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By Messing Adam & Jasmine | March 1, 2022 | Posted in PORAC LDF News

Danger: Personal Communications at Work Are Not Private

Gary M. Messing
Partner
Matthew Taylor
Associate
Messing Adam & Jasmine LLP

It is worth constantly restating that the law does not protect personal communications over an employer’s electronic systems. The best rule is always to refrain from sending or receiving messages with confidential, personal information on work devices, or even on employer-provided internet.

Courts considering an employee’s right to privacy in the workplace tend to ask two questions: Did the employee have a reasonable expectation of privacy? The answer is “no” in most cases. In the minority of cases where an employee establishes a reasonable expectation of privacy, the answer to the second question — does the employer have a good work-related reason for the search? — becomes relevant. If the answer is “yes,” the employee will likely have no protection from the consequences that a search may turn up.

Employees generally do not have a reasonable expectation of privacy with respect to electronic communications owned or provided by their employer. Commonly distributed work policies providing this warning are ubiquitous. And in many cases, employers go one step further by having employees sign contracts consenting to the employer’s ability to monitor email accounts and online activities. In City of Ontario v. Quon (2010) 560 U.S. 746, the U.S. Supreme Court found that these types of policies were sufficient to limit, if not extinguish, an employees’ expectation of privacy. See also Mintz v. Mark Bartelstein & Associates, Inc. (C.D. Cal 2016) 885 F.Supp.2d 987, 1000-1001 (citing Quon to support its holding that an employee had limited expectation of privacy in a cellular telephone account paid for by an employer). Another court, 25 years ago, concluded that most police officers would expect their employer to monitor their communications over work equipment, given the type of work that they do. Therefore, they should not expect any personal messages over work equipment to be private. See Bohach v. City of Reno (D. Nev. 1996) 932 F. Supp. 1232 (finding that police departments in the ordinary course of business record all phone calls, “for a variety of reasons: to make sure that their dispatches are accurate, to verify information, and to keep a log…”).

Even if a police officer could establish a reasonable expectation of privacy in his or her communications at work, an employer may be able to trump that expectation if it has a legitimate business reason to invade that privacy. Unlike private employees, police officers and other public-sector employees are protected by the Fourth Amendment against unreasonable searches and seizures at work, including those administered as part of non-criminal, administrative investigations. See O’Connor v. Ortega (1987) 480 U.S. 709, 725-726. However, the Fourth Amendment does not bar a warrantless search by the employer if it satisfies the following two factors: (1) it is “justified at its inception,” and (2) if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive…” (Id.).

For example, in Quon, Jeff Quon was a member of the Ontario Police Department’s (OPD) SWAT team. OPD issued pagers capable of sending and receiving text messages to members of the SWAT team to assist with responding to emergency situations. Each pager was allocated a limited number of characters sent or received each month. The SWAT team members were responsible for paying for any fees attributable to any characters sent or received in excess of this limit. Before acquiring the pagers, the City announced a computer usage policy applicable to all employees, which expressly provided that the City retained the right to review all network activity, including email and internet use, without notice. SWAT team members were specifically told by their supervisors that pager messages fell under this policy.

Quon and other SWAT team members repeatedly exceeded their monthly allowance of sent/received characters. As a result, OPD conducted an audit to determine whether it should increase the existing monthly character limit, so that SWAT team members were not unfairly paying for overage fees that were related to messages for police business. In doing so, it reviewed team members’ messages to see whether they were work-related or personal. Transcripts of Quon’s text messages revealed that he sent or received an average of 28 messages per workday, of which only three were related to police business.

Quon subsequently brought a lawsuit claiming that OPD’s search violated his privacy rights. The trial court rejected his claims, and he appealed this decision. The Supreme Court ultimately agreed with this result. In the initial part of its analysis, the court assumed that Quon had a reasonable expectation of privacy in the pager messages, yet despite it, the court concluded that the search was reasonable under the Ortega two-factor test. First, OPD had a legitimate interest in ensuring that employees were not forced to pay out of their own pocket for work-related expenses or that the City was not paying for extensive personal communications. Second, the scope of the search was not “excessively intrusive.” Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only two months when he exceeded the limit. As stated by the court, “[w]hile it may have been reasonable as well for [OPD] to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious” (Quon at 761-762).

