling policy, including the identical prohibition on broadcast e-mail.  Nonetheless, the lesson for union employers remains the same: an electronic resources policy can not be materially updated without first engaging in collective bargaining over the proposed changes.

This entry was co-authored by Philip L. Gordon.
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