In the second part of its analysis, the court appeared to abandon its assumption that Quon’s expectation of privacy was reasonable, reasoning that “[a]s a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny [including] an analysis of his on-the-job communications” (Id. at 762).

The court further stated: “Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises — and given that Quon had received no assurances of privacy — Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations” (Id.).

The court also emphasized that the employer need not utilize the least intrusive search possible to be constitutional.

The above cases also apply to other types of personal communications over work equipment. Personal emails sent through a work account create a similar scenario as in Quon. There is no reasonable expectation of privacy regarding these messages, unless the employer specifically states that they shall remain private. Employees in theory have greater privacy rights with respect to emails sent through a personal email account over a work computer. However, in actuality, these rights are limited by work policies stating that employees’ web activity may be monitored by the employer. As mentioned above, this is the case with respect to most law enforcement agencies and other public-sector employers, which tend to have clear policies limiting expectations of privacy on work equipment.

For the reasons above, any personal communications that may be confidential under the law, such as attorney–client communications, will likely lose the privilege if sent over work equipment. In a lawsuit between an employee and an employer, Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, the defendant employer used emails exchanged between the employee and her attorney as evidence to defend itself against the employees’ claims. The employee cried foul, arguing that the emails were privileged, but the California Court of Appeal rejected this claim. By using the employer’s computer to communicate with her lawyer, in violation of the employer’s communications policy, the emails lost their protection and thus could be used as evidence. The court analogized the emails being sent over the employer’s work computers to an employee consulting with his lawyer in a loud voice in a workplace conference room with the door open.

In light of the foregoing, we urge you to keep in mind the following pointers:

  1. Do not use a department device, account or email address to send or receive any communications or any other information that you would like to keep confidential.
  2. Do not forward any electronic communications concerning union business, disciplinary matters or anything else you wish to maintain as confidential from your personal devices, accounts or email addresses to any department devices, accounts or email addresses. Any copies of these electronic communications so received by the department may also be subject to its review.
  3. Do not send electronic communications containing confidential or privileged information to anyone who may share those communications with management. Also, prior to forwarding any non-work communications, exercise common sense by closely examining whether the communication contains confidential or privileged information about such things as executive sessions of the board of directors or the executive board of your union, disciplinary matters, attorney–client communications, or opinions or analysis by legal counsel. If you feel you must forward a confidential or privileged communication, consider seeking advice from the executive leadership of your union or its legal counsel before doing so, and then forward the communications with a warning that the communications may contain confidential or privileged
    information, the confidentiality of which must be protected.
  4. Disclosing confidential information to unauthorized individuals could result in your union taking disciplinary action against you, and you and the union may be subject to being sued.

There are numerous ways in which confidential information can reach the hands of management. These include inadvertently using a global email address that may include department email addresses or phone numbers that are used by the department. Emails, texts and other electronic communications may be recovered by management while auditing their systems or devices, when responding to discovery requests in litigation or in response to California Public Records Act requests. You also should avoid sharing confidential communications with co-workers who do not have the interests of your union at heart and who may forward them to management. Confidential or privileged information may also be inadvertently passed on when it is contained at the bottom of an email string and is not noticed by the sender.

Finally, if you are very concerned about maintaining the confidentiality of your conversations, consider speaking in person or on the telephone instead of writings. Always assume that what you write may be reviewed by someone who is not the intended recipient. Any message related to or required by work, regardless of whether it is sent via a personal or an employer-owned device, may be subject to disclosure through a Public Records Act request by a third party.

About the Authors

Gary M. Messing is a partner and founding member of the law firm Messing Adam & Jasmine LLP, which predominantly represents public-sector unions and their members in labor relations. He has been representing labor unions, peace officers, firefighters and other public-sector employees throughout California for over 40 years. He is also a PORAC LDF panel attorney.

Matthew Taylor is an associate at Messing Adam & Jasmine LLP, specializing in labor law and representing peace officers and other public employees. Matthew draws from his background in law enforcement and investigations. He served as a police officer in the NYPD. He was also an investigator for the City of New York and a legal intern at the U.S. Attorney’s Office in D.C. He is also a PORAC LDF panel attorney.